12. Remedies and Costs

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Glossary of Legal Terms
For my employment law students, we discuss how torts are legal rules developed by judges over time when they think that someone ought to be prohibited from doing something to someone else. Alcohol may also impact balance, coordination, and motor skills, and so you should also be mindful of how much you drink. Simpson murder trial , the jury was not convinced beyond reasonable doubt that O. Related to defamation in the U. Phone Number Don't worry. In order to get to the wharf from which the ferry would depart, he had to go through the trunstile operated by the defendants. Expiration is not a valid, future date.

2315.21 Punitive or exemplary damages.

Jones v. Tsige: New Tort of “Intrusion Upon Seclusion” Recognized by Court of Appeal!

Civil Contempt — Contempt can be civil or criminal depending on the purpose the court seeks to achieve through its punishment. Contempt is civil when the purpose of punishment is to coerce the defendant to perform an act previously ordered by the court, which the defendant has not done, such as paying child support. Compare with Criminal Contempt. Civil Procedure - The set of rules and process by which a civil case is tried and appealed, including the preparations for trial, the rules of evidence and trial conduct, and the procedure for pursuing appeals.

Class Action - A lawsuit brought by one or more persons on behalf of a larger group. Clear and Convincing Evidence - Standard of proof commonly used in civil lawsuits and in regulatory agency appeals. It governs the amount of proof that must be offered in order for the plaintiff to win the case.

Clemency or Executive Clemency - Act of grace or mercy by the president or governor to ease the consequences of a criminal act, accusation, or conviction. It may take the form of commutation or pardon. Closing Argument - The closing statement, by counsel, to the trier of facts after all parties have concluded their presentation of evidence. Collateral Estoppel — Rule that bars relitigation between the same parties of a particular issue or determinative fact when there is a prior judgment.

Commit - To send a person to prison, asylum, or reformatory by a court order. It derives legal principles from the statements by judges in their written opinions, rather than from statutes enacted by legislative bodies. Commutation - The reduction of a sentence, as from death to life imprisonment. Co-Defendants - More than one person arrested and charged on the same criminal incident. See also contributory negligence. Compensatory Damages — Damages awarded to compensate the nonbreaching or injured party.

Due process prohibits the government from prosecuting a defendant who is not competent to stand trial. Competent Witness — Every person is considered competent to be a witness. Complainant - The party who complains or sues; one who applies to the court for legal redress. Also called the plaintiff. Complaint — [Civil] The initial paperwork filed in a civil action that states the claim for which relief is sought; in the complaint the plaintiff states the wrongs allegedly committed by the defendant.

Conciliation - A form of alternative dispute resolution in which the parties bring their dispute to a neutral third party, who helps lower tensions, improve communications, and explore possible solutions. Conciliation is similar to mediation, but it may be less formal. Concurrent Jurisdiction — Authority vested in more than one court to hear and resolve specific types of disputes. Concurrent Sentences - Sentences of imprisonment for conviction of more than one crime, to be served at the same time, rather than one after the other.

Condemnation - The legal process by which the government takes private land for a public use, paying the owners a fair price as determined by the court. Conditions of Release - Conditions upon which an arrested person is released pending trial.

Consecutive Sentences - Successive sentences of imprisonment, one beginning at the expiration of another, imposed against a person convicted of two or more crimes. Conservators have somewhat less responsibility than guardians. Consideration — A bargained-for benefit or right.

Consideration may be a promise to perform a certain act — for example, a promise to deliver goods, a promise not to do something, payment, or a promise to pay money, among other things.

Whatever its particulars, consideration must be something of value to the people who are making the contract. Consolidation - Joinder of two or more separately filed criminal or civil complaints, so that the charges may be tried together. Contempt of Court —Behavior intended to lessen the dignity of a court. There are two types of contempt, direct and indirect. When the contumacious contemptuous conduct occurs before the judge, the contempt is direct and may be punished summarily.

All other conduct not witnessed by the judge is indirect contempt. Before punishing indirect contempt, the court must give the accused party notice and an opportunity to be heard. See also Civil Contempt and Criminal Contempt. Continuance - Deferment of a trial or hearing to a later date. Contraband - Articles, the possession of which is prohibited by law.

Contract - An agreement between two or more persons that creates an obligation to do or not to do a particular thing. A contract must have something of value promised or given, and a reasonable amount of agreement between the parties as to what the contract means.

The parties must be legally capable of making binding agreements. New Mexico has abandoned the doctrine of contributory negligence in favor of comparative negligence. Conviction - A judgment of guilt against a criminal defendant.

Corpus Delicti - Body of the crime. The objective proof that a crime has been committed. It sometimes refers to the body of the victim of a homicide or to the charred shell of a burned house, but the term has a broader meaning.

For the state to introduce a confession or to convict the accused, it must prove a corpus delicti, that is, the occurrence of a specific injury or loss and a criminal act as the source of that particular injury or loss. Corroborating Evidence - Supplementary evidence that tends to strengthen or confirm the initial evidence. Costs - Fees required in the course of a law suit, beginning with the docketing or filing fee, and may include service fees, witness fees, publication fees, etc.

Does not include attorney fees. Counsel - Legal adviser; a term used to refer to lawyers in a case. Counterclaim - A claim made by the defendant in a civil lawsuit against the plaintiff. In essence, a counter lawsuit within a lawsuit. Court - Government entity authorized to resolve legal disputes. Court Recorder - A deputy clerk who maintains the verbatim record of court proceedings on tape. Court Reporter - A certified person who maintains the verbatim record of court proceedings.

Court Rules — Procedural rules adopted by a court that govern the litigation process. Court rules often govern the format and style of documents submitted to the court. Criminal Contempt - A criminal contempt is an act done in disrespect of the court or its process or which obstructs the administration of justice or tends to bring the court into disrepute. Criminal contempt can be direct or indirect. Direct contempt involves disorderly or insolent behavior in the presence of the judge that interferes with the course of a judicial proceeding; it is punishable summarily i.

Indirect contempt involves willful disobedience of court orders away from the court, which tend to impede justice. For example, refusing to carry out lawful court orders, preventing service of process, withholding evidence, and bribing a witness are all considered indirect criminal contempt. A person charged with indirect contempt is entitled to notice and a hearing.

Cross-Claim - A claim by codefendants or coplaintiffs in a civil case against each other and not against persons on the opposite side of the lawsuit. Cross-Examination - The questioning of a witness produced by the other side. Cumulative Sentences - Sentences for two or more crimes to run consecutively, rather than concurrently. Damages - Money awarded by a court to a person injured by the unlawful act or negligence of another person.

Decision - The judgment reached or given by a court of law. Declaratory Judgment - A judgment of the court that explains what the existing law is or expresses the opinion of the court as to the rights and status of the parties, but which does not award relief or provide enforcement. Decree - An order of the court. A final decree is one that fully and finally disposes of the litigation. An interlocutory decree is a preliminary order that often disposes of only part of a lawsuit.

Libel is published defamation, whereas slander is spoken. Default - A failure to respond to a lawsuit within the specified time. Default Judgment - A judgment entered against a party who fails to appear in court or respond to the civil complaint or petition. Defendant - In a civil case, the person being sued. In a criminal case, the person charged with a crime. Deferred Sentence — A sentence that is postponed to a future time.

After conviction, the judge does not announce or impose a sentence, but defers sentencing to a future date so that the defendant will complete certain conditions, such as attending driving school or completing a probationary period. Deficiency Judgment — Judgment for a creditor for an amount equal to the difference between the amount owed by the debtor and the amount collected from sale of the collateral.

Demand for Discovery - Demand by the defense attorney to the prosecutor to furnish material information on a case. Demanding State - The state seeking return of a fugitive. Deposition - An oral statement made before an officer authorized by law to administer oaths.

Such statements are taken to examine potential witnesses, to obtain discovery to be used later in trial. Testimony of a witness other than in open court. Descent and Distribution Statutes - State laws that provide for the distribution of estate property of a person who dies without a will.

Same as intestacy laws. Designee - A person appointed by a judge to act for the court to set conditions of release for any person arrested at a time when the judge is not available. Direct Evidence - Proof of facts by witnesses who saw acts done or heard words spoken. Direct Examination - The first questioning of witnesses by the party on whose behalf they are called. Directed Verdict - Now called judgment as a matter of law. An instruction by the judge to the jury to return a specific verdict.

It is more severe than censure an official reprimand or condemnation and suspension a temporary loss of the right to practice law. Discharge of bond - A court order to release a bond. Disclaim - To refuse a gift made in a will. Discovery — Investigation and gathering of information by opposing parties prior to going to trial. The tools of discovery include: Discretion - A power or right conferred on a judge to act according to the dictates of his own judgment and conscience, uncontrolled by the judgment or conscience of others.

Dismissal — An order or judgment disposing of a case without a trial. Disposition - The sentencing or other final settlement of a case. Dissent — Verb To disagree.

Noun An appellate court opinion setting forth the minority view and outlining the disagreement of one or more judges with the decision of the majority. Diversion - The process of removing some minor offenses from the full judicial process, on the condition that the accused undergo some sort of rehabilitation or make restitution for damages.

Docket - A list of cases to be heard by a court or a log containing brief entries of court proceedings. Docket Call - The proceeding in which a judge assigns trial dates or takes pleas. Docket Number — The numerical designation assigned to each case by the court. A person may have several residences, but only one domicile. Double Jeopardy - Putting a person on trial more than once for the same crime.

It is forbidden by the Fifth Amendment to the U. Due Process of Law - The right of all persons to receive the guarantees and safeguards of the law and the judicial process. Elements of a Crime - Specific factors that define a crime and which the prosecution must prove beyond a reasonable doubt in order to obtain a conviction.

Eminent Domain - The power of the government to take private property for public use through condemnation. En Banc - All the judges of a court sitting together. Appellate courts can consist of a dozen or more judges, but often they hear cases in panels of three judges. If a case is heard or reheard by the full court, it is heard en banc. Endorsed - Stamped with the seal of the court indicating the date and time of filing with the court.

Enjoining - An order by the court telling a person to stop performing a specific act. Entry of Judgment or Order - The filing of a written, dated and signed judgment or order.

Court decisions have established that this guarantee requires that courts be open to all persons on the same conditions, with like rules of evidence and modes of procedure; that persons be subject to no restrictions in the acquisition of property, the enjoyment of personal liberty, and the pursuit of happiness, which do not generally affect others; that persons are liable to no other or greater burdens than those are laid upon others; and that no different or greater punishment is enforced against them for a violation of the laws.

Equity - Generally, justice or fairness. Historically, equity refers to a separate body of law developed in England in reaction to the inability of the common-law courts, in their strict adherence to rigid writs and forms of action, to consider or provide a remedy for every injury.

The king therefore established the court of chancery to do justice between parties in cases where the common law would give inadequate redress. The principle of this system of law is that equity will find a way to achieve a lawful result when legal procedure is inadequate. Remedies such as restraining orders and injunctions are equitable remedies. Equity and law courts are now merged in NM. Escrow - Money or a written instrument such as a deed that, by agreement between two parties, is held by a neutral third party held in escrow until all conditions of the agreement are met.

It does not include life insurance proceeds unless the estate was made the beneficiary or other assets that pass outside the estate like a joint tenancy asset. In addition to federal estate taxes, many states, including New Mexico, have their own estate taxes. Evidence - Testimony or exhibits received by the court at any stage of court proceedings.

Examination — The questioning of a witness under oath. These are no longer required to preserve error in New Mexico courts. Also, in regulatory cases, objections by either side to points made by the other side or to rulings by the agency or one of its hearing officers. Exclusionary Rule - The rule preventing illegally obtained evidence, such as property found during an illegal search, from being used in any trial.

Execute - To complete the legal requirements such as signing before witnesses that make a will valid. Also, to execute a judgment or decree means to put the final judgment of the court into effect. Executor - A personal representative, named in a will, who administers an estate. Exempt Property — In collection, execution, and bankruptcy proceedings, this refers to certain property protected by law from the reach of creditors. Exhibits — A document or item which is formally introduced in court and which, when accepted, is made part of the case file.

Exigent Circumstances - An emergency, demand, or need calling for immediate action or remedy that, for instance, would justify a warrantless search. Exonerate - Removal of a charge, responsibility or duty. Ex Parte - On behalf of only one party, without notice to any other party. For example, a request for a search warrant is an ex parte proceeding, since the person subject to the search is not notified of the proceeding and is not present at the hearing.

Ex Parte Communication — Communication about a lawsuit between a judge and one party, witness, attorney, or other person interested in the litigation when all of the parties are not present and the absent party did not have notice. Ex Parte Proceeding - The legal procedure in which only one side is present or represented. It differs from the adversary system or adversary proceeding, and is only lawful in limited circumstances.

For example, a hearing for a temporary restraining order. Ex Post Facto - After the fact. The Constitution prohibits the enactment of ex post facto laws. These are laws that permit conviction and punishment for an act that was lawful at the time it was performed.

Express Warranty - An affirmation of fact or promise made by the seller to the buyer that is relied upon by the buyer in agreeing to the contract.

Expungement - Official and formal erasure of a record or partial contents of a record. Extenuating Circumstances - Circumstances that render a crime less aggravated, heinous, or reprehensible than it would otherwise be.

Extrinsic - Foreign, from outside sources. Family Allowance - A small amount of money set aside from the estate of the deceased. Its purpose is to provide for the surviving family members during the administration of the estate.

Felony — A crime that allows a defendant to be imprisoned for more than one year upon being found guilty. Filed in Open Court - Court documents entered into the file in court during legal proceedings.

Final Order — An order that ends the lawsuit between the parties, resolves the merits of the case, and leaves nothing to be done but enforcement. Finding - Formal conclusion by a judge or regulatory agency on issues of fact. Also, a conclusion by a jury regarding a fact. Generally, the person comes before a judge within hours of the arrest. Also called initial appearance.

Foundation - Preliminary questions to a witness to establish admissibility of evidence; i. Fraud - Intentional deception to deprive another person of property or to injure that person in some way.

Fruit of the Crime - Property acquired by means and in consequence of the commission of a crime, and sometimes constituting the subject matter of the crime. Fruit of the Poisonous Tree - Property seized or statements made subsequent to and because of an illegal search or interrogation. Fruit of the poisonous tree is generally not admissible in evidence because it is tainted by the illegal search or interrogation.

Fugitive - A person who flees from one state to another to avoid prosecution. General Damages - Compensation for the loss directly and necessarily incurred by a breach of contract. General Jurisdiction - Refers to courts that have no limit on the types of criminal and civil cases they may hear. Good Faith — Honest intent to act without taking an unfair advantage over another person. This term is applied to many kinds of transactions. Good Time - A reduction in sentenced time in prison as a reward for good behavior.

It usually is one-third to one-half off the maximum sentence. Grand Jury - A jury of inquiry convened to determine whether evidence against a defendant justifies issuing an indictment; comprised of not more than 18 and not less than 15 persons, with at least 12 concurring before an indictment may be returned. Grantor or Settlor - The person who sets up a trust.

Guardian - A person appointed by will or by law to assume responsibility for incompetent adults or minor children. If both die, it usually will be a close relative. Harmless Error - An error committed during a trial that was corrected or was not serious enough to affect the outcome of the trial and therefore was not sufficiently harmful prejudicial to require that the judgment be reversed on appeal.

Hearing -A proceeding, generally public, at which an issue of fact or law is discussed and either party has the right to be heard. Hearsay — Testimony by a witness concerning events about which the witness has no personal knowledge. Hearsay testimony conveys not what the witness observed personally, but what others told the witness or what the witness heard others say.

Hearsay is usually not admissible as evidence in court because of its unreliability. Hung jury - Jury unable to reach a verdict. A trial ending in a hung jury results in a retrial with a new jury. Immunity - A grant by the court assuring someone that they will not face prosecution in return for their providing criminal evidence. Impeachment of a Witness - An attack on the credibility believability of a witness, through evidence introduced for that purpose.

Implied Consent — Knowing indirectly through conduct or inaction that a person would agree or give permission. Implied Warranty of Merchantability — An assumption in law that the goods are fit for the ordinary purposes for which such goods are used. This implied warranty applies to every sale by a merchant who deals in goods of the kind sold. Inadmissible - That which, under the rules of evidence, cannot be admitted or received as evidence.

In Camera - In chambers or in private. In-Custody Arraignments jail cases — Arraignment while the defendant remains in jail because defendant has not been released on bond or by other means. Indeterminate Sentence - A sentence of imprisonment to a specified minimum and maximum period of time, specifically authorized by statute, subject to termination by a parole board or other authorized agency after the prisoner has served the minimum term.

Indictment — The written accusation by a grand jury that charges a person named in the indictment with the violation of a law. Indictments are used for felony charges, not misdemeanors. Indigency - Financial inability to hire a lawyer or pay court costs.

Indigent - Needy or impoverished. Information - An accusation against a person for a criminal offense, without an indictment; presented by the prosecution instead of a grand jury. Informations are used for felony charges, not misdemeanors. Infraction - A violation of law not punishable by imprisonment. Minor traffic offenses generally are considered infractions. The heir or beneficiary pays this tax. Also called first appearance. Injunction - Writ or order by a court prohibiting a specific action from being carried out by a person or group.

A preliminary injunction is granted provisionally, until a full hearing can be held to determine if it should be made permanent. Inspectorial Search - An entry into and examination of premises or vehicles by an inspector for the identification and correction of conditions dangerous to health or safety.

Also called charge to the jury. Intangible assets - Nonphysical items that have value, such as stock certificates, bonds, bank accounts, and pension benefits. Intangible assets must be taken into account in estate planning and divorce. Interlocutory - Provisional; not final. An interlocutory order or an interlocutory appeal concerns only a part of the issues raised in a lawsuit. Interpleader — An action in which a third person asks the Court to determine the rights of others to property held—but not owned—by the third person.

Interrogatories - Written questions asked by one party in a lawsuit for which the opposing party must provide written answers. Intervention - An action by which a third person that may be affected by a lawsuit is permitted to become a party to the suit. Inter Vivos Trust - Another name for living trust. Invoke the Rule - Separation and exclusion of witnesses other than parties from the courtroom. Irrevocable Trust - A trust that, once set up, the grantor may not revoke.

The disputed point in a disagreement between parties in a lawsuit. To send out officially, as in to issue an order. Joinder — Combining charges or defendants on the same complaint. Where a crime is committed by two people, both may be charged on one complaint. Joinder also applies in civil cases, where parties and claims may be joined in one complaint.

Joint and Several Liability - A legal doctrine that makes each of the parties who are responsible for an injury liable for all the damages awarded in a lawsuit if the other responsible parties cannot pay. Joint Tenancy - A form of legal co-ownership of property also known as survivorship. At the death of one co-owner, the surviving co-owner becomes sole owner of the property. Tenancy by the entirety is a special form of joint tenancy between a husband and wife.

Judge - An elected or appointed public official with authority to hear and decide cases in a court of law. A judge Pro Tem is a temporary judge. Judgment - The first disposition of a lawsuit. Judicial Review - The authority of a court to review the official actions of other branches of government. Also, the authority to declare unconstitutional the actions of other branches. Jurat - Certificate of officer or person whom writing was sworn before.

Jurisdiction is usually composed of personal jurisdiction authority over persons and subject matter jurisdiction authority over types of cases. Jurisprudenc e - The study of law and the structure of the legal system. Hederman J, in the same case, also stated that the exemplary damages should bear some relation to the damages awarded in compensation, and reduced the exemplary award accordingly.

The principle that exemplary damages should be in proportion to compensation awarded in the same case is a useful means of preventing exorbitant awards.

It is, however, a somewhat arbitrary limitation. Exemplary damages and compensatory damages have, as discussed above, very different purposes. They are assessed according to entirely different principles. There is therefore no natural or necessary correlation between them. There may be cases where extremely malicious behaviour on the part of a defendant has, fortuitously, resulted in relatively minor injury to the plaintiff; the contrary also applies.

The facts of the case of Johanson v Combustion Engineering 28 provide an illustration of this. Given the emphasis placed by the Irish courts on the use of exemplary damages to defend and vindicate constitutional rights, there could well be cases where the importance of the rights at issue and the extent of the defendant's disregard of them could justify a large exemplary award, irrespective of the actual damage caused.

It is interesting to note the approach taken by the courts in New Zealand, where, in personal injury cases arising out of accidents, no compensatory damages are available.

See supra , Chapter 1 at paras. See McIntyre v Lewis, op. The facts are set out in Appendix 1. McCarthy J dissented on this point. To impose a strict correlation between the quantum of exemplary damages and that of compensatory damages in the same case is to introduce a degree of inflexibility into the law and, possibly, to undermine the effective and appropriate deterrent effect of some exemplary awards.

The Commission does not therefore make any recommendation as to a strict rule of proportion between the two categories of damages. However, we do recommend, in the spirit of existing legislation, a general principle that exemplary damages should bear some reasonable relation to compensatory damages, taking into account the circumstances of the case and the public interest in deterring and expressing condemnation of the wrongdoing involved.

As noted above, one of the advantages of exemplary damages is that their quantum can be adapted to the circumstances of each case.

The quantum of exemplary damages is not fixed, and this allows the courts to achieve a measure of real deterrence even in respect of wealthy corporate defendants. We consider that measures to cap exemplary damages across the board are not the most appropriate means of limiting exemplary damages quantum. Caps are a relatively arbitrary and inflexible means of limiting quantum. A cap on exemplary damages quantum would be an effective, but blunt implement with which to ensure that quantum is not excessive.

A cap would tend to prevent an award of exemplary damages from perhaps having an appropriate deterrent effect. Since caps will tend to standardise the level of exemplary damages awards, regardless of the financial circumstances of the defendant, they are likely to induce a situation where exemplary damages make only a minimal impact on more wealthy defendants.

We recognise that the imposition of caps could be necessary in situations where the quantum of exemplary damages was out of control, as is perceived, by some commentators, to be the case in the United States.

In this jurisdiction, however, exemplary damages have been awarded in relatively few cases and have not been excessive. The Commission does not recommend that statutory caps should be imposed on, aggravated, exemplary or restitutionary damages. Donselaar v Donselaar [] 1 NZR It should be noted that the plaintiff must, in accordance with the principle enunciated in Rookes v Barnard, op.

As we noted in our Consultation Paper, there is inevitably some overlap in the effects of the various categories of damages, even when their distinct purposes are clearly defined. Compensatory damages, though designed exclusively to compensate, may often have some incidental punitive or deterrent effect as exemplary damages have an incidental compensatory effect. In cases where there is a relatively large award of compensatory damages, there is no necessity for a further award of exemplary damages.

The Commission recommends that where compensatory including aggravated damages have a sufficiently punitive and deterrent effect, no additional award of exemplary damages should be made. We regard this essential and clear-cut rule as best stated in the form of legislation. By section 1 of the Courts Act, , jury trial was abolished for High Court personal injury actions, subject to some particular exceptions.

Actions such as defamation actions, and actions for false imprisonment, intentional trespass to the person and malicious prosecution, often still involve a jury, 36 and, in such cases, it is the jury that assesses the amount of damages, including exemplary damages, to be awarded.

In defamation cases in particular, the suggested inconsistency of assessments of damages by juries has frequently been blamed for exemplary awards that are disproportionate or excessive. But it must be. This point was also noted by Lord Devlin in Rookes v Barnard, ibid.

On the other hand, it should be remembered that many jury verdicts come in at sums expected by lawyers involved, and that it is rare that there are outlandish awards which attract notoriety and are often the subject of notable appeal hearings. If it is considered that these guidelines, or the rigour with which they are applied, are insufficient, then it is open to either the legislature or the courts to set out more concrete guidelines, for example, setting maximum amounts for exemplary awards in particular torts.

However, as we have indicated above, we do not favour this approach, as there may be good reasons why, on the individual circumstances of the case, an exemplary damages award should be considerably higher than other exemplary awards in respect of the same tort. There may be a fear that the jury will misunderstand or simply ignore these constraints, and make an excessive award regardless of the judge's advice.

The jurors may also fail to comprehend the subtle distinction between aggravated and exemplary damages. Where a jury does make an exemplary award that appears grossly excessive, there is of course the possibility that the award can be appealed to the Supreme Court where it may be overturned or reduced. Modern juries, however, are better educated and generally careful and conscientious in following directions clearly given by a presiding judge.

The primary options for reform in respect of these difficulties, in ascending order of radical change, are:. The judge in the case to set out a maximum and a minimum sum of damages within which the jury should make an award. A provision that, even where the jury determines compensatory damages the judge, and not the jury, should assess exemplary damages leaving the jury, however, to determine whether exemplary damages should be awarded.

A provision that both the question of whether exemplary damages should be awarded and the assessment of such damages should be a matter for the judge rather than the jury. Options 2 and 3 would involve some restriction of the jury's role in assessment, without removing that function from them. On this question, it is useful to consider the recent judgement of the Supreme Court in de Rossa v Independent Newspapers , 38 where the majority rejected submissions that guidelines should be.

Hamilton CJ considered that if the suggested guidelines 39 were given to the jury:. I am satisfied that the giving of such figures, even though only by way of guideline, would constitute an unjustifiable invasion of the province or domain of the jury.

In relation to options 4 and 5, in the Report on the Civil Law of Defam ation, the Law Reform Commission recommended that, in defamation actions, the judge should determine both the categories of damages to be awarded and the quantum of such damages.

Given that the Supreme Court has, in a series of recent cases, set about defining and distinguishing the various categories of damages, the Commission considers that the argument as to the indeterminacy of the categories of damages has less weight now than formerly.

Recent judgments of the Supreme Court have clarified the issue of the categories of damages; the distinct nature of each of the non-compensatory categories is set out in this paper. There is no reason why a jury should be incapable of determining whether the actions of a defendant warrant some measure of exemplary damages.

However, there is a distinction on which the difference between options 4 and 5 is based between this issue and the much more subtle and difficult task of assessing the precise sum of damages which is appropriate in all the circumstances in order to punish and deter effectively. In this task, the judge has the advantage of experience and training over the jury, and, although exemplary damages will not, of their nature, be easy to calculate precisely, there is likely to be less risk of a grossly disproportionate or unfair award where the quantum is assessed by an experienced judge.

With the exception that the jury would be able to determine that only nominal damages should be awarded. Lord Woolf MR in Thompson v Commissioner of Police 46 also pointed to the difficulties associated with jury assessment. Referring to the English Law Commission's provisional conclusion that exemplary damages assessment should continue to be a function of the jury, 47 he said:.

It must at present be very difficult for a jury to understand the distinction between aggravated and exemplary damages when there is such a substantial overlap between the factors which provide the sole justification for both awards. The extent to which juries fluctuate in the awards which they make Lord Woolf nevertheless noted that there were arguments in favour of the retention of assessment by juries:.

It is desirable for these to be determined by the plaintiffs' fellow citizens rather than judges, who like the police are concerned in maintaining law and order. Similarly the jury because of its composition, is a body which is peculiarly suited to make the final assessment of damages, including deciding whether aggravated or exemplary damages are called for in this area of litigation, and for the jury to have these important tasks is an important safeguard of the liberty of the individual citizen.

Consultation Paper of the English Law Commission: Aggravated, Exemplary and Restitutionary Damages , No. The English Law Commission's final recommendation in its Report on Aggravated, Exemplary and Restitutionary Damages , in contrast to its provisional conclusion, was that the assessment of exemplary damages should always be made by a judge rather than a jury. The judge should have this role, in the Law Commission's view, even in cases where the jury was responsible for assessing compensatory and restitutionary damages.

One of the primary reasons for the English Law Commission's recommendation in favour of judicial assessment of exemplary damages was the fact that juries do not give reasons for their decisions, whilst judges usually do. The Commission considered that the goals of moderation and proportionality in the assessment of exemplary damages would be furthered if the assessment of such damages were regularly accompanied by reasons for the award and the quantum of the award.

It may be argued that if, as at present, exemplary damages are assessed by a judge in the majority of tort cases and by a jury in cases of non-personal injury torts such as defamation, there is a risk of inconsistency in the levels of exemplary damages as between torts. There is the possibility, under the current law, that a defendant found to have published a defamatory article could be subjected to a much higher award of exemplary damages than a defendant found to have maliciously caused severe physical injury to the plaintiff.

Were the assessment function for exemplary damages to be allocated to the judge in all tort cases, these discrepancies would be less likely to arise. This argument has not to date been borne out in practice, however, and there is no history, for example, of frequent or large exemplary damages awards in defamation cases; indeed exemplary damages of any kind in such cases are extremely rare.

A practical difficulty with allowing for the assessment of exemplary damages and not compensatory damages by the judge rather than the jury is that it may not be clear to the judge what are the precise findings of fact on which the jury based its finding of liability and award of compensatory damages.

The judge may be able to infer these matters from the determination of the jury and assess exemplary damages accordingly, but he or she does not have the same knowledge of these findings of fact as the jury. The system of assessment of compensatory damages is a framework outside the scope of this Report. It is something within which the Law Reform Commission must work, making its recommendation on the assessment of exemplary damages by a.

Where this is the case, the jury will have knowledge of the effect of the plea and would be able to take it into consideration in the assessment of any exemplary damages, but the judge would not be able to do so.

It seems that by retaining the jury's ability to award compensatory damages in certain cases but abolishing their right to make exemplary awards, the law might be open to the charge of inconsistency. Although the precise quantum of exemplary damages may be difficult for an inexperienced jury to assess, this is surely no less the case in regard to many awards of compensatory damages, where the plaintiff's distress and injury to feelings, or the loss of the plaintiff's reputation, must be given a precise monetary value.

In defamation cases in particular, where there have been criticisms of large awards, these awards have usually been expressed as compensatory rather than as exemplary. The Commission recommends that, given the current position of the law regarding the assessment of damages generally, and in particular, having regard to the jury's superior knowledge of the facts grounding the finding of liability, the law should not be altered to allocate the function of the award and assessment of exemplary damages to the judge rather than the jury.

The Commission does not favour the imposition of detailed guidelines or maximum or minimum limits on the quantum of exemplary damages awards assessed by the jury, but considers that the discretion of the jury in this matter should be retained, subject of course to the general principles of assessment of exemplary damages described in this chapter.

In our Report on the Civil Law of Defamation , we recommended that in defamation actions, the judge should determine both the categories of damages to be awarded and the quantum of such damages.

This recommendation would have covered all kinds of damages, including exemplary. However, we do not intend to qualify the recommendation on damages in defamation cases contained in the Defamation Report. Accordingly, our conclusion in the present Report, which concerns only exemplary damages in cases of any kind involving a jury, is without prejudice to the recommendation in our Defamation Report which concerns only defamation in cases involving a jury and applies to all categories of damages.

The Commission does not recommend any change in the current law by which, in cases involving a jury, exemplary damages are awarded and assessed by the jury rather than the judge. Since the purpose of exemplary damages is not to compensate the plaintiff but primarily to punish the defendant for his misconduct, and to deter, in the future, similar conduct by the defendant or others, such damages have a social and public policy justification, distinct from the need to compensate the plaintiff.

Exemplary damages are imposed on behalf of society. They are awarded, over and above what is necessary to compensate the plaintiff, as a separate indication of society's abhorrence of the defendant's wrongdoing. Therefore, it can be seen as contrary to principle that, when the plaintiff has received full compensation including, where appropriate, aggravated damages for the injury that has been done to him, any exemplary damages should also accrue to the plaintiff.

For, in such a case, the plaintiff would secure a bonus or windfall profit perhaps far above that which was necessary, even on the most generous assessment, in order to compensate him. Yet this is exactly what happens under our present law.

The issue which arises is, therefore, whether the law regarding exemplary damages. One may, of course, argue that once exemplary damages have been exacted, the social purpose of deterrence has been fulfilled and it is immaterial whether the plaintiff receives the benefit of them or whether they are applied for the benefit of some wider social cause.

Since the plaintiff has taken the trouble to bring the case to court, has run the risk of failure, and has thereby done a measure of public service in deterring an incidence of socially harmful conduct, it could well be argued that he or she is the appropriate recipient of the exemplary award.

Seen thus, the plaintiff's recovery of damages can be seen as a 'bounty' rather than a 'windfall' But, where an award of exemplary damages occurs solely because of the conduct of the wrongdoer, no moral right to receive the damages would seem to vest in anyone, be it in the plaintiff or some charity or the State. The question therefore becomes rather who is the most appropriate recipient. Before returning to answer this question in paras. Put briefly, such a law means that the plaintiff is allowed to take only a proportion of the exemplary damages award, the remainder being allocated to the State or some charity.

The split recovery measures imposed in US states vary in a number of aspects: A number of states apply split recovery to all punitive damages awards. Split recovery statutes in Utah and Colorado, for example, apply to all punitive awards, diverting a half and a third respectively of each punitive award to the State. In all other cases, the same percentage goes to the state exchequer.

In Oregon and Missouri, statutes provide that legal fees and the plaintiff's expenses should be deducted from a punitive damages award and the remainder of the. In Georgia, for example, the State claims a portion of punitive awards only in product liability cases 59 and the Kansas split recovery statute applies only to medical malpractice cases. These measures have been controversial and have been the subject of constitutional challenges, some of them successful.

If there were to be an amendment of the law to divert a portion of exemplary damages from the plaintiff to some social purpose, then a number of practical, subsidiary questions arise:. In so far as exemplary damages should not accrue to the plaintiff, to what fund or purpose should they be applied and how should their application be administered? What should be the position where the parties settle their litigation, i.

How should a split recovery regime for exemplary damages affect the question of lodgements of money in court by defendants? Would a split recovery system require the joinder of parties who might benefit from the apportionment of the exemplary award? Rather, each of these difficulties may be addressed without undermining the basic justification for a split recovery regime.

Below we address each of these practical issues in turn. A rule under which no part of an exemplary damages award accrued to the plaintiff, i. Thus, there is some public interest in the plaintiff retaining at least a significant portion of an exemplary award, in order to ensure that exemplary damages will be claimed in cases where a defendant has engaged in socially harmful conduct.

The question then arises, how should this proportion be determined? A number of options would be available. One would be to give the trial judge full discretion.

Thirdly, and most simply, the split recovery mechanism could be made applicable to a defined percentage of the exemplary damages awards. On the question of where the remainder of the award should be allocated, there are several options.

One option would be for this to go directly to the central exchequer. However, this approach would be open to particular objection in cases where the award was made against the State or a public authority of some kind. Alternatively, a specific public fund could be set up to receive and administer monies representing exemplary damages. Such a fund would have to be independent of the Exchequer and have defined rules and purposes governing its activities.

Otherwise, in cases where the State was the defendant, monies received by way of exemplary damages would simply swell the coffers of the Exchequer and the purpose of exemplary damages would be perceived to have been defeated. A more flexible option would be to leave the application of the damages to the discretion of the court, which might be exercised having regard to the nature and circumstances of the case.

A set of indicative charities or funds could be established by legislation or rule of court to guide the judge. For example, in a case of tort arising out of drunken driving which resulted in the death of an elderly person for whom the compensatory. There is the additional difficulty of how a split recovery rule would apply to settlements. The English Law Commission has raised this issue, and considered that, in order for a split recovery rule to be effective, it would have to apply to settlements of exemplary damages claims, as well as to actual awards.

It is indisputable that a split recovery regime would provide an incentive to the parties to settle their litigation on terms which made no specific provision for exemplary damages.

In practice, however, this is a situation which would simply have to be accepted. The defendant in a civil action other than a defamation action in which liability is not admitted may lodge money in court either with or subsequent to his defence. If the award for damages does not exceed the amount of the lodgement, the defendant will normally be entitled to recover from the plaintiff his costs of the action from the date of lodgement.

It may be argued that a split recovery regime would complicate the position regarding lodgements and their effect if, for the purpose of determining that effect, one were to separate the damages actually accruing to the plaintiff including the defined proportion of exemplary damages from the damages which do not go to the plaintiff.

In such a situation it might be argued that the plaintiff would be placed in an invidious position in deciding whether to accept a lodgement or not. Given however that the plaintiff has to undertake the expense subject to any recovery of costs from the defendant of pursuing the claim for exemplary damages, it is suggested that there is no compelling reason, for the purposes of calculating the effects of a lodgement, for separating those damages which do accrue to the plaintiff from the proportion of exemplary damages which do not.

Such a system would operate as follows: Rules of the Superior Courts , Order 22, Rule 6. The question which would arise here is whether, in such a case, the court should be entitled to award the plaintiff costs whether his own or those recoverable from the plaintiff by the defendant out of that part of the exemplary damages award which did not accrue to the plaintiff.

In response to this query, it can be said that a rule which automatically allowed the plaintiff to have resort to the diverted part of the general exemplary damages award for this purpose would seem to be contrary to principle. For if that were permitted, the plaintiff would arguably gain an unfair tactical advantage over the defendant in that he would lose nothing because of an unreasonable refusal to accept a lodgement.

The correct answer to this problem may be to leave it to the discretion of the court to decide whether, and to what extent, a plaintiff who failed to beat a lodgement would be entitled to have recourse to the proportion of exemplary damages, which otherwise would not have accrued to him or her. If matters were treated in the manner just described, it is suggested that all potential issues regarding costs would have been addressed. For, with the sole exception of the plaintiff who failed to beat the lodgement in a case where exemplary damages were awarded for which a solution is suggested just above , there would be no difference in regard to costs between cases involving exemplary damages and other cases.

Therefore, issues of costs and lodgements do not raise any insuperable difficulties to a split recovery mechanism. Another question which may arise is whether it may be necessary to join to the action for exemplary damages parties who stand to benefit through the allocation of a portion of the award for a public purpose.

If it is clear, for example, that a particular charity will be allocated funds as a result of any exemplary damages award in a tort action, it could be argued that the charity had a sufficient interest in the award of exemplary damages for it to be joined as a party to the action, so that it could make representations supporting an exemplary award.

It is not clear, however, whether a potential beneficiary would have an interest sufficiently proximate to be joined in the trial of the action itself; the beneficiary's interest might entitle it solely to be joined as a party at the assessment of damages stage or at the stage when exemplary damages, having been awarded, were being distributed.

Clearly, any legislation on split recovery would have to address these issues. Another point which this aspect suggests is that the trial might be distorted by the need to establish facts which would justify the award of exemplary rather than merely compensatory damages. To take a simple example, the lung cancer charity which stands to benefit from showing that the defendant tobacco company knew about the causal link between smoking and lung cancer would naturally want to prove that the defendant had actual knowledge.

But the plaintiff may have a different interest and may be content to prove only that the defendant ought to have known and so win only compensatory damages, rather than having to burden his case by proving actual knowledge. The addition of another party may also increase costs and complicate procedures, causing lengthier trials. The Commission has given careful consideration to possible split recovery legislation. As has been made clear above, we consider that such a system would be both defensible in principle and workable in practice.

However, the Commission considers that legislation in regard to the apportionment of exemplary damages would be premature and, under the prevailing circumstances, is not necessary. It is considered that the tiny number of cases in which, at present, exemplary damages arise, and the relatively modest quantum of exemplary damages awards to date, do not warrant the detailed regulation, administration and cost inherent in any split recovery regime. There is also the possibility that a detailed split recovery regime might place an undue emphasis on exemplary damages within the damages system as it presently functions.

Future developments in the law may give rise to a need to apportion exemplary awards as between the plaintiff and funds representing the public interest. However, on balance, the Commission does not, at this time, recommend the enactment of split recovery legislation. Clearly, a system that allows for exemplary damages and allocates all of these damages to the plaintiff remains open to the objection that it permits the plaintiff to recover a windfall.

However, it is considered that, if adequate restraints on quantum are observed as we have recommended in this Report, the windfall to the plaintiff will not be so significant as to be unacceptable. The considerable risks that may be run by a plaintiff in bringing an action for exemplary damages should also be borne in mind. The Commission does not recommend a change in the law regarding the apportionment of exemplary damages awards as between the plaintiff and a public fund, at least in present circumstances.

Claims for exemplary damages are peculiarly liable to arise in situations where there are large numbers of plaintiffs. Product liability cases arising from serious injury to large numbers of consumers, or mass disasters or serious accidents, may all result in actions for exemplary damages.

When several plaintiffs claim exemplary damages against the same defendant as a result of the same wrongful action, particular problems arise. From the point of view of the defendant, there is the risk that several exemplary damages awards will be made against him or her.

If these awards are made in separate cases, they may be calculated without any reference to the other exemplary awards against the defendant.

The defendant would thus, in effect, be punished several times in respect of the same wrong, which would plainly be unjust. Furthermore, from the point of view of plaintiffs claiming damages, there is the risk that two or three exemplary awards may so deplete the resources of a defendant that subsequent plaintiffs will be unable to recover even in compensatory damages, let alone receive any share of the exemplary awards.

The first plaintiff to win or settle a claim may be disproportionately favoured at the expense of other plaintiffs and potential plaintiffs. Punitive damages claims involving large numbers of plaintiffs have been relatively common in the United States, and it is in that jurisdiction that the law has made the most sophisticated efforts to address such situations. The problems associated with mass tort cases were recognised by Judge Friendly in the early case of Roginsky v Richardson-Merrell Inc , 66 where he observed that:.

We have the gravest difficulty in perceiving how claims for punitive damages in such a multiplicity of actions throughout the nation can be so administered as to avoid overkill. However, no single mechanism has been entirely satisfactory in addressing these problems. The most common means of dealing with a large number of claims where it appears that there are similar allegations against the same defendants is to consolidate the claims. For example, cases against asbestos manufacturers, which have provided some of the biggest mass trials in the US, have often been consolidated or co-ordinated at the preliminary stage of the proceedings.

A single judge may be appointed to co-ordinate the pre-trial proceedings in all the cases. These measures are taken in the interests of consistency, efficiency and judicial economy: Where there are a very large number of cases, consolidation can avoid serious congestion of the courts, and allows for claims to be settled quickly. However, consolidating a large number of cases does mean that the peculiarities of individual claims may have to be left to one side to be decided in future proceedings; the court will concentrate on what is common to the cases before it.

One criticism that has been made of the consolidation of claims into mass trials, however, is that individual plaintiffs lose control of their cases.

Although this may be seen as unsatisfactory, it should be noted that, if there is an award against the defendant in the first consolidated case, it is more likely that the defendant will be induced to settle in respect of any outstanding issues. Consolidation of cases has the further advantage. In many consolidated actions in the US, the courts will attempt to manage the complexity of the case by trying issues separately, leaving some issues to non-consolidated proceedings a technique known as 'bifurcation'.

The trial judge has a discretion as to whether to order the separate trial of any claim or issue and to decide the manner in which the trial will be split. The second tool used by the US courts to deal with multiple plaintiff cases is the class action, as provided for in Rule 23 of the US Federal Rules of Procedure. Class actions are generally used where there are very large numbers of plaintiffs or potential plaintiffs, more than could easily be accommodated by a joinder of actions.

This means that the similar claims before the court are subsumed into a single case, and a small number of plaintiffs are taken as representative of all of the plaintiffs for the purposes of the trial and are authorised to sue on their behalf. In order for a court to certify that a class exists, it must be established that the plaintiffs who will form the class fulfil four criteria: There is a further requirement that notice be given to potential plaintiffs who may wish to be included in the class action.

It is argued that a class action is inappropriate in many types of mass tort cases, for example, where an accident has caused widely varying personal injuries to a large number of plaintiffs. The defendant's liability and culpability may vary widely as regards different plaintiffs. This is accepted to be the case where there are more than 40 plaintiffs: Another solution suggested in the United States 74 to the problem of mass tort exemplary awards is that a single award of exemplary damages should be made only after all claims for compensatory damages have been settled.

This would ensure that all plaintiffs will at least receive the compensatory damages to which they are entitled, and would prevent the defendant being bankrupted by an early exemplary award before all compensatory claims had been settled.

Practical problems arise here, however: In a large products liability case, for example, new potential plaintiffs may come to light over a long period. In the US case of Roginsky v Richardson Merrill , 75 it was further suggested by the court that a single award of punitive damages could be made and then held by the court for later distribution amongst all successful plaintiffs.

In recent years, the English courts have developed mechanisms for the regulation of group actions, where a large number of plaintiffs claim in damages against a single defendant. In that case, it was held by the English Court of Appeal that the large numbers of plaintiffs involved in the case precluded an exemplary award. Stuart-Smith LJ in his judgment referred to the great difficulties involved in multiple plaintiff exemplary damages cases:. Unless all their claims are quantified by the court at the same time, how is the court to fix and apportion the punitive element of the damages?

Or should it be divided according to the gravity of the personal injury suffered? Some plaintiffs may have been affected by the alleged oppressive, arbitrary, arrogant and high handed behaviour, others not.

If the assessment is made separately at different times for different plaintiffs, how is the court to know that the overall punishment is appropriate? Primarily, an "emotional distress" tort action is personal in nature, i. It has no application in the instant case since no particular individual was identified in the disputed article of Bulgar.

Also, the purported damage caused by the article, assuming there was any, falls under the principle of relational harm — which includes harm to social relationships in the community in the form of defamation; as distinguished from the principle of reactive harm — which includes injuries to individual emotional tranquility in the form of an infliction of emotional distress.

In their complaint, respondents clearly asserted an alleged harm to the standing of Muslims in the community, especially to their activities in propagating their faith in Metro Manila and in other non-Muslim communities in the country. Moreover, under the Second Restatement of the Law , to recover for the intentional infliction of emotional distress the plaintiff must show that: The defendant's actions must have been so terrifying as naturally to humiliate, embarrass or frighten the plaintiff.

Any party seeking recovery for mental anguish must prove more than mere worry, anxiety, vexation, embarrassment, or anger. Liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities. In determining whether the tort of outrage had been committed, a plaintiff is necessarily expected and required to be hardened to a certain amount of criticism, rough language, and to occasional acts and words that are definitely inconsiderate and unkind; the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.

Falwell 33 illustrates the test case of a civil action for damages on intentional infliction of emotional distress. A parody appeared in Hustler magazine featuring the American fundamentalist preacher and evangelist Reverend Jerry Falwell depicting him in an inebriated state having an incestuous, sexual liaison with his mother in an outhouse. Falwell sued Hustler and its publisher Larry Flynt for damages.

The United States District Court for the Western District of Virginia ruled that the parody was not libelous, because no reasonable reader would have understood it as a factual assertion that Falwell engaged in the act described. The United States Supreme Court in a unanimous decision overturned the jury verdict of the Virginia Court and held that Reverend Falwell may not recover for intentional infliction of emotional distress.

It was argued that the material might be deemed outrageous and may have been intended to cause severe emotional distress, but these circumstances were not sufficient to overcome the free speech rights guaranteed under the First Amendment of the United States Constitution.

Simply stated, an intentional tort causing emotional distress must necessarily give way to the fundamental right to free speech. It must be observed that although Falwell was regarded by the U. High Court as a "public figure," he was an individual particularly singled out or identified in the parody appearing on Hustler magazine. Also, the emotional distress allegedly suffered by Reverend Falwell involved a reactive interest — an emotional response to the parody which supposedly injured his psychological well-being.

Verily, our position is clear that the conduct of petitioners was not extreme or outrageous. Neither was the emotional distress allegedly suffered by respondents so severe that no reasonable person could be expected to endure it.

There is no evidence on record that points to that result. Professor William Prosser, views tort actions on intentional infliction of emotional distress in this manner 34 —. There is virtually unanimous agreement that such ordinary defendants are not liable for mere insult, indignity, annoyance, or even threats, where the case is lacking in other circumstances of aggravation.

The reasons are not far to seek. Our manners, and with them our law, have not yet progressed to the point where we are able to afford a remedy in the form of tort damages for all intended mental disturbance.

Liability of course cannot be extended to every trivial indignity x x x x The plaintiff must necessarily be expected and required to be hardened to a certain amount of rough language, and to acts that are definitely inconsiderate and unkind x x x The plaintiff cannot recover merely because of hurt feelings.

Professor Calvert Magruder reinforces Prosser with this succinct observation, viz: There is no occasion for the law to intervene in every case where someone's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. Thus, it is evident that even American courts are reluctant to adopt a rule of recovery for emotional harm that would "open up a wide vista of litigation in the field of bad manners," an area in which a "toughening of the mental hide" was thought to be a more appropriate remedy.

In this connection, the doctrines in Chaplinsky and Beauharnais had largely been superseded by subsequent First Amendment doctrines. Back in simpler times in the history of free expression the Supreme Court appeared to espouse a theory, known as the Two-Class Theory , that treated certain types of expression as taboo forms of speech, beneath the dignity of the First Amendment.

The most celebrated statement of this view was expressed in Chaplinsky:. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Today, however, the theory is no longer viable; modern First Amendment principles have passed it by. American courts no longer accept the view that speech may be proscribed merely because it is "lewd," "profane," "insulting" or otherwise vulgar or offensive.

California 39 is illustrative: Paul Robert Cohen wore a jacket bearing the words "Fuck the Draft" in a Los Angeles courthouse in April , which caused his eventual arrest. Cohen was convicted for violating a California statute prohibiting any person from "disturb[ing] the peace x x x by offensive conduct. Supreme Court conceded that Cohen's expletive contained in his jacket was "vulgar," but it concluded that his speech was nonetheless protected by the right to free speech.

It was neither considered an "incitement" to illegal action nor "obscenity. In other words, no one was present in the Los Angeles courthouse who would have regarded Cohen's speech as a direct personal insult, nor was there any danger of reactive violence against him. No specific individual was targeted in the allegedly defamatory words printed on Cohen's jacket. The conviction could only be justified by California's desire to exercise the broad power in preserving the cleanliness of discourse in the public sphere, which the U.

Supreme Court refused to grant to the State, holding that no objective distinctions can be made between vulgar and nonvulgar speech, and that the emotive elements of speech are just as essential in the exercise of this right as the purely cognitive. Justice Harlan so eloquently wrote: Supreme Court finally laid the Constitutional foundation for judicial protection of provocative and potentially offensive speech.

Similarly, libelous speech is no longer outside the First Amendment protection. With respect to the "fighting words" doctrine, while it remains alive it was modified by the current rigorous clear and present danger test. Supreme Court in applying the test held that there was no showing that Cohen's jacket bearing the words "Fuck the Draft" had threatened to provoke imminent violence; and that protecting the sensibilities of onlookers was not sufficiently compelling interest to restrain Cohen's speech.

Beauharnais , which closely followed the Chaplinsky doctrine, suffered the same fate as Chaplinsky. Indeed, when Beauharnais was decided in , the Two-Class Theory was still flourishing.

While concededly the U. High Tribunal did not formally abandon Beauharnais , the seminal shifts in U. Among the cases that dealt a crushing impact on Beauharnais and rendered it almost certainly a dead letter case law are Brandenburg v. Ohio , 42 and, again, Cohen v. In Brandenburg , appellant who was a leader of the Ku Klux Klan was convicted under the Ohio Criminal Syndicalism Statute for advocating the necessity, duty and propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reforms; and for voluntarily assembling with a group formed to teach or advocate the doctrines of criminal syndicalism.

Appellant challenged the statute and was sustained by the U. Supreme Court, holding that the advocacy of illegal action becomes punishable only if such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. The importance of the Brandenburg ruling cannot be overemphasized. Smolla affirmed that " Brandenburg must be understood as overruling Beauharnais and eliminating the possibility of treating group libel under the same First Amendment standards as individual libel.

In any case, respondents' lack of cause of action cannot be cured by the filing of a class suit. As correctly pointed out by Mr. Vitug during the deliberations, "an element of a class suit is the adequacy of representation. In determining the question of fair and adequate representation of members of a class, the court must consider a whether the interest of the named party is coextensive with the interest of the other members of the class; b the proportion of those made parties as it so bears to the total membership of the class; and, c any other factor bearing on the ability of the named party to speak for the rest of the class.

The rules require that courts must make sure that the persons intervening should be sufficiently numerous to fully protect the interests of all concerned. Private respondents obviously lack the sufficiency of numbers to represent such a global group; neither have they been able to demonstrate the identity of their interests with those they seek to represent.

Unless it can be shown that there can be a safe guaranty that those absent will be adequately represented by those present, a class suit, given its magnitude in this instance, would be unavailing. Likewise on the matter of damages, we agree that "moral damages may be recovered only if the plaintiff is able to satisfactorily prove the existence of the factual basis for the damages and its causal connection with the acts complained of, 49 and so it must be, as moral damages although incapable of pecuniary estimation are designed not to impose a penalty but to compensate for injury sustained and actual damages suffered.

In a pluralistic society like the Philippines where misinformation about another individual's religion is as commonplace as self-appointed critics of government, it would be more appropriate to respect the fair criticism of religious principles, including those which may be outrageously appalling, immensely erroneous, or those couched as fairly informative comments.

The greater danger in our society is the possibility that it may encourage the frequency of suits among religious fundamentalists, whether Christian, Muslim, Hindu, Buddhist, Jewish, or others.

This would unnecessarily make the civil courts a battleground to assert their spiritual ideas, and advance their respective religious agenda. It need not be stressed that this Court has no power to determine which is proper religious conduct or belief; neither does it have the authority to rule on the merits of one religion over another, nor declare which belief to uphold or cast asunder, for the validity of religious beliefs or values are outside the sphere of the judiciary.

Such matters are better left for the religious authorities to address what is rightfully within their doctrine and realm of influence. Courts must be viewpoint-neutral when it comes to religious matters if only to affirm the neutrality principle of free speech rights under modern jurisprudence where "[a]ll ideas are treated equal in the eyes of the First Amendment — even those ideas that are universally condemned and run counter to constitutional principles.

However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. No pronouncement as to costs. The innate right of a person to an unimpaired reputation and good name is no less a constitutional imperative than that which protects his life, liberty or property.

Thus, the law imposes upon him who attacks another's reputation, by slanderous words or libelous publication, a liability to make compensation for the injury done and the damages sustained. Private respondents, for themselves and in behalf of all Muslims, filed the complaint before the trial court against petitioners, alleging that the published article was defamatory and an insult to respondents. The trial court dismissed the complaint.

On appeal, the Court of Appeals reversed the decision of the lower court and ordered petitioners to pay damages to private respondents. Aggrieved, petitioners are now before the Court to assail the findings of the Court of Appeals on the existence of the elements of libel, the right of respondents to institute the class suit, and the liability of petitioners for moral damages, exemplary damages, attorney's fees and costs of suit.

The present controversy stems from a civil action for damages and not from a criminal complaint. The Civil Code recognizes the possibility of such a civil action either pursuant to Article 26, paragraph 4 , to the effect that although it may not constitute a criminal offense, "vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition," can give rise to a cause of action for damages, or consonantly with Article 33 which provides that in case of defamation, a civil complaint for damages, entirely separate and distinct from the criminal case, may be brought by the injured party.

Both civil actions are based on tort liability under common law and require the plaintiff to establish that he has suffered personal damage or injury as a direct consequence of the defendant's wrongful conduct.

In fine, it must be shown that the act complained of is vexatious or defamatory of, and as it pertains to, the claimant, thereby humiliating or besmirching the latter's dignity and honor. Defined in simple terms, vexation is an act of annoyance or irritation that causes distress or agitation. It is said that "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.

A kindred concept, albeit of greater degree of perversity, defamation, broadly defined, is an attack on the reputation of another, the unprivileged publication of false statements which naturally and proximately result in injury to another. While arguably, the article subject of the complaint could be characterized as vexatious or defamatory and as imparting an erroneous interpretation of a Muslim practice that tends to ridicule the Islamic faith, it is, however, impersonal on its face, its language not being directed at any particular person but to a large segment of society.

In order that defamatory words can be actionable in court, it is essential that they are personal to the party maligned, an ascertained or ascertainable individual. Absent circumstances specifically pointing or alluding to a particular member of a class, no member of such class has a right of action 16 without at all impairing the equally demanding right of free speech and expression, as well as of the press, under the bill of rights.

If an article, for instance, states that "judges in the Philippines are corrupt," such a general condemnation cannot reasonably be interpreted to be pointing to each judge or to a certain judge in the Philippines.

Thus, no particular magistrate can claim to have been disgraced or to have sustained an impaired reputation because of that article. If, on the other hand, the article proclaims that " judges in Metro Manila are corrupt ," such statement of derogatory conduct now refers to a relatively narrow group that might yet warrant its looking into in an appropriate suit.

And if the article accuses the " Justices of the Supreme Court " of corruption, then there is a specific derogatory statement about a definite number of no more than fifteen persons. Jurisprudence would appear to suggest that in cases permitting recovery, the group generally has 25 or fewer members. Thus, no recovery was allowed where the remarks complained of had been made about correspondence schools, one school suing; 22 or where there was imputation of criminality to a union, one member suing; 23 or where an attack was made on Catholic clergymen, one clergyman suing.

Intermediate Appellate Court , 25 this Court dismissed a class suit for scurrilous remarks filed by four incorporated associations of sugar planters in Negros Occidental in behalf of all sugar planters in that province, against Newsweek, Inc.

And so also it was in an older case, 26 where the Court ratiocinated that an article directed at a class or group of persons in broad language would not be actionable by individuals composing the class or group unless the statements were sweeping but, even then, it would be highly probable, said the Court, that no action could lie "where the body is composed of so large a number of persons that common sense would tell those to whom the publication was made that there was room for persons connected with the body to pursue an upright and law abiding course and that it would be unreasonable and absurd to condemn all because of the actions of a part.

In the present case, the subject article relates to the entire Muslim population and not just to the Islamic Da'wah Council of the Philippines or to any of the individual respondents.

There is no direct reference or allusion to the federation or any of its members, or to any of the individual complainants. Respondents scarcely can claim having been singled out for social censure pointedly resulting in damages. Islamic Da'wah Council of the Philippines, Inc. I dissent not because the newspaper article in question is libelous, but because it constitutes an intentional tortious act causing mental distress to those whom private respondent Islamic Da'wah Council of the Philippines; Inc.

Private respondents filed this class suit under Articles 19, 20, 21 and 26 of the Civil Code. Accordingly, private respondents stated their case as follows:. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:. It is on account of the foregoing provisions of our Civil Code that plaintiffs brought to the court 'a quo' a civil case for damages on account of a published article at the editorial section of the defendant newspaper x x x.

Petitioners acknowledge that private respondents' principal cause of action is based on tortious conduct when petitioners state in their Petition that "[p]laintiffs rely heavily on Article 26 of the Civil Code particularly par.

Clearly, the instant case is not about libel which requires the identification of the plaintiff in the libelous statement. If this were a libel case under Article 30 3 of the Civil Code, which authorizes a separate civil action to recover civil liability arising from a criminal offense, I would agree that the instant case could not prosper for want of identification of the private respondents as the libeled persons.

But private respondents do not anchor their action on Article 30 of the Civil Code. Private respondents insist that this case is principally about tortious conduct under Article 26 of the Civil Code. Unlike the action in Article 30 of the Civil Code which must arise from a "criminal offense," the action under Article 26 "may not constitute a criminal offense. Paragraph 4 of Article 26, which refers to acts humiliating another for his religious beliefs, is embraced in the tort known as intentional infliction of mental or emotional distress.

This case must be decided on the issue of whether there was such tortious conduct, and not whether there was defamation that satisfied the elements of the crime of libel. Hindi nila ito kailangang kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila kakain. Private respondents claim that the newspaper article, which asserts that Muslims worship the pig as their god , was published with intent to humiliate and disparage Muslims and cast insult on Islam as a religion in this country.

The publication is not only grossly false, but is also the complete opposite of what Muslims hold dear in their religion. The trial court found that the newspaper article clearly imputes a disgraceful act on Muslims. However, the trial court ruled that the article was not libelous because the article did not identify or name the plaintiffs. Declared the trial court:. Likewise, there is no doubt that the subject article was published, the newspaper 'Bulgar' containing the same having been circulated in Metro Manila and in other parts of the country.

The defendants did not dispute these facts x x x However, x x x identity of the person is not present. It must be noted that the persons allegedly defamed, the herein plaintiffs were not identified with specificity. The subject article was directed at the Muslims without mentioning or identifying the herein plaintiffs. In their appeal to the Court of Appeals, private respondents assailed the trial court for " deciding the case as a libel case rather than a case for damages for violation of Articles 19, 20, 21 and 26 of the Civil Code.

Thus, the Court of Appeals held:. This libelous imputation undeniably applied to the plaintiffs-appellants who are Muslims sharing the same religious beliefs. Thus, both the trial and appellate courts found the newspaper article in question insulting and humiliating to Muslims, causing wounded feelings and mental anguish to believers of Islam. This is a finding of fact that the Court is duty bound to respect.

Like the trial and appellate courts, we find the newspaper article in question dripping with extreme profanity, grossly offensive and manifestly outrageous, and devoid of any social value.

The article evidently incites religious hatred, discrimination and hostility against Muslims. Private respondents have certainly suffered humiliation and mental distress because of their religious beliefs.

The only question is whether the wrongful act committed by petitioners, which does not constitute the crime of libel, is a case of damnum absque injuria or an actionable tort under paragraph 4, Article 26 of the Civil Code. The privacy of one's home is an inviolable right. Yet the laws in force do not squarely and effectively protect this right. The acts referred to in No. Alienation of the affection of another's wife or husband, unless it constituted adultery or concubinage, is not condemned by the law, much as it may shock society.

There are numerous acts, short of criminal unfaithfulness , whereby the husband or the wife breaks the marital vows, thus causing untold moral suffering to the other spouse. Why should not these acts be the subject matter of a civil action for damages? In American law, they are. Again, there is meddling of so-called friends who poison the mind of one or more members of the family against the other members.

In this manner many a happy family is broken up or estranged. Why should not the law try to stop this by creating a civil action for damages? Of the same nature is that class of acts specified in No. No less serious are the acts mentioned in No. The penal laws against defamation and unjust vexation are glaringly inadequate. Religious freedom does not authorize anyone to heap obloquy and disrepute upon another by reason of the latter's religion.

Not a few of the rich people treat the poor with contempt because of the latter's lowly station in life. To a certain extent this is inevitable, from the nature of the social make-up, but there ought to be a limit somewhere, even when the penal laws against defamation and unjust vexation are not transgressed.

In a democracy, such a limit must be established. The courts will recognize it in each case. Social equality is not sought by the legal provision under consideration, but due regard for decency and propriety. Place of birth, of physical defect and other personal conditions are too often the pretext of humiliation cast upon other persons. Such tampering with human personality, even though the penal laws are not violated, should be the cause of civil action. The article under study denounces "similar acts" which could readily be named, for they occur with unpleasant frequency.

The intent of the Code Commission is quite clear: Article 26 specifically applies to intentional acts which fall short of being criminal offenses. Article 24 itself expressly refers to tortious conduct which "may not constitute criminal offenses.

Under Article 26, the person responsible for such act becomes liable for "damages, prevention and other relief. Consequently, the elements that qualify the same acts as criminal offenses do not apply in determining responsibility for tortious conduct under Article Where the tortious act humiliating another because of his religious beliefs is published in a newspaper, the elements of the crime of libel need not be satisfied before the aggrieved person can recover damages under Article In intentional tort under Article 26, the offensive statements may not even be published or broadcasted but merely hurled privately at the offended party.

In intentional infliction of mental distress, the gravamen of the tort is not the injury to plaintiff's reputation, but the harm to plaintiff's mental and emotional state. In libel, the gist of the action is the injury to plaintiff's reputation.

Reputation is the community's opinion of what a person is. What is material is the disturbance on the-mental or emotional state of the plaintiff who is entitled to peace of mind. The offensive act or statement need not identify specifically the plaintiff as the object of the humiliation. What is important is that the plaintiff actually suffers mental or emotional distress because he saw the act or read the statement and it alludes to an identifiable group to which he clearly belongs.

If one of the petitioners, without specifically naming private respondents, hurled the same statement in private separately to each of the private respondents, the act would be actionable under Article 26 because it would cause mental distress to each private respondent.

The fact that the statement was made publicly in fact makes matters worse because the mental or emotional distress caused on private respondents would even be aggravated by the publicity. This merely illustrates that the requirements of libel have no application in intentional torts under Article 26 where the impression of the public is immaterial while the impact on the mind or emotion of the offended party is all-important.

That is why in American jurisprudence the tort of intentional infliction of mental or emotional distress is completely separate and distinct 8 from the twin torts of libel and slander. The majority opinion, however, cites the U. Supreme Court decision in Hustler Magazine v. Falwell 10 as authority that a person "may not recover for intentional infliction of emotional distress arising from a publication unless the publication contained a false statement of fact that was made with actual malice, that is, with a knowledge of falsity or reckless disregard for the truth.

The doctrine in Hustler applies only to public figures, and the U. Supreme Court found that "respondent Falwell is a 'public figure ' for purposes of First Amendment law. Supreme Court held in Hustler that —. Evidently, Hustler allows recovery for intentional infliction of emotional distress if the aggrieved party is a private person and not a public figure even if there is no showing that the false statement was made with actual malice. In the instant case, private respondents are not public figures or public officials but ordinary private individuals represented by private respondent Islamic Da'wah Council of the Philippines, Inc.

The Constitution provides that "[t]he State values the dignity of every human person and guarantees full respect for human rights. This is clear from the following exchange in the deliberations of the Constitutional Commission:. But it does not mean that we will refer to each and every specific article therein, but only to those that pertain to the civil and politically related, as we understand it in this Commission on Human Rights.

Madam President, I am not clear as to the distinction between social and civil rights. There are two international covenants: The second covenant contains all the different rights — the rights of labor to organize, the right to education, housing, shelter, etcetera.

So we are just limiting at the moment the sense of the committee to those the Gentleman has specified. Article 20 2 of the International Covenant on Civil and Political Rights provides that " [a]ny advocacy of x x xreligious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

However, the reports have shown that in some States such actions are neither prohibited by law nor are appropriate efforts intended or made to prohibit them. Further, many reports failed to give sufficient information concerning the relevant national legislation and practice. The Covenant, being an international treaty to which the Philippines is a signatory, is part of the country's municipal law.

Unquestionably, the framers of the Constitution intentionally referred to the civil and political rights embraced in the Covenant in describing the term "human rights. Paragraph 4, Article 26 of the Civil Code makes civilly liable any person who humiliates another because of his religious beliefs. This is just a soft prohibition of advocacy of religious hatred that incites discrimination, hostility or violence, the act the Covenant seeks to curb and which the Philippine Government has undertaken to declare unlawful.

Other countries that signed the Covenant have criminalized the acts prohibited under the Covenant. Since our ratification of the Covenant in , the Philippines has not enacted any special legislation to enforce the provisions of the Covenant, on the ground that existing laws are adequate to meet the requirements of the Covenant.

There is no other law, except paragraph 4, Article 26 of the Civil Code, that can provide a sanction against intentional conduct, falling short of a criminal act, advocating religious hatred that incites hostility between Muslims and Christians in this country.