HIGH COURT ISSUES A WARNING TO THOSE PLEADING CLAIM FOR EXEMPLARY DAMAGES: THERE MUST BE A PROPER BASIS FOR SUCH A PLEA
In Underwood & Anor v Bounty UK Ltd & Anor  EWHC 888 (QB) Mr Justice Nicklin sent out a warning about the pleading a claim for exemplary damages. Such claims should only be made where there is a proper evidential basis for them. They should not be pleaded as part of a negotiating strategy.
“… as a matter of principle claims for exemplary damages should only be pleaded where there is a proper basis to do so and supported by admissible evidence or in the expectation that such admissible evidence will be available at trial.”
The judge dismissed the claimants’ claim against the defendant health authority for breaches of the Data Protection Act and misuse of private information. When dismissing the claim the judge
As a result of my findings, judgment will be entered for the Second Defendant on the Claimants’ claim. In consequence, no issue as to remedies arises. However, I should record that the claim for exemplary damages ought never to have been included against the Second Defendant. On behalf of the Claimants, Mr Archer did not press the claim at trial (but neither did he formally withdraw it). Claims for exemplary damages are wholly exceptional. The cases in which such damages can properly be claimed are very few; those in which they are awarded fewer still. It is never appropriate to add a claim for exemplary damages simply to mark how upset the claimant is about the defendant’s conduct, or as some sort of negotiating strategy. The Particulars of Claim did not disclose a proper case for an award of exemplary damages against the Second Defendant. Happily, it appears that no significant time or costs has been expended on this issue, but as a matter of principle claims for exemplary damages should only be pleaded where there is a proper basis to do so and supported by admissible evidence or in the expectation that such admissible evidence will be available at trial.