Collins Stewart Ltd & Anor v The Financial Times Ltd.

A claimant cannot ordinarily increase damages for one defamatory publication by relying on later publications which are not sued on separately. Later publications may constitute separate torts and should generally be pleaded as separate causes of action, allowing liability and any defences to be determined without double recovery.

Compensatory damages may reflect reputational harm and the need to vindicate reputation. Aggravated damages serve a different function: compensation for injury to feelings caused by the defendant’s conduct. Since a corporation has no feelings and cannot suffer distress, aggravated damages are unavailable to a corporate claimant.

Collins Stewart Limited and Collins Stewart Tullett Plc sued The Financial Times Limited over an article published on 27 August 2003. They sought to rely on four later articles, published on 28 and 30 August, to increase damages for the original article, although those later publications were not pleaded as separate libels.

The defendant applied to strike out the relevant pleading. The central issues were whether the later articles could be used in assessing damages for the original publication and whether a corporate claimant could recover aggravated damages based on subsequent conduct by the defendant.

1. The application was granted and paragraph 8.3 of the Particulars of Claim was struck out. The application was not defeated by lateness. Although strike-out applications should generally be made promptly, lateness did not justify refusal where the application raised a point of law, particularly since the defendant had reserved its position. The allegation of overreaching was unsupported.

2. A claimant may recover compensatory damages for damage to reputation, standing and good name caused by the publication sued on. The award may also be sufficient to vindicate reputation. The law recognises that defamatory material may continue to cause harm after its original publication, as explained in Broome v Cassell and Slipper v BBC.

3. Where later articles add to the claimant’s damage, they should generally be sued on as separate causes of action. This permits their meaning, defamatory character and any defence of justification or fair comment to be determined, and allows separate awards without double-counting. It is objectionable in principle and practice to use later, unsued publications to increase damages for the original article, especially where the later articles contain distinct allegations or partly repeat the original libel.

4. Aggravated damages are compensation for additional injury to the claimant’s feelings caused by the defendant’s conduct, including high-handed conduct, repetition, persistence in justification or failure to apologise. They are distinct from compensation for reputational damage. A corporation has no feelings and cannot suffer distress; accordingly, aggravated damages are in principle unavailable to a corporate claimant. The reasoning in Messenger Newspapers Group Ltd v National Graphical Association was treated as an award which, despite its label, more closely resembled exemplary damages.

5. The distinction between an apology reducing reputational damage and subsequent conduct aggravating injury to feelings is principled. An apology may repair the original reputational harm. Its absence, or conduct said to worsen the claimant’s hurt, cannot create an entitlement to aggravated damages for a corporation. The court also rejected reliance on The Gleaner Co Ltd v Abrahams as supporting such a claim.

6. Paragraph 8.3 was therefore not properly arguable, disclosed no reasonable grounds for claiming damages, and was struck out under grounds (a) and (b) of the application. The judge stated that, alternatively, it would have been struck out on case-management and proportionality grounds.