Deterrence and Punishment

Abstract

This chapter focuses on a debate that has recently been ignited in England as to whether there may be a role for punitive damages for breach of contract. Should there be a desire to increase the protection afforded to the performance interest by English law, might punitive damages be the answer? It is suggested in this chapter that English law should proceed cautiously. Absent wider reform, the adoption of punitive damages may lead to incoherencies in a system which has hitherto shown reluctance to consider contractual default as being reprehensible. Legal intervention by way of regulation in particular contexts may be more appropriate than punitive damages. Comparative analysis of French law is instructive. In France, the advent of a punitive damages regime is a distinct possibility following proposals of the Catala reform project. In contrast with English law, by reason of the strong emphasis on performance in French remedies for breach of contract, there would be no incongruity in French courts making punitive awards. This contrast is relied upon to reinforce the argument that the introduction of punitive awards into English law would risk creating incoherency and that caution should be exercised before any such reform is embarked upon.