Punishment in Tort: The Context of Ideas in Rookes v. Barnard

Abstract

Abstract Modern corrective justice theorists of tort law remain critical of the Anglo-American common law doctrine that allows a plaintiff to be awarded damages beyond compensation, and for the distinct purpose of punishing a defendant in a civil tort action. From the corrective justice standpoint, punishment is an illegitimate remedial purpose of the law of tort. So much so, that the historical doctrine of civil damages that continues to allow for it – exemplary (or punitive) damages – should be totally abolished. This article revisits a historical tort case that modern corrective justice tort theorists have praised for very nearly abolishing the exemplary damages doctrine in one leading common law jurisdiction: it critically explores the 1964 decision of the Appellate Committee of the United Kingdom House of Lords in Rookes v. Barnard. In doing so, it strives to set this theoretically significant reform of the English law of civil tortious recovery more vividly in the historical context in which it was undertaken. It contends that a deeper appreciation of Rookes’ theoretical significance requires taking fuller account of the context of ideas in which Lord Devlin – the Law Lord to whom the House’s decision on damages is ascribed – undertook it.