House of Commons Amendments

Session 2012 - 13
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(6)
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.

(7)
Exemplary damages may be awarded under this section whether or not

another remedy is granted.

(8)
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.”

[As amendments to Commons Amendment 11]

LORD LUCAS
11A
Line 11, leave out from beginning to “, the” in line 24

LORD SKIDELSKY
11B
Line 14, leave out paragraph (b) and insert—

“(b)
in the court‘s opinion, the regulator’s decision was manifestly

irrational in the light of the facts found by the court,”
11C
Line 38, at end insert—

“(7A)
Exemplary damages may be awarded under this section whether or not the

defendant’s conduct was calculated to make a profit which might exceed

compensation payable to the claimant.”
11D
At end insert—

“(9)
A person may be vicariously liable to pay exemplary damages in respect of

another’s conduct; and—

(a)
references to the defendant in this Part include references to a

person vicariously liable in respect of the defendant, and

(b)
references to the defendant‘s means include references to the means

of a person vicariously liable in respect of the defendant.”

12
Insert the following new Clause—

“Relevant considerations

(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).

9

(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

(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.”

LORD SKIDELSKY

[As an amendment to Commons Amendment 12]
12A
Line 13, leave out from “available,” to end of line 14 and insert “whether it was

reasonable for the defendant not to be a member”

13
Insert the following new Clause—

“Amount of exemplary damages

(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—

10

(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.”

LORD SKIDELSKY

[As an amendment to Commons Amendment 13]
13A
Line 16, at end insert—

“(3A)
If the court decides to award exemplary damages—

(a)
it must indicate the amount it has in mind to award irrespective of

the defendant’s means,

(b)
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,

(c)
if an amount of exemplary damages would have been more but for

paragraph (b) the award must specify what the amount awarded

would have been but for that paragraph, and

(d)
for the purposes of this subsection, the defendant’s means include

anything falling to be paid under a contract of insurance against the

risk of an award of exemplary damages.”

14
Insert the following new Clause—

“Multiple claimants

(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”).

(2)
In deciding whether to award exemplary damages under section (Awards

of exemplary damages) or the amount of such damages to award (whether to

one or more of the persons affected), the court must take account of any

settlement or compromise by any persons of a claim in respect of the

conduct.

(3)
But the court may take account of any such settlement or compromise only

if the defendant agrees.

(4)
If the court awards exemplary damages under section (Awards of exemplary

damages) to two or more of the persons affected, the total amount awarded

must be such that it does not punish the defendant excessively.

11

(5)
If the court awards exemplary damages under section (Awards of exemplary

damages) to one or more of the persons affected, no later claim may be made

for exemplary damages as regards the conduct.”
15
Insert the following new Clause—

“Multiple defendants

(1)
Any liability of two or more persons for exemplary damages awarded

under section (Awards of exemplary damages) is several (and not joint or joint

and several).

(2)
Subsection (1) has effect subject to the law relating to 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.”

LORD SKIDELSKY

[As an amendment to Commons Amendment 15]
15A
Line 6, after “to” insert “the vicarious liability and”

16
Insert the following new Clause—

“Awards of aggravated damages

(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.

(2)
Aggravated damages may be awarded against the defendant only to

compensate for mental distress and not for purposes of punishment.

(3)
In this section, “aggravated damages” means damages that were

commonly called aggravated before the passing of this Act and which—

(a)
are awarded against a person in respect of the person’s motive or

exceptional conduct, but

(b)
are not exemplary damages or restitutionary damages.

(4)
Nothing in this section is to be read as implying that, in cases where this

section does not apply, aggravated damages may be awarded for purposes

of punishment.”
17
Insert the following new Clause—

“Awards of costs

(1)
This section applies where—

12

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

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

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

(2)
If the defendant was a member of an approved regulator at the time when

the claim was commenced (or was unable to be a member at that time for

reasons beyond the defendant’s control or it would have been

unreasonable in the circumstances for the defendant to have been a

member at that time), the court must not award costs against the defendant

unless satisfied that—

(a)
the issues raised by the claim could have been resolved by using an

arbitration scheme of the approved regulator, or

(b)
it is just and equitable in all the circumstances of the case to award

costs against the defendant.

(3)
If the defendant was not a member of an approved regulator at the time

when the claim was commenced (but would have been able to be a member

at that time and it would have been reasonable in the circumstances for the

defendant to have been a member at that time), the court must award costs

against the defendant unless satisfied that—

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

an arbitration scheme of the approved regulator (had the defendant

been a member), or

(b)
it is just and equitable in all the circumstances of the case to make a

different award of costs or make no award of costs.

(4)
For the purposes of subsections (2) and (3), a claim could have been

resolved by using an arbitration scheme of an approved regulator if, at the

time when the claim was commenced, the approved regulator had

arrangements in place for an arbitration scheme under which the claim

could have been referred for determination by an arbitrator appointed

under the scheme.

(5)
The Secretary of State must take steps to put in place arrangements for

protecting the position in costs of parties to relevant claims who have

entered into agreements under section 58 of the Courts and Legal Services

Act 1990.

(6)
This section is not to be read as limiting any power to make rules of court.

(7)
This section does not apply until such time as a body is first recognised as

an approved regulator.”

[As amendments to Commons Amendment 17]

LORD SKIDELSKY
17A
Line 4, leave out “relevant”
17B
Line 8, leave out from “commenced” to first “the” in line 11

LORD LUCAS
17C
Line 13, leave out paragraph (a)

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LORD TAYLOR OF HOLBEACH
17D
Line 13, after “could” insert “not”

LORD SKIDELSKY
17E
Line 14, after “regulator” insert “in which the defendant was a participating

member”
17F
Line 17, after “was” insert “a relevant publisher and was”

LORD LUCAS
17G
Line 22, leave out paragraph (a)

LORD TAYLOR OF HOLBEACH
17H
Line 27, leave out subsection (4)

LORD SKIDELSKY
17J
Line 36, at end insert—

“(5A)
Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of

Offenders Act 2012 shall not have effect in publication proceedings.”

18
Insert the following new Clause—

“Meaning of “relevant publisher”

(1)
In sections (Awards of exemplary damages) to (Awards of costs), “relevant

publisher” means a person who, in the course of a business (whether or not

carried on with a view to profit), publishes news-related material—

(a)
which is written by different authors, and

(b)
which is to any extent subject to editorial control.


This is subject to subsections (5) and (6).

(2)
News-related material is “subject to editorial control” if there is a person

(whether or not the publisher of the material) who has editorial or

equivalent responsibility for—

(a)
the content of the material,

(b)
how the material is to be presented, and

(c)
the decision to publish it.

(3)
A person who is the operator of a website is not to be taken as having

editorial or equivalent responsibility for the decision to publish any

material on the site, or for content of the material, if the person did not post

the material on the site.

(4)
The fact that the operator of the website may moderate statements posted

on it by others does not matter for the purposes of subsection (3).

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(5)
A person is not a “relevant publisher” if the person is specified by name in

Schedule (Exclusions from definition of “relevant publisher”).

(6)
A person is not a “relevant publisher” in so far as the person’s publication

of news-related material is in a capacity or case of a description specified in

Schedule (Exclusions from definition of “relevant publisher”).”

[As amendments to Commons Amendment 18]

LORD SKIDELSKY
18A
Line 4, leave out “whether or not”
18B
Line 5, after “profit” insert “and with a turnover of more than 5 times the threshold

for registration for set out in Schedule 1, paragraph 1(1)(a) of the Value Added Tax

Act 1994, as amended from time to time”

LORD LUCAS
18C
Line 15, leave out subsections (3) and (4)

19
Insert the following new Clause—

“Other interpretative provisions

(1)
This section applies for the purposes of sections (Awards of exemplary

damages) to (Meaning of “relevant publisher”).

(2)
“Approved regulator” means a body recognised as a regulator of relevant

publishers.

(3)
For the purposes of subsection (2), a body is “recognised” as a regulator of

relevant publishers if it is so recognised by any body established by Royal

Charter (whether established before or after the coming into force of this

section) with the purpose of carrying on activities relating to the

recognition of independent regulators of relevant publishers.

(4)
“Relevant claim” means a civil claim made in respect of any of the

following—

(a)
libel;

(b)
slander;

(c)
breach of confidence;

(d)
misuse of private information;

(e)
malicious falsehood;

(f)
harassment.

(5)
For the purposes of subsection (4)—

(a)
the reference to a claim made in respect of the misuse of private

information does not include a reference to a claim made by virtue

of section 13 of the Data Protection Act 1998 (damage or distress

suffered as a result of a contravention of a requirement of that Act);



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