Burstein v Times Newspapers Ltd

In assessing libel damages, the court may admit confined facts directly relevant to the context in which the defamatory publication was made. The rule against proving particular acts merely to attack a claimant’s general reputation, character or disposition does not exclude such contextual evidence.

A defendant need not advance an unsustainable plea of justification in order to rely on directly relevant facts in mitigation. It remains impermissible to use a sham plea of justification, or mitigation, as a vehicle for a roving inquiry into unrelated misconduct. The Civil Procedure Rules 1998 require the court to confine evidence fairly and proportionately. Summary relief under the Defamation Act 1996 remains a broad discretionary assessment of adequate compensation.

The claimant, a musical composer, sued the defendant newspaper for libel over an assertion that he had organised groups of hecklers to disrupt performances of modern atonal music. The defendant did not plead justification. Its pleaded defence of fair comment was struck out because the words were statements of fact.

The deputy High Court judge excluded the facts pleaded for fair comment from the assessment of damages, refused summary disposal under the Defamation Act 1996, and a jury awarded £8,000. The newspaper appealed against the evidential ruling, the refusal of summary disposal, and the award. The central issue was whether directly relevant background facts could be admitted in mitigation despite the absence of a sustainable justification defence.

1. The appeal was dismissed unanimously. May LJ gave the principal judgment. Sir Christopher Slade agreed, while stressing that the admissibility conclusion arose on the special facts. Aldous LJ also agreed.

2. The deputy judge was partly wrong to exclude all the proposed material. The rule in Scott v Sampson does not prevent evidence of particular facts that is directly relevant to the contextual background of the defamatory publication. It prevents a roving inquiry into particular acts relied on merely to show that the claimant has a bad general reputation, character or disposition. The court should apply the Civil Procedure Rules 1998 to confine evidence to what is directly relevant and proportionate.

3. Accordingly, a limited body of evidence concerning the claimant’s association with The Hecklers, the invitation to boo at the end of a performance, the absence of disruption during the performance, and his participation in booing at its conclusion should have been admitted. Tendentious allegations and material about his supposed self-regard as a composer were irrelevant and should have remained excluded.

4. A defendant is not required to plead an unsustainable justification defence merely to place directly relevant contextual facts before the jury in mitigation. It may accept that the publication is untrue and unjustified, yet rely on admissible contextual facts which could otherwise have formed part of a justification case. What remains prohibited is an attempt to introduce inadmissible specific allegations under the guise of a partial or failed justification.

5. The error did not invalidate the refusal of summary disposal under sections 8 and 9 of the Defamation Act 1996. The judge’s broad assessment that the statutory package, including damages capped at £10,000, would not adequately compensate the claimant remained justified when the claimant’s anticipated evidence was considered.

6. Nor was there a basis to reduce the jury’s £8,000 award. The limited contextual facts could have had some reducing effect, but the claimant’s evidence, including that the performance had not been disrupted, could neutralise it. The court was not persuaded that a properly informed jury would have awarded less.

• Court of Appeal: appeal dismissed. The court held that the evidential exclusion was partly erroneous, but upheld the refusal of summary disposal and the jury’s £8,000 award.

• High Court (Queen’s Bench Division): His Honour Judge Richard Walker, sitting as a deputy High Court judge, excluded the defendant’s proposed mitigation evidence, refused summary disposal, and proceeded to a jury assessment of damages.