Exemplary Damages as Public Interest Damages: Implications for Rights of Action, Settlement and the Distribution of Awards

Exemplary damages are commonly understood as public interest awards. This article explores the logical implications of understanding them in this way for a tort claimant's rights of action and settlement, and for the proper distribution of awards. One implication, it suggests, is that settlements, being compromises of public ends, should require court approval and the state should in principle have rights of representation in respect of the accommodation. Another is that courts should have statutory duties and powers to divert a fixed proportion of any award above a minimum threshold to approved public purposes, including, potentially, charitable ends nominated by the claimant. In making these suggestions, the article draws heavily on the way in which public interest claims are structured and controlled in public law; and on American split‐damages systems. As well as eliminating unjustified windfalls, the redistribution of exemplary awards to more imaginative public uses is likely, the article concludes, to prove attractive to governments in times when public funding is short and could fruitfully be accommodated, at least in a basic form, without significant cost.