Cassell and Co Ltd v Broome and Another: HL 23 Feb 1972

Exemplary Damages Award in Defamation

The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. The Court of Appeal had considered Rookes -v- Barnard to have been decided per incuriam.
Held: It was not for the Court of Appeal to direct a judge to ignore a decision of the House of Lords. The Young case gave guidance to be followed where conflicting decisions existed. ‘The bad conduct of the Plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large”. Rookes v Barnard was correct. The defendants having calculated that they would receive more from extra sales than they might have to pay in damages, it was open to the court to award exemplary damages. If, but only if, the sum awarded by way of compensation was inadequate to punish the defendant, the jury might mark their disapproval of his conduct by awarding a larger sum. The award of exemplary damages always remains discretionary. Compensatory and exemplary damages are ‘as incompatible as oil and vinegar’
Lord Hailsham considered the role of guidance on levels of damages from the court of appeal: ‘The first, and paramount consideration in my mind is that the jury is, where either party desires it, the only legal and constitutional tribunal for deciding libel damages including the award of damages. I do not think the judiciary at any level should substitute itself for a jury, unless the award is so manifestly too large . . that no sensible jury properly directed could have reached the conclusion . . The point is that the law makes the jury and not the judiciary the constitutional tribunal, and if Parliament had wished the roles to be reversed in any way, Parliament would have said so at the time of the Administration of Justice (Miscellaneous Provisions) Act 1933 . . It may very well be that, on the whole, judges, and the legal profession in general, would be less generous than juries in the award of damages for defamation. But I know of no principle of reason which would entitle judges, whether of appeal or at first instance, to consider that their own sense of the proprieties is more reasonable than that of a jury, or which would entitle them to arrogate to themselves a constitutional status in this matter which Parliament has deliberately withheld from them, for aught we know, on the very ground that juries can be expected to be more generous on such matter than judges.’
Lord Morris of Borth-y-Gest said: ‘I do not think that the word ‘calculated’ was used to denote some precise balancing process. The situation contemplated is where someone faces up to the possibility of having to pay damages for doing something which may be held to have been wrong but where nevertheless he deliberately carries out his plan because he thinks that it will work out satisfactorily for him.’
Otherwise Broome v Cassell and Co Ltd


Lord Hailsham of St Marylebone LC, Lord Reid, Lord Morris of Borth-y-Gest, Viscount Dilhorne, Lord Wilberforce, Lord Diplock and Lord Kilbrandon


[1972] 2 WLR 645, [1972] AC 1027, [1972] UKHL 3


lip, Bailii


Administration of Justice (Miscellaneous Provisions) Act 1933


England and Wales


CorrectRookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
CitedYoung v The Bristol Aeroplane Co Ltd CA 28-Jul-1944
Court of Appeal must follow Own Decisions
The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered . .
CitedE Hulton and Co v Jones HL 1910
An article was written by a correspondent of an English newspaper reporting that at a large and well attended motor vehicle show in France there on the terraces was ‘Artemus Jones with a woman not his wife who must be you know – the other thing.’ . .
CitedAustralian Consolidated Press Limited v Uren PC 24-Jul-1967
The Board declined to interfere with the decision of the High Court of Australia not to review its jurisprudence on exemplary damages: ‘[I]n a sphere of law where its policy calls for decision and where its policy in a particular country is . .
CitedUren v John Fairfax and Sons Pty Ltd 2-Jun-1966
(High Court of Australia) ‘It seems to us that, in a case where there is no qualified privilege to report or repeat the defamatory statements of others, the whole cohesion of the law of defamation would be destroyed, if it were permissible merely to . .
CitedLey v Hamilton HL 1935
The House approved awards of punitive or exemplary damages. Lord Atkin said: said that damages awards for defamation were not arrived at ‘by determining the ‘real’ damage and adding to that a sum by way of vindictive or punitive damages. It is . .
CitedManson v Associated Newspapers Ltd 1965
Widgery J said: ‘Of course, a newspaper is always published for profit. It is the purpose of a newspaper to make money and build up circulation. You must not go away with the idea that because of that any libel in a newspaper is a libel for which . .
CitedBroadway Approvals Ltd v Odhams Press Ltd (No 2) CA 1965
A company’s mind is not to be assessed on the totality of knowledge of its employees. Malice was not to be established by forensic imagination however eloquently and subtly expressed.
Russell LJ said: ‘the law of libel seems to have . .
CitedMafo v Adams CA 1969
The plaintiff tenant was tricked out of the occupancy of the flat he was living in by a blatant fraud perpetrated by the defendant landlord. He sued for damages for fraud, and was awarded compensation for the inconvenience and discomfort. In a case . .
CitedFielding v Variety Incorporated CA 1967
. .
CitedPractice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Appeal fromCassell and Co Ltd v Broome and Another CA 24-Mar-1971
. .
CitedHulton and Co v Jones HL 6-Dec-1909
The defendant newspaper published an article describing the attendance at a motor race at Dieppe. It described the antics, intending to refer to a fictitious person, of one Artemus Jones, and said of him that he was ‘with a woman who is not his . .

Cited by:

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CitedGleaner Company Ltd and Another v Abrahams PC 14-Jul-2003
Punitive Defamation Damages Order Sustained
(Jamaica) The appellants challenged a substantial award of damages for defamation. They had wrongfully accused a government minister of corruption. There was evidence of substantial financial loss. ‘For nearly sixteen years the defendants, with all . .
CitedGodfrey v Demon Internet Limited (2) QBD 23-Apr-1999
Evidence of Reputation Admissible but Limited
The plaintiff had brought an action for damages for defamation. The defendant wished to amend its defence to include allegations that the plaintiff had courted litigation by his action.
Held: A judge assessing damages should be able see the . .
CitedDesign Progression Limited v Thurloe Properties Limited ChD 25-Feb-2004
The tenant applied for a licence to assign. The landlord failed to reply, anticipating that delay would allow it to generate a better lease renewal.
Held: The delay was unreasonable and a breach of the landlord’s statutory duty, and was an act . .
AppliedRiches v News Group Newspapers Ltd CA 20-Feb-1985
The defendant published serious defamatory allegations against several plaintiff police officers. The defendant newspaper appealed against an award of andpound;250,000 exemplary damages for their defamation of the respondent police officers.
CitedGeorge Galloway MP v Telegraph Group Ltd QBD 2-Dec-2004
The claimant MP alleged defamation in articles by the defendant newspaper. They claimed to have found papers in Iraqi government offices after the invasion of Iraq which implicated the claimant. The claimant said the allegations were grossly . .
CitedBorders (UK) Ltd and others v Commissioner of Police of the Metropolis and Another CA 3-Mar-2005
The second defendant had received large numbers of stolen books and sold them from his stall. An application for compensation was made at his trial. Compensatory and exemplary damages were sought, but the court had to consider how to estimate the . .
CitedMerson v Cartwright, The Attorney General PC 13-Oct-2005
(Bahamas) The defendant police had appealed the quantum of damages awarded to the claimant for assault and battery and false imprisonment and malicious prosecution, saying that she had been doubly compensated. The claimant now appealed reduction of . .
CitedKay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
CitedA v Bottrill PC 9-Jul-2002
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Held: The Board considered whether it would be correct to require an additional . .
CitedRowlands v Chief Constable of Merseyside Police CA 20-Dec-2006
The claimant succeeded in her claims for general damages against the respondent for personal injury, false imprisonment and malicious prosecution, but appealed refusal of the court to award aggravated damages against the chief constable.
Held: . .
CitedMosley v News Group Newspapers Ltd QBD 24-Jul-2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
CitedSmith v ADVFN Plc and others QBD 25-Jul-2008
The claimant had brought multiple actions in defamation against anonymous posters on an online forum. The claimant sought to lift the stay which had been imposed because of the number of actions. The claimant had not yet paid outstanding costs . .
CitedDevenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
CitedPurdy, Regina (on the Application of) v Director of Public Prosecutions and others CA 19-Feb-2009
The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .
CitedTakitota v the Attorney General and others PC 18-Mar-2009
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Held: ‘it would not be . .
CitedRegina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
CitedThornton v Telegraph Media Group Ltd QBD 16-Jun-2010
The claimant said that a review of her book was defamatory and a malicious falsehood. The defendant now sought summary judgment or a ruling as to the meaning of the words complained of.
Held: The application for summary judgment succeeded. The . .
CitedBrugger v Medic-Aid Ltd PatC 1996
The defendant had admitted copying B’s drawings and designs for the creation of a nebulizer. To assist its election on damages, B sought preparation of details of the sales including costs and sale prices. When B also sought statutory damages, M . .
See AlsoCassell and Co Ltd v Broome (No 2) HL 24-Feb-1972
Their Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point. As the ultimate court of appeal, the House has power to correct any injustice . .
CitedWright v Gregson and Others QBD 1-Jul-2010
The defendant denied that the words complained of were bore the defamatory meaning alleged, and asked the court to rule accordingly and to strike out he claim. He complained of comments about his intentions for the use of money raised for charitable . .
CitedLawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .
CitedLumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
CitedCairns v Modi CA 31-Oct-2012
Three appeals against the levels of damages awards were heard together, and the court considered the principles to be applied.
Held: In assessing compensation following a libel, the essential question was how much loss and damage did the . .
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
CitedDhir v Saddler QBD 6-Dec-2017
Slander damages reduced for conduct
Claim in slander. The defendant was said, at a church meeting to have accused the client of threatening to slit her throat. The defendant argued that the audience of 80 was not large enough.
Held: ‘the authorities demonstrate that it is the . .
CitedTurley v Unite The Union and Another QBD 19-Dec-2019
Defamation of Labour MP by Unite and Blogger
The claimant now a former MP had alleged that a posting on a website supported by the first defendant was false and defamatory. The posting suggested that the claimant had acted dishonestly in applying online for a category of membership of the . .
CitedLachaux v Independent Print Ltd and Another SC 12-Jun-2019
Need to Show Damage Increased by 2013 Act
The claimant alleged defamation by three publishers. The articles were held to have defamatory meaning, but the papers argued that the defamations did not reach the threshold of seriousness in section 1(1) of the 2013 Act.
Held: The appeal . .
CitedSimon and Others v Lyder and Another PC 29-Jul-2019
(Trinidad and Tobago) The Board was asked as to the well-known conundrum in the common law of defamation, namely the extent to which (if at all) two or more different statements made upon different occasions by the same defendant may be aggregated . .
Lists of cited by and citing cases may be incomplete.

Defamation, Damages, Litigation Practice, Constitutional

Leading Case

Updated: 24 April 2022; Ref: scu.174047