In considering what evidence can be used in mitigation of damages in defamation, it is necessary to draw a distinction between evidence which is put forward to show that the plaintiff is a man of bad reputation and evidence which is already before the court on some other issue. Neill LJ set out rules for evidence which relates solely to the plaintiff’s bad reputation. First was that it must be evidence of the plaintiff’s general reputation and may not relate to specific acts of misconduct, and that the evidence must also relate to the relevant area or sector of the plaintiff’s reputation. Having referred to other rules, Neill LJ said that a defendant is also entitled to rely on any other evidence which is properly before the court and jury, including evidence which has been primarily directed to, for example, a plea of justification or fair comment.
‘There may be cases however where a Defendant who puts forward a defence of justification will be unable to prove sufficient facts or establish the defence . . Nevertheless the Defendant may be able to rely on such acts as he has proved to reduce the damages perhaps, almost to vanishing point’.
Neill LJ said: ‘But a defendant is also entitled to rely in mitigation of damages on any other evidence which is properly before the court and jury. This other evidence can include evidence which has been primarily directed to, for example, a plea of justification or fair comment. It is to be remembered that section 5 of the Defamation Act 1952 enables a defendant to succeed on the issue of liability even though he does not prove the truth of all the defamatory material of which complaint is made. The section is in these terms: ‘In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.’
Section 6 of the Defamation Act 1952 contains a similar provision relating to the defence of fair comment, and it is to be noted that from the outset the defendants in the instant case pleaded that they intended to rely if necessary on sections 5 and 6. There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will also be unable to bring himself within the statutory extension of the defence contained in section 5 of The Defamation Act 1952. Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, maybe of great importance on the issue of damages.’
Judges:
Neill LJ
Citations:
[1988] 1 WLR 116, [1988] 1 All ER 282
Statutes:
Jurisdiction:
England and Wales
Citing:
See Also – Pamplin v Express Newspapers Ltd 1985
A costs judge does not have any power to order discovery to be given: he does not have any power to override a right of privilege. But he has a duty if the respondent raises a relevant factual issue to require the claimant to prove the facts on . .
Cited by:
Cited – Basham v Gregory and Little Brown and Co CA 2-Jul-1998
The defendant sought a retrial of his action for defamation.
Held: The judge’s directions on meaning as to the respective contentions was correct, and also the allocation of the burden of proof. Whilst the court had reservations about the . .
See Also – Pamplin v Express Newspapers Ltd 1985
A costs judge does not have any power to order discovery to be given: he does not have any power to override a right of privilege. But he has a duty if the respondent raises a relevant factual issue to require the claimant to prove the facts on . .
Cited – Grobbelaar v News Group Newspapers Ltd and Another CA 18-Jan-2001
The claimant had been awarded andpound;85,000 damages in defamation after the defendant had wrongly accused him of cheating at football. The newspaper sought to appeal saying that the verdict was perverse and the defence of qualified privilege . .
Cited – Grobbelaar v News Group Newspapers Ltd and Another HL 24-Oct-2002
The claimant appealed against a decision of the Court of Appeal quashing the judgement in his favour for damages for defamation.
Held: The Court of Appeal was not able to quash a jury verdict as perverse, and the appeal succeeded. An appellate . .
Cited – Robins v Kordowski and Another QBD 22-Jul-2011
The claimant solicitor said he had been defamed on the first defendant’s website (‘Solicitors from Hell’) by the second defendant. The first defendant now applied to set aside judgment entered by default. The claimant additionally sought summary . .
Cited – Atkinson v Fitzwalter CA 25-Mar-1987
A court should not grant leave to amend a pleading into a form which is liable to be struck out. The more serious the allegation that is made, the more clearly satisfied must the Court be that no prejudice will be caused that cannot be compensated . .
Cited – McDonalds Corp and Another v Steel and Another CA 25-Mar-1994
The plaintiff company had sued the defendants in defamation with regard to a leaflet publishd and distributed by them. The defendants argued justification. The defendants appealed against an order striking out parts of their defence, saying that the . .
Cited – Turner v News Group Newspapers Ltd and Another CA 16-May-2006
Application to determine compensation for admitted defamation.
Keene LJ considered both Pamplin and Burstein as bases for reliance upon other ‘misconduct’ of a claimant to reduce damages: ‘it needs to be borne in mind that the principle of . .
Cited – Dhir 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 . .
Cited – Turley 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 . .
Lists of cited by and citing cases may be incomplete.
Defamation, Damages
Updated: 22 September 2022; Ref: scu.185254