Commentary on Sections Schedule 14: Deployment of the judiciary Section 36: Amount of exemplary damages
475.Section 36 provides that when determining the amount of exemplary damages, the court must have regard to the need for the award to be no more than the minimum needed to punish the defendant, and must ensure that the award is proportionate to the seriousness of the conduct. The court is also required to take account of the nature and extent of loss or harm caused, or intended to be caused, by the defendant’s conduct, and the benefit the defendant derived, or hoped to derive, from that conduct. As with section 35, subsection (4) provides that the court may have regard to the need for deterrence – both of the defendant and others, while subsection (5) makes clear that the court has a general discretion to look at all matters relevant to its decision on determining the amount of exemplary damages.