18 November, 2007

The Mace motion

The Mace has a pre-released motion each year. This year it is:

"This House would introduce punitive damages to civil law in England and Wales"

Whilst I like the motion, as I'm sure a lot of law students do, I'm not sure it's especially fair on non law students. Sure, this is mitigated to some degree by the fact that it's pre-released, but it requires a fair amount of knowledge about the English legal system that is the sort of knowledge which just accumulates gradually rather being something you specifically look up.

Because of the influence of America in films, TV and books, quite often people in the UK don't realise when UK and US law is different. A lot of the time it doesn't matter as the law is similar enough in both but damages in tort is a good example of where they are different.

In English law, exemplary damages are unusual. In American law, they are much more common. Just look at Erin Brockovich or many of the books by authors such as John Grisham. Under English law, damages are supposed to put the claimant back in the position they would have been in had the tort (the wrongful act being complained of) never happened. In American law, damages are awarded to cover this, but damages are awarded on top of this to punish the defendant for having been negligent in the first place (and so, one assumes, in order to deter others from acting in a similar way).

To my mind, this debate seems to create a sub-debate about class action law suits. Again, these are reasonably usual under US law whereas in the UK they are very rare. I must confess, I haven't spent overly long thinking about this motion in any detail but to me it would seem difficult (impossible?) to have one without the other. Class action lawsuits, on the basis of it being run at Cambridge 2006, is a debate in its own right.

I'm not going to the Mace but it'll be interesting to see how people deal with it.


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