House of Commons Amendments

Session 2012 - 13
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Other Bills before Parliament

1013

House of Commons

Notices of Amendments

given on

Thursday 14 March 2013

For other Amendment(s) see the following page(s) of Supplement to Votes:

989-1007

Consideration of Bill

Crime and Courts Bill [Lords], As Amended

Exemplary damages

Simon Hughes

Ian Paisley

Mr Ben Bradshaw

Mr Elfyn Llwyd

NC19

To move the following Clause:—

‘Damages and costs

(1)
The court may make an award of exemplary damages in respect of any tort or any

equitable wrong if it considers it appropriate in all the circumstances of the case.

(2)
Exemplary damages may be awarded only if they are claimed.

(3)
Exemplary damges may be awarded only if the court is satisfied that—

(a)
the defendant’s conduct has shown a deliberate or reckless disregard of

any outrageous nature for the claimant’s rights;

(b)
the conduct is such that the court should punish the defendant for it; and

(c)
other remedies would not be adequate to punish that conduct.

(4)
Exemplary damages may be awarded whether or not another remedy is granted.

(5)
The fact that the defendant’s conduct falls outside the following categories is not

a ground for refusing to award exemplary damages—

(a)
oppressive, arbitrary or unconstitutional conduct by a servant of the

government; and

(b)
conduct calculated to make a profit which might exceed compensation

payable to the claimant.

(6)
The civil standard of proof shall apply for the purpose of determining facts

relevant to the question whether to award exemplary damages.

(7)
The decision on whether to award exemplary damages, or on the amount of

exemplary damages, may not be left to a jury.

Notices of Amendments: 14 March 2013
1014

Crime and Courts Bill-[Lords], continued

(8)
Schedule [Exemplary damages], which makes provision supplementary to this

section, shall have effect.

Costs of legal proceedings: publishers

Simon Hughes

Ian Paisley

Mr Ben Bradshaw

Mr Elfyn Llwyd

NC20

To move the following Clause:—

‘(1)
A court determining publication proceedings brought against a regulated

publisher shall (irrespective of the outcome) not award costs against the regulated

publisher unless the court is satisfied that—

(a)
the issues raised by the proceedings could not have been resolved

satisfactorily in accordance with the procedures of the relevant

recognised regulator, or

(b)
in all the circumstances, it is just to award costs against the regulated

publisher.

(2)
A court determining publication proceedings brought against a non-regulated

news publisher shall (irrrespective of the outcome) award costs, on an indemnity

basis or otherwise, against the news publisher unless the court is satisfied that—

(a)
the news publisher was unable to become regulated for reasons beyond

its control;

(b)
it would have been unreasonable in the circumstances to expect the news

publisher to have become regulated;

(c)
the issues raised by the proceedings could not have been resolved

satisfactorily in accordance with the procedures of any relevant

recognised regulator; or

(d)
in all the circumstances, it is just to award costs to make a different award

of costs (or not to award costs).

(3)
Where a person has entered into a conditional fee agreement or a collective

conditional fee agreement which provides for a success fee within the meaning of

section 58(2) of the Courts and Legal Services Act 1990 by which he or she

receives legal services to pursue or defend publication proceedings then, subject

to subsection (5), the general rule that the court will order an unsuccessful party

to pay the costs of a successful party shall not apply.

(4)
The court may apply the general rule where the court finds—

(a)
the claim was fraudulent;

(b)
the claim was so unreasonable that it was or could have been struck out

on the grounds that it was frivolous, vexatious or an abuse of process; or

(c)
in respect of a claim for damages, the cost consequences under Part 36 of

the Civil Procedure Rules apply, save that the proportion of a defendant’s

costs payable by a claimant within the regime, whether fixed or assessed,

shall be limited to 10 per cent of the damages awarded to the claimant.

(5)
Rules of court may reflect or give effect to this section (and may, in particular,

make transitional provision to address situations where a news publisher

becomes, or ceases to be, regulated before or after the commencement of legal

proceedings).

Notices of Amendments: 14 March 2013
1015

Crime and Courts Bill-[Lords], continued

(6)
In this section the following expressions shall be construed in accordance with

Schedule [Costs and Exemplary Damages: Publication Proceedings:

Regulation]—

“publication proceedings”;

“news publisher”;

“regulated publisher”.’.

Simon Hughes

Ian Paisley

Mr Ben Bradshaw

Mr Elfyn Llwyd

NS3

To move the following Schedule:—

‘Exemplary Damages

Introductory

1
This Schedule supplements the provisions of section [Exemplary damages].

2
In this Schedule the following expressions shall be construed in accordance

with Schedule [Costs and Exemplary Damages: Publication proceedings:

Regulation]—

“publication proceedings”;

“news publisher”;

“regulated publisher”.

Relevant considerations

3    (1)
This paragraph applies where a court is deciding whether to award exemplary

damages.

      (2)
The court must have regard to the principle that exemplary damages must not

usually be awarded if the defendant has been convicted of an offence involving

the conduct complained of.

      (3)
Where the defendant is a news publisher which has been found liable in

publication proceedings, the court must take account of the following—

(a)
whether membership of a recognised regulator was available to the

defendant at the time of the events giving rise to the claim;

(b)
if the defendant was a member at that time, whether the recognised

regulator has imposed any sanction for the conduct;

(c)
whether internal compliance procedures of a satisfactory nature were

in place and, if so, the extent to which they were adhered to.

      (4)
In sub-paragraph (3)(c) “internal compliance procedures” means procedures

put in place by the defendant for the purposes of ensuring that—

(a)
material is not obtained, handled or processed by or on behalf of the

defendant in an inappropriate way (having regard to any code of

standards to which the defendant was subject as a result of being a

member of a recognised regulator); and

(b)
material is not published by the defendant in inappropriate

circumstances (having regard to any such code).

      (5)
The court may regard deterring the defendant and others from conduct similar

to the conduct to which the claim relates, as a purpose of punishment.

Notices of Amendments: 14 March 2013
1016

Crime and Courts Bill-[Lords], continued

      (6)
This paragraph does not restrict the court from taking account of any

circumstances it considers relevant.

Amount of exemplary damages

4    (1)
This paragraph applies where the court decides to award exemplary damages

under section [Exemplary damages].

      (2)
The court must have regard to these principles in determining the amount of

exemplary damages—

(a)
the amount must not be more than the minimum needed to punish the

defendant for the conduct complained of; and

(b)
the amount must be proportionate to the seriousness of the conduct.

      (3)
The court must take account of these matters in determining the amount of

exemplary damages—

(a)
the state of mind of the defendant (or of persons acting on behalf of the

defendant);

(b)
the nature of the rights infringed by the defendant;

(c)
the nature and extent of any loss or harm caused, or intended to be

caused, by the defendants conduct;

(d)
the nature and extent of any benefit the defendant derived or intended

to derive.

      (4)
The court may regard to the importance of deterring the defendant and others

from similar conduct.

Taking account of defendant’s means

5    (1)
If the court decides to award exemplary damages it must indicate the amount

it has in mind to award irrespective of the defendant’s means.

      (2)
If the defendant shows that the defendant does not have the means to discharge

an award of that amount without undue hardship, the court must take account

of the defendant’s means in deciding the amount of exemplary damages.

      (3)
If an amount awarded as exemplary damages would have been more but for

subsection (2) the award must specify what the amount awarded would have

been but for that subsection.

      (4)
The defendant’s means include anything falling to be paid under a contract of

insurance against the risk of an award of exemplary damages.

Multiple claimants

6    (1)
This paragraph applies where a defendant is found liable to two or more

persons in respect of a claim.

      (2)
In deciding whether to award exemplary damages, or in deciding the amount

of exemplary damages (whether to one or more of the persons affected), the

court must, if the defendant consents, take account of any settlement or

compromise by any persons of a claim in respect of the conduct to which the

claim relates.

      (3)
If the court awards exemplary damages to two or more of the persons affected,

the total amount awarded must not punish the defendant excessively.

      (4)
If the court awards exmplary damages to any of the persons affected, no later

claim may be made for exemplary damages as regards the conduct to which the

claim relates.

Notices of Amendments: 14 March 2013
1017

Crime and Courts Bill-[Lords], continued

Multiple defendants

7    (1)
Liability of two or more persons for exemplary damages is several (and not

joint or joint and several).

      (2)
Sub-paragraph (1) has effect subject to the law relating to—

(a)
vicarious liability;

(b)
the liability of a partner for the conduct of another partner.

      (3)
Where the liability of two or more persons for exemplary damages is several,

no contribution in respect of the damages may be recovered by any of them

under section 1 of the Civil Liability (Contribution) Act 1978.

Vicarious liability

8    (1)
A person may be vicariously liable to pay exemplary damages in respect of

another’s conduct.

      (2)
Where a person would be vicariously liable to pay exemplary damages

awarded against a defendant, references to the defendant in this Schedule are

to the other person.

      (3)
If the court decides to award exemplary damages and a person is vicariously

liable to pay them in respect of another’s conduct, references to the “defendant

and his means” in section 78L reads “means of the person vicariously liable or

the person in respect of whose conduct he is vicariously liable”.

Awards of aggravated damages

9    (1)
This paragraph applies where—

(a)
a relevant publisher is a defendant to a relevant claim;

(b)
the conduct complained of arose out of activities carried on for the

purposes of, or in connection with, the publication of any material

(whether or not the material was in fact published), and

(c)
the defendant is found liable in respect of the claim.

      (2)
Aggravated damages (meaning damages awarded in respect of a defendant’s

motive or exceptional conduct, not being exemplary or restitutionary damages)

may be awarded only to compensate for mental distress and not for purposes

of punishment (irrespective of whether they otherwise could be awarded for

the purposes of punishment).’.

Awards of exemplary damages

The Prime Minister

Secretary Theresa May

Secretary William Hague

Mr Chancellor of the Exchequer

Secretary Chris Grayling

Secretary Maria Miller

NC21

To move the following Clause:—

‘(1)
This section applies where—

(a)
a relevant claim is made against a person (“the defendant”),

(b)
the defendant was a relevant publisher at the material time,

(c)
the claim is related to the publication of news-related material, and

(d)
the defendant is found liable in respect of the claim.

Notices of Amendments: 14 March 2013
1018

Crime and Courts Bill-[Lords], continued

(2)
Exemplary damages may not be awarded against the defendant in respect of the

claim if the defendant was a member of an approved regulator at the material

time.

(3)
Where the court is not prevented from making an award of exemplary damages

by subsection (2), the court—

(a)
may make an award of exemplary damages if it considers it appropriate

to do so in all the circumstances of the case, but

(b)
may do so only under this section.

(4)
Exemplary damages may be awarded under this section only if they are claimed.

(5)
Exemplary damages may be awarded under this section only if the court is

satisfied that—

(a)
the defendant’s conduct has shown a deliberate or reckless disregard of

an outrageous nature for the claimant’s rights,

(b)
the conduct is such that the court should punish the defendant for it, and

(c)
other remedies would not be adequate to punish that conduct.

(6)
Exemplary damages may be awarded under this section whether or not another

remedy is granted.

(7)
The decision on the question of—

(a)
whether exemplary damages are to be awarded under this section, or

(b)
the amount of such damages,


must not be left to a jury.’.

Relevant considerations

The Prime Minister

Secretary Theresa May

Secretary William Hague

Mr Chancellor of the Exchequer

Secretary Chris Grayling

Secretary Maria Miller

NC22

To move the following Clause:—

‘(1)
This section applies where the court is deciding whether the circumstances of the

case make it appropriate for exemplary damages to be awarded under section

[Awards of exemplary damages].

(2)
The court must have regard to the principle that exemplary damages must not

usually be awarded if, at any time before the decision comes to be made, the

defendant has been convicted of an offence involving the conduct complained of.

(3)
The court must take account of the following—

(a)
whether membership of an approved regulator was available to the

defendant at the material time;

(b)
if such membership was available, the reasons for the defendant not

being a member;

(c)
so far as relevant in the case of the conduct complained of, whether

internal compliance procedures of a satisfactory nature were in place and,

if so, the extent to which they were adhered to in that case.

(4)
The reference in subsection (3)(c) to “internal compliance procedures” being in

place is a reference to any procedures put in place by the defendant for the

purpose of ensuring that—

(a)
material is not obtained by or on behalf of the defendant in an

inappropriate way, and

Notices of Amendments: 14 March 2013
1019

Crime and Courts Bill-[Lords], continued

(b)
material is not published by the defendant in inappropriate

circumstances.

(5)
The court may regard deterring the defendant and others from similar conduct as

an object of punishment.

(6)
This section is not to be read as limiting the power of the court to take account of

any other matters it considers relevant to its decision.’.

Amount of exemplary damages

The Prime Minister

Secretary Theresa May

Secretary William Hague

Mr Chancellor of the Exchequer

Secretary Chris Grayling

Secretary Maria Miller

NC23

To move the following Clause:—

‘(1)
This section applies where the court decides to award exemplary damages under

section [Awards of exemplary damages].

(2)
The court must have regard to these principles in determining the amount of

exemplary damages—

(a)
the amount must not be more than the minimum needed to punish the

defendant for the conduct complained of;

(b)
the amount must be proportionate to the seriousness of the conduct.

(3)
The court must take account of these matters in determining the amount of

exemplary damages—

(a)
the nature and extent of any loss or harm caused, or intended to be caused,

by the defendant’s conduct;

(b)
the nature and extent of any benefit the defendant derived or intended to

derive from such conduct.

(4)
The court may regard deterring the defendant and others from similar conduct as

an object of punishment.

(5)
This section is not to be read as limiting the power of the court to take account of

any other matters it considers relevant to its decision.’.

Multiple claimants

The Prime Minister

Secretary Theresa May

Secretary William Hague

Mr Chancellor of the Exchequer

Secretary Chris Grayling

Secretary Maria Miller

NC24

To move the following Clause:—

‘(1)
This section applies where a relevant publisher—

(a)
is a defendant to a relevant claim, and

(b)
is found liable to two or more persons in respect of the claim (“the

persons affected”).



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