Recognition of Punitive Damages in the United Kingdom

Abstract

This chapter addresses the potential recognition of punitive damages in foreign judgments and in the application of foreign law in the courts of the United Kingdom. Before examining these private international law questions, it analyses the position of punitive damages under domestic private law, noting that the availability of punitive damages is now well established in English (but not Scottish) tort law, at least in certain categories of cases, but not in contract law. As a consequence it would be difficult if not impossible to argue that foreign judgments or foreign law which provide for punitive damages in tort claims should automatically be considered as contrary to English public policy – but Scottish public policy may differ, and the position in relation to punitive damages in contract claims may also be different. Although there is limited case law on point, and some authority which suggests otherwise, the better view under English law is that in tort cases only foreign judgments or foreign law which provide for manifestly excessive or disproportionate punitive damages should be refused enforcement or application. With the notable exception of the statutory rules governing foreign ‘multiple’ damages awards, such a refusal should ordinarily leave untouched the compensatory and even non-excessive punitive components of the foreign judgment or foreign law.

Keywords: punitive damages, exemplary damages, multiple damages, foreign judgments, choice of law, public policy