The plaintiff tenant was tricked out of the occupancy of the flat he was living in by a blatant fraud perpetrated by the defendant landlord. He sued for damages for fraud, and was awarded compensation for the inconvenience and discomfort. In a case of deceit and other causes of action, the principles enunciated in Rookes v. Barnard were accepted as applicable where the evidence justified it. In respect of deceit, exemplary damages may sometimes be appropriate, though it is not the function of civil courts to punish.
Damages for physical inconvenience caused by a deceit were in principle recoverable. Widgery LJ also such damages as recoverable as a species of aggravated damages: ‘And I would add that . . where there are aggravating circumstances which aggravate the suffering and injury to the plaintiff, then in compensating him for the wrong which has been done, the damages must be similarly increased. Here one has a plaintiff deprived not only of his valuable protected tenancy, but subjected to considerable inconvenience and unpleasantness. He was, as the evidence relates, induced by this trick of the defendant to set off with his pregnant wife in a van with his furniture and travel from Richmond to Norbury arriving at 7 o’clock on a February evening, and there, thanks to the activities of the defendant, he and his wife were kept out in the cold for two hours whilst they sought to obtain admission. In the end they were forced to go back and take refuge with friends who put them up. I have not the least doubt myself that andpound;100 is not an excessive figure to compensate the plaintiff, and accordingly I endorse without hesitation the figure which the county court judge has assessed for general compensatory damages.’
‘The position with regard to exemplary damages is perhaps a little more difficult. I think Mr. Grant was entirely right in accepting that Lord Devlin’s dicta as to exemplary damages apply to the tort of deceit. As I understand Lord Devlin’s speech, the circumstances in which exemplary damages may be obtained have been drastically reduced, but the range of offences in respect of which they may be granted has been increased, and I see no reason since Rookes v. Barnard [1962] A. C. 1129 why, when considering a claim for exemplary damages, one should regard the nature of the tort as excluding the claim. If the circumstances are those prescribed by Lord Devlin, it seems to me that the fact that the tort was one which did not formerly attract exemplary damages is a matter of no consequence. On the other hand, I am firmly of opinion that, since it is now clear that exemplary damages are punitive only and all cases of aggravation which result in additional injury to the plaintiff are to be dealt with by aggravated damages, then it follows that the circumstances in which exemplary damages are awarded should be exceptional indeed. It is not the function of civil courts to punish. In the past, in my judgment, much confusion has been caused because judges awarding compensation to plaintiffs for ruffled feelings have sometimes said they were awarding exemplary damages. It is clear now that that kind of case does not come under the exemplary heading at all, and in my judgement the number of cases hereafter where exemplary damages are properly to be awarded will in fact be very few. First of all it must be shown that the case comes within the categories prescribed by Lord Devlin and secondly it must be shown that it is one of those special cases in which the punishment of the offender is justified; and it is, I think, implicit in what Lord Devlin says [1964] A.C. 1129, 1227 that exemplary damages are in the main awarded in cases where the defendant realises that he is breaking the law, realises that damages may be awarded against him, but nevertheless makes what has been described as a cynical calculation of profit and loss, and says he will flout the powers of the court because on a purely cash basis he can show profit. In my judgment that is the type of man who is referred to by Lord Devlin as being one against whom an award of exemplary damages is proper to be made.’
Sachs LJ held that the loss flowing from the fraud which could be taken into account included the loss of the protected tenancy under the Rent Acts. He also found in the favour of the Plaintiff that he was entitled to compensation for the physical inconvenience suffered.
On the question of exemplary damages, Sachs LJ found this more difficult: ‘Next one comes to a considerably more difficult question: whether this is a case in which exemplary damages are recoverable, and whether, if so, the sum of andpound;100 was a correct assessment.
. . The first issue which sprang to mind when this appeal was opened was whether in actions for deceit exemplary damages could ever be awarded. There is in the books no case of exemplary damages ever having been awarded for this cause of action, and but for Rookes v. Barnard [1964] A.C. 1129, I doubt if it would have been argued that they could be recovered today. Moreover when the case of Doyle v. Olby (Ironmongers) Ltd. [1969] 2 QB. 158 came to be decided recently, it may be assumed from the fact that no member of the court mentioned this aspect of the measure of damages, that it did not ever, then come to mine, despite the cynical nature of the conduct of the defendants in that case, that exemplary damages could be awarded for this cause of action. When, however, Mr. Grant opened the present case he was minded to concede that in actions for deceit such damages could now be awarded, and, after considering the matter carefully, he in fact did make this concession. He did so, basing himself on that sentence in Lord Devlin’s speech in Rookes v. Barnard [1964] A.C. 1129, 1227, which states: ‘Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay.’ That passage he interpreted as applying to all actions for tort. So far as this case is concerned, there is thus inter partes agreement on that matter. In the upshot, however, it has in any event become unnecessary to decide the point, having regard to the view held by my brethren and myself, that upon the findings of the judge such a claim cannot be supported on the particular facts of the case.’
He was however very cautious about the application of exemplary damages to inter alia, cases of deceit: ‘I state the position carefully in this way, because had that concession not been made, it would have been necessary to have considerably further argument on the point and to consider that argument with care. I would, indeed, need to be persuaded, despite the generality of the phrase already quoted, that this speech which sought so drastically to limit the circumstances in which exemplary damages can be awarded, was by reason of that phrase or otherwise either intended to, or on its proper construction did, enlarge considerably the number of causes of action in which claims to such damages can be maintained. In this behalf I have in mind actions for trover and detinue as well as deceit as instances in which such awards have not previously been made: in particular as regards actions for deceit it would open the door to a flood of claims under that novel head, and that, moreover, despite the fact that in most cases that Theft Act, 1968, provides for the punishment of those who obtain property by fraud.’
Judges:
Sachs, Widgery LJJ, Plowman J
Citations:
[1970] 1 QB 548, [1969] 3 All ER 1404
Jurisdiction:
England and Wales
Citing:
Applied – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
Cited by:
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Lists of cited by and citing cases may be incomplete.
Torts – Other, Damages
Updated: 31 July 2022; Ref: scu.223202
