When the litigation winner becomes the loser: undeserving claimants and mitigation of damages in libel claims

ABSTRACT

The article assesses how the English courts have compensated defamed claimants who had misconducted themselves before action or during the course of litigation. It demonstrates that in recent years judges appear to have liberalised their approach to accepting evidence in mitigation of libel damages and allowed claimants’ disreputable conduct to restrict the level of awards almost to a vanishing point. The article argues that this emerging approach does not cohere with that adopted in other branches of tort, where claimants’ misbehaviour does not affect the level of general damages awarded, and carries with it the risk of undermining the vindicatory policy of libel law.

KEYWORDS:

• Libel
• damages
• mitigation
• dishonest claimants

Acknowledgements

I am immensely grateful to Prof Lorna Woods for her valuable comments on earlier versions of the manuscript. Any errors are my own responsibility and should not tarnish the reputation of this esteemed professional.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Alexandros Antoniou is a Lecturer in Media Law at the University of Essex. His research interests lie principally within the fields ofcommunications law, media ethics and intellectual property asset management.

ORCID

Alexandros Antoniou http://orcid.org/0000-0002-4249-0939

Notes

1 Sutcliffe v Pressdram Ltd [1991] 1 QB 153, 184 (Nourse LJ); John v MGN Ltd [1997] QB 586, 616; John Clement Carpenter Gatley, Gatley on Libel and Slander (12th ed, Sweet & Maxwell 2017) 9.18.

2 Scott v Sampson (1882) 8 QBD 491.

3 For a discussion of cases where it is established as a result of preliminary proof, or it transpires during proof, that litigants have set out to put the fairness of the trial in jeopardy by fraudulent means, see The Rt Hon Lord Reed, ‘Lies, Damned Lies: Abuse of Process and the Dishonest Litigant’, lecture delivered at the University of Edinburgh in October 2012 as the 5th Annual Lecture at the Centre for Commercial Law <https://www.supremecourt.uk/docs/speech-121026.pdf> accessed 28 May 2018

4 Gatley (n 1) 1.1.

5 Jason Varuhas, ‘The Concept of “Vindication” in the Law of Torts: Rights, Interests and Damages’ (2014) 34(2) OJLS 253.

6 Barron and Anr v Vines [2016] EWHC 1226, [21] (Warby J); Zahawi v Press TV [2017] EWHC 1010, [15] (Master McCloud).

7 Terry Hutchinson and Nigel Duncan, ‘Defining and describing what we do: doctrinal legal research’ (2012) 17(1) Deakin Law Review 83.

8 Fairclough Homes Ltd v Summers [2012] UKSC 26 (27 June 2012).

9 John McGhee, Snell’s Equity (33rd ed, Sweet & Maxwell 2017) 5-010; see also Grobbelaar v News Group Newspapers Ltd and Anor [2002] UKHL 40, [90] (Lord Scott).

10 Clarke (t/a Elumina Iberica UK) v Bain [2008] EWHC 2636, [55] (Tugendhat J).

11 A final injunction preventing further publication of the defamatory statement may accompany an award of damages. Interim injunctions ordered before publication are more controversial remedies. The rule against prior restraints is strengthened by s 12 of the HRA 1998 concerning interim reliefs.

12 Christian Witting, Street on Torts (14th ed, OUP 2015) 584.

13 Rookes v Barnard [1964] AC 1129, 1221 (Lord Devlin).

14 Lachaux v Independent Print Ltd & Evening Standard Ltd [2017] EWCA Civ 1334, [58] and [82] (Davis LJ).

15 John (n 1) 607E-F (Sir Thomas Bingham MR); Cairns v Modi; KC v MGN Ltd [2012] EWCA Civ 1382, [21] (Judge LCJ).

16 Eric Barendt, ‘What is the Point of Libel Law?’ (1999) 52(1) Current Legal Problems 110, 115; Broome v Cassell & Co Ltd [1972] AC 1027, 1070 (Lord Hailsham); see further Robert Post, ‘The Social Foundations of Defamation Law: Reputation and the Constitution’ (1986) 74(3) California Law Review 691.

17 Rantzen v Mirror Group Newspapers (1986) Ltd and Ors [1994] QB 670, 696 (Neill LJ); Hourani v Thompson and Ors [2017] EWHC 432, [237] (Warby J).

18 See Zahawi (n 6) (£200,000); Rahman v ARY Network Ltd [2016] EWHC 3110 (£185,000); Al-Amoudi v Kifle and Anr [2013] EWHC 293 (£180,000); Cruddas v Calvert, Blake and Times Newspapers Ltd [2013] EWHC 2298 (£180,000 but reduced to £50,000 on appeal); Harrath v Stand for Peace Ltd and Anr [2017] EWHC 653 (£140,000). Comparatively lower awards were made in: Sooben v Badal [2017] EWHC 2638 (70,000); Hourani (n 17) (80,000); Flood v Times Newspapers Ltd [2013] EWHC 4075 (£60,000); Garcia v Associated Newspapers Ltd [2014] EWHC 3137 (£45,000); Barron v Collins [2017] EWHC 162 (£54,000); Lisle-Mainwaring v Associated Newspapers Ltd and Anr [2017] EWHC 543 (£54,000); Monroe v Hopkins [2017] EWHC 433 (£24,000); Kadir & Barakah UK Ltd v Channel S Television [2014] EWHC 2305 (£20,000); Barron (n 6) (£40,000); Oyston and Ors v Ragozzino [2015] EWHC 3232 (£20,000); and Woodward v Grice [2017] EWHC 1292 (£18,000).

19 Varuhas (n 5) 283. However, characteristics specific to a claimant, like the subjective impact of the libel on them, may be considered; see Cruddas v Adams [2013] EWHC 145, [48] – [49] (Eady J). In this case, the defamatory allegations that Mr Cruddas was ‘a criminal who deserved to be behind bars’ were found to have gravely damaged his personal reputation which was ‘intimately linked’ to that of his business; see also Michael Jones (ed), Clerk and Lindsell on Torts (22nd ed, Sweet & Maxwell 2017) 22-226.

20 Rantzen (n 17) 696 (Neill LJ).

21 John (n 1) 607 (Sir Thomas Bingham MR).

22 Ibid; see also Gathercole v Miall (1846) 15 M & W 319, 331 (Pollock CB).

23 Cairns (n 15) [27] (Judge LCJ).

24 Broome (n 16) 1125 (Lord Diplock).

25 David Rolph, Reputation, Celebrity and Defamation Law (Routledge 2016) 44.

26 David Rolph, ‘Vindicating Reputation and Privacy’ in Andrew Kenyon (ed), Comparative Defamation and Privacy Law (CUP 2016) 296.

27 Purnell v Business Magazine Ltd [2007] EWCA Civ 744.

28 Ibid [29] (Laws LJ, with whom the other two members of the court agreed).

29 Ibid.

30 Ibid [30].

31 Al-Amoudi v Kifle [2011] EWHC 2037, [38] (HHJ Richard Parkes).

32 Dingle v Associated Newspapers [1964] AC 371, 396 (Lord Radcliffe).

33 (1966) 117 CLR 118, 151 (emphasis in the original).

34 Broome (n 16) 1071 (Lord Hailsham).

35 Sloutsker v Romanova (Rev 1) [2015] EWHC 2053, [77].

36 Metropolitan International Schools Ltd v Designtechnica Corp [2010] EWHC 2411, [35] (Tugendhat J);

37 Farrall v Kordowski [2011] EWHC 2140 (Lloyd Jones J).

38 Harrath (n 18) [23].

39 [2013] EWHC 662, [72].

40 Kit Barker, ‘Private and Public: The Mixed Concept of Vindication in Torts and Private Law’ in Stephen Pitel, Jason Neyers and Erika Chamberlain (eds), Tort Law: Challenging Orthodoxy (Hart Publishing, 2013) 76.

41 The Gleaner Co Ltd v Abrahams [2003] UKPC 55, [55] (Lord Hoffman).

42 John (n 1) 607E-F (Sir Thomas Bingham MR); Jameel v Wall Street Journal Europe SPRL [2006] UKHL 44, [24] (Lord Bingham of Cornhill); McCarey v Associated Newspapers Ltd and Ors (No 2) [1965] 2 QB 86, 105 (Pearson LJ).

43 Barron v Collins (n 18), [26].

44 Rai v Bholowasia [2015] EWHC 382, [179] (HHJ Parkes QC); Barron v Collins (n 18) [26]; Harrath (n 18); Lisle-Mainwaring (n 18) [62]. The ceiling figure rises with inflation but its increase since 2012, when Tugendhat J noted in Cairns (n 15) [25] and ZAM (n 39) [65] that it was about £275,000, is also a consequence of Simmons v Castle [2012] EWCA Civ 1039, in which the Court of Appeal set guidelines on the level of general damages for all types of non-pecuniary loss in all civil actions, at 10 per cent higher with effect from 1 April 2013.

45 See John (n 1) 608, where Lord Bingham famously described the jurors as being in a position of ‘sheep loosed on an unfenced common, with no shepherd’, lacking an instinctive sense of where to pitch their award. The jury’s discretion in assessing damages is not, however, unfettered. The Courts and Legal Services Act 1990, s 8 empowers the Court of Appeal to level down what it may consider to be extravagant damages and substitute a ‘proper award’ without being invited to so by the parties; see John (n 1), McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277 and Kiam v MGN Ltd [2002] EWCA Civ 43, in which the Court of Appeal provided further guidance on when and how this power should be exercised.

46 Defamation Act 2013, s 11.

47 Barron v Vines (n 6) [81] (Warby J).

48 Pirtek (UK) Ltd v Jackson [2017] EWHC 2834.

49 Defamation Act 2013, s 1(2).

50 Defamation Act 1996, s 9(1)(c). Where the summary procedure under ss 8–10 of the Act applies, damages are capped at £10,000.

51 Pirtek (n 48) [75].

52 Flood (n 18) [59] (Davies J).

53 Ibid.

54 Normann Witzleb and Robyn Carroll, ‘The role of vindication in torts damages’ (2009) 17 Tort Law Review 16, 35.

55 Livingstone v The Rawyards Coal Company (1880) 5 App Cas 25, 39 (Lord Blackburn).

56 Rookes (n 13) 1228 (Lord Devlin).

57 John (n 1) 587. In the last 50 years, the law concerning the award of exemplary damages has been considered in three cases by the House of Lords, i.e. Rookes (n 13), Broome (n 16), Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122, and in one case in the Supreme Court, i.e. R (Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671. Their facts are not relevant for present purposes.

58 John (n 1) 607 (Sir Thomas Bingham MR). See, however, in Broome (n 16) 1086 Lord Reid’s position on the ‘highly anomalous’ punitive practice of awarding exemplary damages in civil proceedings without clear legal basis for doing so.

59 Broome (n 16) 1073 (Lord Hailsham).

60 Varuhas (n 5) 290.

61 Crime and Courts Act 2013, s 34(6).

62 Ibid s 34(2).

63 Johnson v Steele and Ors [2014] EWHC B24, [12] (Eady J).

64 The Right Honourable Lord Justice Leveson, An Inquiry into the Culture, Practices and Ethics of the Press, Volume IV (The Stationary Office 2012) 1510.

65 For the relationship between aggravated damages and other types of damages, see Gatley (n 1) 9.21 and Mark Lunney, Donal Nolan and Ken Oliphant, Tort Law (6th ed, OUP 2017) 891 who draw attention to the overlap between aggravated and exemplary damages.

66 Johnson (n 63).

67 Law Commission, Aggravated, Exemplary and Restitutionary Damages (Law Com No 247, 1997) 183.

68 Crime and Courts Act 2013, s 39.

69 Owners of the Steamship Mediana v Owners of the Lightship Comet Mediana [1900] AC 113, 116.

70 Lord Scott, ‘Damages’ (2007) 4 Lloyd’s Maritime and Commercial Law Quarterly 465, 469; James Edelman, Jason Varuhas and Simon Colton (eds), McGregor on Damages (20th ed, Sweet & Maxwell 2017) 12-011; Varuhas (n 5) 275, 292.

71 Beaumont v Greathead (1846) 2 CB 494, 499 (Maule J).

72 Hyde Park Residence Ltd v Yelland and Ors [1999] EMLR 654, 672 (Jacob J); Anglo Cyprian Trade Agencies v Paphos Wine Industries [1951] 1 All ER 873.

73 Senior Courts Act 1981, s 51 and CPR 44.2(1), discussed later.

74 Baily v Truth and Sportsman Ltd (1938) 60 CLR 700, 708 (Latham CJ), 728 (McTiernan J).

75 Whittaker v Scarborough Post Newspaper Co [1896] 2 QB 148, 149.

76 Newstead v London Express Newspapers [1940] 1 KB 377 (CA).

77 Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR 116 (CA).

78 John (n 1) 607–608 (Sir Thomas Bingham MR).

79 Cruddas v Adams (n 19) [41] (Eady J).

80 See Cruddas v Calvert (n 18) [301] – [303], in which the cross-examination of the claimant and the defendant’s conduct were found by the court to be ‘offensive’ to him.

81 Rahman (n 18) [106] (Eady J); Woodward (n 18).

82 Pearson v Lemaitre (1843) 5 M & G 700, 719 (Tindal CJ).

83 Defamation Act 1952, s 12.

84 Pamplin (n 77) 120 (Neill LJ).

85 Clerk and Lindsell on Torts (n 19) 22-239.

86 Jameel v Dow Jones & Co [2005] EWCA Civ 75, [70] (Phillips LJ).

87 Thornton v Telegraph Media Group Ltd [2010] EWHC 1414, [86] (Tugendhat J).

88 Explanatory Notes to the Defamation Act 2013, para 11.

89 Joint Committee on the Draft Defamation Bill, Draft Defamation Bill (2010-12, HL 203, HC 930-I) [62]; Ministry of Justice, The Government’s Response to the Report of the Joint Committee on the Draft Defamation Bill (Cm 8295, 2012) paras 8-10.

90 Lachaux (n 14) [43].

91 Ibid [78].

92 Ibid.

93 Ibid [44] (emphasis in the original).

94 At the time of writing (November 2018), the Supreme Court is considering the proper construction of s 1(1) of the 2013 Act and the extent to which the bar has been raised in Lachaux (Respondent) v Independent Print Limited and Anr (Appellants) UKSC 2017/0175, against the Court of Appeal decision of Davis LJ, with whom MacFarlane and Sharp LJJ concurred, [2017] EWCA Civ 1334.

95 Lachaux (n 14) [72] and [82].

96 Ibid.

97 Scott (n 2) 503 (Cave J); Speidel v Plato Films Ltd and Ors [1960] 3 WLR 391, 396 (Devlin LJ).

98 Scott (n 2).

99 Speidel (n 97) 396 (Devlin LJ).

100 Lord Chancellor's Department (LCO 13/124), Report of Committee on Defamation (Cmnd 5909, 1975) para 363; Clerk and Lindsell on Torts (n 19) 22-242.

101 Goody v Odhams Press Ltd [1964] 1 QB 333, 340 (Lord Denning MR); applied in King v Grundon [2012] EWHC 2719.

102 See, for example, the recent case of Oyston (n 18), where the High Court assessed damages in a defamation claim brought by the claimant football club, its chairman and its owner against a club supporter, who had made several postings on Internet websites containing allegations of a sexual nature against them and falsely alleging corrupt behaviour. The club’s owner had been convicted of a rape and indecent assault in 1996. The judge noted that the defendant was not prohibited from making a reference to this aspect of the claimant’s personal past and that damages had to be reduced because of the claimant’s general bad reputation in relation to his sexual conduct.

103 Report of Committee on Defamation (n 100); Gwyneth Pitt, ‘Report of the Committee on Defamation’ (1976) 39(2) MLR 187.

104 Turner v News Group Newspapers Ltd and Anr [2006] EWCA Civ 540, [38] – [40].

105 Richard Caddell, ‘Directly relevant background context’ and defamation damages’ (2006) 65(3) CambLJ 493, 495.

106 Burstein v Times Newspapers Ltd [2001] 1 WLR 579.

107 CPR 1.1.

108 Turner (n 104).

109 Ibid [89]; see also Keene LJ’s less simple construction in [56].

110 Dingle (n 32) 395 (Lord Radcliffe).

111 Watts v Fraser and Anr (1835) 174 ER 154, 155 (Lord Denman CJ); Kelly v Sherlock [1866] LR 1 QB 686, 698 (Blackburn J); Broome (n 16) 1071 (Lord Hailsham LC).

112 Godfrey v Demon Internet Ltd [1999] EWH 240, [15] (Morland J).

113 Ibid [20] (Morland J).

114 Gorman v Mudd (CA, 15 October 1992) (see Russell LJ and Neill LJ in particular).

115 Trumm v Norman [2008] EWHC 116, [53] (Tugendhat J).

116 Ibid [52].

117 [2002] EWCA Civ 1143.

118 Ibid [31].

119 Ibid [119].

120 Ibid [21].

121 Ibid [33].

122 Ibid [115].

123 Senior Courts Act 1981, s 51 and CPR 44.2(1).

124 Craig Joseph, Jason Joseph & Anthony Raymond v Jason Spiller & 1311 Events Ltd [2012] EWHC 2958 (26 October 2012).

125 FlyMeNow Ltd v Quick Air Jet GmbH [2016] EWHC 3197.

126 The loss of one client for a small law firm with high value instructions has been held in Brett Wilson LLP v Person(s) Unknown [2015] EWHC 2628 to show a likelihood of serious financial loss, but what constitutes such a loss for a small privately-owned company is likely to be assessed differently in relation to a large public limited company.

127 Spiller and Anr v Joseph and Ors [2010] UKSC 53 (appeal from Joseph and Ors v Spiller and Anr [2009] EWCA Civ 1075).

128 This was the first libel case considered by the UK Supreme Court since its inception. The court was primarily concerned with the extent to which, if at all, the common law defence of fair comment requires that the comment identifies the matter to which it relates. The test applied by Lord Nicholls that ‘the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based’ is now reflected in s 3(3) of the Defamation Act 2013.

129 Joseph (n 124) [155].

130 Ibid [177].

131 Ibid [166].

132 Ibid [184].

133 Ibid [181].

134 FlyMeNow (n 125) [65].

135 Ibid [55].

136 FlyMeNow (n 125) [132].

137 Ibid [130].

138 Ibid [74].

139 Ibid [75] – [76].

140 Ibid [67].

141 Ibid [96].

142 Ibid [94].

143 Ibid [127].

144 Ibid [54].

145 Ibid [91].

146 Ibid [86].

147 Ibid [110].

148 Ibid [127].

149 Ibid.

150 Burstein (n 106); Turner (n 104) [56].

151 FlyMeNow (n 125) [127].

152 Ibid.

153 Grobbelaar (n 9).

154 Ibid [36] (Lord Steyn).

155 Ibid [24] (Lord Bingham of Cornhill).

156 Ibid.

157 Ibid [27] (Lord Bingham), [69] (Lord Millett).

158 Ibid [28] (Lord Steyn), [61] (Lord Hobhouse of Woodborough), [69] (Lord Millett), [87] (Lord Scott).

159 McGregor on Damages (n 70) 12-009.

160 Summers (n 8).

161 The court also has the power under CPR 3.4(2) to strike out a claim as an abuse of process, i.e. using the legal procedure ‘for a purpose or in a way which is significantly different from its ordinary and proper use’; see Att Gen v Paul Evan John Barker [2000] 1 FLR 759, [19] (Lord Bingham of Cornhill).

162 An example of proceedings constituting an abuse of process in the context of libel could include frivolous or vexatious defamation proceedings where the costs of the litigation would be disproportionate to the benefit accrued by a claimant.

163 Summers (n 8) [61] (Lord Clarke).

164 Ibid [49] (Lord Clarke).

165 Ibid [53] (Lord Clarke).

166 Attorney-General v Newspaper Publishing Plc and Ors [1988] Ch 333, 371.

167 [1968] 1 QB 379. For an interesting example from a different common law jurisdiction, see Fontin v Katapodis [1962] HCA 63, in which the High Court of Australia held that the claimant’s own conduct should not be considered where damages are awarded purely by way of compensation.

168 FlyMeNow (n 125) [132].

169 Ibid [119].

170 Ibid.

171 Joseph (n 124) [169].

172 FlyMeNow (n 125) [126].

173 IRC v Muller & Co Margarine Ltd [1901] AC 217.

174 Lewis v Daily Telegraph [1964] AC 234.

175 Kiam v Neil (No 2) [1996] EMLR 493 (CA), 509 (Beldam LJ).

176 Jameel (n 42) [91] (Lord Hoffman); Jason Varuhas, ‘A Tort-Based Approach to Damages under the HRA 1998’ (2009) 72(5) MLR 750, 766.

177 Tony Weir, A Casebook on Tort (10th ed, Sweet & Maxwell 2004) 7; Varuhas (n 5) 275.

178 Kenneth Abraham, The Forms and Functions of Tort Law (4th ed, West Academic Press 2012) 241.

179 Varuhas (n 176) 765-766.

180 Thomas Gibbons, ‘Using evidence of discreditable behaviour to mitigate libel damages’ (2006) 11(2) CommsL 60, 61. For a discussion on the links of reputation to moral judgments and evaluations of the behaviour of others, see Dan Sperber and Nicolas Baumard, ‘Moral Reputation: An Evolutionary and Cognitive Perspective’ (2012) 27(5) Mind and Language 495.

181 Broome (n 16).

182 Ibid 1071 (Lord Hailsham).

183 Tolley v Fry & Sons Ltd [1931] All ER 131; Morgan v Odhams Press Ltd [1971] 1 WLR 1239; Norman v Future Publishing [1991] EMLR 325.

184 Several authorities stress that reputation refers to the esteem in which a person is held in society; see Plato Films Ltd v Speidel [1961] 1 AC 1090, 1137–9 (Lord Denning), Rantzen (n 17) 695–696 (Neill LJ), McCarey (n 42) 105 (Pearson LJ); see also Jerome Skolnick, ‘The Sociological Tort of Defamation’ (1986) 74(3) California Law Review 677.

185 Witzleb and Carroll (n 54) 34-35.

186 Report of Committee on Defamation (n 100) paras 623–624.

187 John (n 1) 607 (Sir Thomas Bingham MR).

188 See Rolph (n 26) 297, 299.

189 Cleese v Clark [2003] EWHC 137, [37] (Eady J); Farrall (n 37).

190 Dingle (n 32) 404.

191 Cairns (n 15) [31] (Judge LCJ).

192 Ibid.

193 Cruddas v Adams (n 19) [43] (Eady J).

194 Rahman (n 18) [106] (the sum of £185,000 was awarded following a defamatory broadcasting campaign).

195 Rai (n 44) [174].

196 Jeremy Cohen and Sarah Spears, ‘Newtonian Communication: Shaking the Libel Tree for Empirical Damages’ (1990) 67(1) Journalism and Mass Communication Quarterly 51, 58.

197 Joseph v Spiller (Costs) [2012] EWHC 3278.

198 Lord Reed, ‘Lies, Damned Lies’ (n 3) 2.

199 CPR 32.14(1).

200 Calderdale and Huddersfield NHS Foundation Trust v Atwal [2018] EWHC 961.

201 South Wales Fire and Rescue Service v Smith [2011] EWHC 1749, [2] – [7] (Moses LJ), endorsed by the Supreme Court in Summers (n 8) [58].

202 CPR 32.14(2).

203 William Norris, ‘Look out: I’ve got a power, but I am not going to use it’ (2012) 3 Journal of Personal Injury Law 169, 175.

204 Ibid.

205 The average annual overall cost of holding a prisoner in England and Wales is currently estimated £35,371; Ministry of Justice, Prison performance statistics 2016–2017 – Costs per prison place and cost per prisoner 2016 to 2017, Table 2a <https://www.gov.uk/government/statistics/prison-performance-statistics-2016-to-2017> accessed 28 June 2018.

206 Senior Courts Act 1981, s 51 and CPR 44.2(1).

207 [1995] 1 WLR 1176, 1178.

208 CPR 44.2(3) and CPR 44.2(4).

209 Donald Campbell v Pollak [1927] AC 732, 812 (Viscount Cave LC).

210 Summers (n 8) [53] (Lord Clarke).

211 Jameel v Dow Jones (n 86), [69] (Eady J).

212 Liberty, Written Evidence in Joint Committee on the Draft Defamation Bill, Oral and Associated Written Evidence, Volume II (2010–12, HL 203, HC 930-II) 202.

213 Scott (n 2).

214 Paul Mitchell, The Making of the Modern Law of Defamation (Hart 2005) 75.

215 Turner (n 104); Goody (n 101); King (n 101); Oyston (n 18).

216 Praed v Graham (1889) 24 QBD 53, 55 (Lord Esher MR); Broome (n 16) 1071 (Lord Hailsham).

217 Burstein (n 106) 598.

218 Purnell (n 27).