The law as to what might properly play a part in the assessment of damages for a defamatory allegation was clear. There were defined categories, such as facts proved in partial justification, which were recognised as legitimate bases for reducing damages. The mere fact that something had been mentioned in an article complained of as a libel did not make it proper to rely on it in mitigation of damages.
The claimant applied to strike out parts of the defence and the defendants cross-applied for permission to amend the defence in a libel action.

The claimant, who was originally from Tunisia, was the founder of the Islam Channel, a UK-based television channel. The first defendant was an organisation which described itself as a Jewish-Muslim interfaith organisation and the second defendant was its director. The claim arose from an article which the defendants had posted on their website under the heading “Subway withdraws sponsorship of extremist charity fundraiser”, which referred to the fact that the food company had withdrawn its support for a conference once it became aware of alleged “extremist links”. The article identified those extremist links and alleged that the claimant was a “convicted terrorist”. Those two words were linked to an article on a newspaper website which suggested that the Conservative Party was boycotting the event and which identified the claimant and Islam Channel as organisers of the conference. The defendants’ article remained on the website for 14 months. The defendants put forward a qualified privilege defence on the basis that the statement that the claimant was a terrorist or a convicted terrorist was a fair and accurate report of proceedings in Tunisia and had been copied from a summary of an international arrest warrant. The issue was whether the defendants should be allowed to plead their case in answer to the claimant’s assertion of serious harm to reputation and of substantial damage in an amended form.

HELD: (1) The reference in the defendants’ amended pleadings to background context was objectionable as it failed to tell the claimant what particular material was said to belong in the category of directly relevant background, Burstein v Times Newspapers Ltd [2001] 1 W.L.R. 579 considered. In relation to the Tunisian convictions, the fact that the claimant had been convicted was something that might be pleaded in relation to the amount of damages. It was a fact capable, if not admitted, of proof without undue expense or difficulty, which a court might consider to have some bearing on damages. Provided the status of the convictions had been understood and agreed there were no case management reasons for excluding it. The claimant’s application only succeeded in so far as the defendants’ plea of bad reputation should be deleted (paras 34- 37 of judgment). 

(2) In relation to matters in the defendants’ article which had not been complained about, the submission that their article encompassed the newspaper article went beyond the pleadings. The argument that it was not necessary to identify the matters to be relied on was inconsistent with the approach adopted in the original pleading and did not help the court achieve the overriding objective. The amended pleading was confused and failed to make clear what was to be relied on, which was a manifest and unacceptable defect. The defendants did not seek to prove the truth of any of the other matters relied on; only the fact that they had been asserted in the article. There were defined categories for what might properly play a part in the assessment of damages, such as facts proved in partial justification, or Burstein context, which were recognised as legitimate bases for reducing damages. The mere fact that something had been mentioned in an article complained of as a libel did not make it proper to rely on in mitigation of damages, Plato Films Ltd v Speidel [1961] A.C. 1090 applied. Where an issue arose as to the causation of some identifiable kind of harm, such as financial loss, a defendant was entitled to require the claimant to establish a causal link between the publication and the harm, and to adduce evidence of his own. In this way, other allegations that had been made in the article complained of and which could have been causative of the specific kind of harm relied on could come into play. The instant case was not one where serious harm had been alleged and competing causes had to be examined and evaluated. The court might or might not draw the inference that serious harm to reputation had been caused and it would not be deterred from doing so by any conclusion it might have arrived at about the gravity of the harm likely to have been caused by other allegations in the same article. The draft pleading failed to make sufficiently clear exactly what conduct the defendants wished to rely on. The reader was left in the dark as to what it was about membership of the Tunisian Islamic Front that was said to bear on the issue of reputational harm, and the nature of the revolution said to have been advocated by the claimant. The pleading was a hopeless mix of third party conduct, and vague smear from an unattributed source. The defendants had failed to make clear enough the basis on which the claimant was to be blamed for the attendance of banned extremists (paras 38-52).

Judgment accordingly

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