Law of Torts
Nominal and Contemptuous Damages: A Right Vindicated and an Action Deprecated
Both are small sums and they say opposite things. Nominal damages are awarded where a legal right has been violated and no loss followed: the sum is small because there is nothing to compensate, and the award is a vindication of the right. Contemptuous damages are awarded where the right existed and was violated, but the court considers that the action should never have been brought: the sum is derisory because the court means to say so, and the plaintiff commonly loses his costs. A plaintiff who receives one shilling for a trespass has won; a plaintiff who receives one shilling for a libel has been told what the court thinks of him.
1. The Comparison
Nominal damages | Contemptuous damages | |
Why the sum is small | There was no loss to compensate | The court disapproves of the action having been brought |
What the award says | The right was violated and is vindicated | The claim was technically good and morally worthless |
Was there a loss | No | There may well have been, but the court is unimpressed |
Effect on the plaintiff's reputation | None. He has succeeded | Damaging. It is a public rebuke |
Costs | Ordinarily follow the event, so he recovers them | Ordinarily refused, and he may be made to pay the defendant's |
The typical sum | A token, fixed by convention | The smallest coin of the realm |
When it arises | Torts actionable per se where no damage occurred | Defamation above all, and other actions brought out of spite or for a collateral object |
Is it a victory | Yes, in substance as well as in form | A victory in form only |
2. Nominal Damages
- They rest on the maxim injuria sine damno. Where a legal right has been infringed, the law gives a remedy although the plaintiff is no poorer for it, because a right whose breach costs nothing would otherwise cease in practice to be a right: TORT 112.
- They belong to the torts actionable per se: trespass to land, trespass to goods, trespass to the person, false imprisonment and libel. In each the wrongful act completes the tort and proof of loss goes only to the amount.
- Ashby v. White, (1703) 2 Ld Raym 938 is the classical case. An elector was wrongfully refused his vote; the candidate he supported was elected anyway; the action lay, because where the law confers a right it must afford a remedy for its violation.
- They serve four practical functions. They establish the plaintiff's title or right, which is often the whole object of the suit. They deny the defendant a foothold from which a prescriptive right might later be argued, since an unchallenged user is the foundation of prescription. They support an injunction restraining repetition. And they carry costs, which are frequently worth far more than the damages.
- Kirk v. Gregory, (1876) 1 Ex D 55 is a plain illustration: a relative who moved a dead man's rings for safe keeping was liable in trespass, and one shilling was awarded: TORT 148.
3. Contemptuous Damages
- The plaintiff has proved his case and the court declines to reward him. The elements of the tort are made out, so the claim cannot be dismissed, and the award is the only means the court has of expressing its view.
- The sum is derisory by design, being the smallest coin available, and the message is carried by the figure rather than by anything said.
- The real sanction is in costs. A plaintiff awarded contemptuous damages ordinarily loses his costs, and may be ordered to pay the defendant's, which in a long trial will far exceed anything he has recovered.
- Defamation is the natural home of the award, because the tort is actionable per se and reputation is presumed, so a plaintiff whose reputation is in fact worthless may still make out his claim. The award tells him that the law protects a reputation he does not possess.
- The occasions are of three kinds: where the plaintiff's own conduct provoked the wrong; where his character is such that the imputation did him no real harm; and where the action was brought for a collateral purpose rather than for vindication.
- It is a discretionary expression of disapproval and not a measure of loss, which is why no principle governs the figure.
4. Where Each Fits in the Scheme of Awards
The award | What it responds to |
Nominal | A right violated, no loss |
Contemptuous | A right violated, a claim the court deprecates |
Compensatory | A right violated, a loss to be repaired |
Aggravated | A right violated, a loss made worse by the manner of the wrong |
Exemplary | A right violated, and conduct the court means to punish |
- The five form a single scale of judicial reaction, running from disapproval of the plaintiff at one end to disapproval of the defendant at the other, with compensation in the middle.
- Only compensatory and aggravated damages measure anything; the other three are statements.
- The subject is examined fully in TORT 092 to TORT 094, and the taxonomy is set out in TORT 111.
5. The Practical Significance of Costs
- In both cases the damages are trivial and the costs are not. A trespass action yielding one rupee may carry costs of a great deal more, and it is the costs order that makes the litigation worth bringing or ruinous to have brought.
- Nominal damages ordinarily carry costs to the plaintiff, on the footing that he has succeeded.
- Contemptuous damages ordinarily do not, and the court will frequently deprive the plaintiff of costs or order him to pay the defendant's.
- A defendant who expects a contemptuous award should consider a payment into court or a formal offer, since a plaintiff who recovers less than the offer will bear the costs from the date of it in any event.
- A plaintiff seeking only vindication should say so, and should consider whether a declaration, an apology or an injunction meets his object better than a money claim that invites the court to value his reputation.
⚠ Why a court keeps a remedy whose purpose is to insult the person using it Contemptuous damages are an odd institution. The plaintiff has proved every element of a recognised tort, the defendant has been found to have committed it, and the court responds by awarding the smallest coin it can find and taking away the costs. The reason the power exists is that the torts actionable per se were deliberately built to dispense with proof of loss, and that design, which is right in principle, has a predictable consequence: it lets a plaintiff with nothing to lose bring an action about it. A man of thoroughly bad character who is falsely accused of one more disgraceful thing has a good cause of action in libel, because the law will not enquire whether his reputation was worth anything before the publication. A litigant who sues over a trivial trespass to punish a neighbour for something unrelated has a good cause of action too. The court cannot dismiss either claim without abandoning the rule that these torts need no proof of damage, and it should not award substantial damages without endorsing a suit brought for a purpose the law does not serve. Contemptuous damages resolve the difficulty by separating the two questions: the right is upheld, because it exists and was infringed, and the plaintiff is told plainly that upholding it is all he is going to get. The costs order is where the message actually lands, and a practitioner advising a claimant with a technically sound but unattractive case should treat the possibility as the main risk of the litigation rather than as a curiosity. |
6. The Position Stated Shortly
1. Nominal damages are awarded where a legal right was violated and no loss followed; contemptuous damages where the court considers the action should never have been brought.
2. Nominal damages rest on injuria sine damno and belong to the torts actionable per se.
3. Ashby v. White is the classical authority, an elector wrongly refused his vote recovering although the result was unaffected.
4. They establish the plaintiff's right, deny the defendant a foothold for prescription, support an injunction, and carry costs.
5. Contemptuous damages are derisory by design, the message being carried by the figure rather than by anything said.
6. The plaintiff has proved his case, so the claim cannot be dismissed, and the award is the court's only means of expressing disapproval.
7. Defamation is the natural home of the award, the tort being actionable per se and reputation presumed.
8. The real sanction is in costs: nominal damages ordinarily carry them to the plaintiff, contemptuous damages ordinarily do not.
9. The five kinds of award form one scale, from disapproval of the plaintiff to disapproval of the defendant, with compensation in the middle.
10. A plaintiff seeking only vindication should consider a declaration, an apology or an injunction rather than a money claim that invites the court to value his reputation.