Turner v News Group Newspapers Ltd & Anor

In assessing compensation following an accepted offer to make amends, the court applies the principles governing damages in defamation proceedings. Evidence of specific conduct may mitigate compensation where it is directly relevant to the subject matter of the libel or to the claimant’s reputation or sensitivity in that sector of life. It must be sufficiently relevant that excluding it would create a real risk of assessing damages on a false basis.

No causal connection with the publication, or prior knowledge by the publisher, is required. The principle must nevertheless be applied cautiously to prevent collateral inquiries or oppressive attacks on character. Unsupported or improperly made allegations may increase compensation. A two-stage assessment, followed by a discount reflecting the correction, apology and surrounding conduct, is permissible.

The claimant sued the publisher of the News of the World and his former wife over an article alleging that he had pressured his wife to have sex with other men in the context of swinging. The publisher made an unqualified offer to make amends under section 2 of the Defamation Act 1996. The claimant accepted it, and a correction and apology were published.

The parties could not agree compensation. Eady J therefore assessed it under section 3(5), admitting evidence of the claimant’s attendance at fetish nights, his involvement in arranging pornographic modelling work for his wife, and his earlier voluntary publicity about their marriage. He fixed a £15,000 starting point and applied a 40% discount, awarding £9,000.

The claimant appealed. The central issues were whether Burstein v Times Newspapers Ltd was compatible with the rule excluding evidence of specific misconduct, how its directly relevant background principle applied to offers of amends, and whether the award was legally flawed.

1. Appeal dismissed. The Court of Appeal unanimously held that Eady J was entitled to award £9,000. The award was not manifestly wrong and disclosed no error of principle.

2. Per Keene LJ, the rule in Scott v Sampson, as approved in Speidel v Plato Films Ltd, generally prevents a defendant from mitigating damages through specific misconduct unconnected with the subject matter of the libel. The rule avoids roving inquiries and trials within a trial. It has never been absolute, however. Evidence properly introduced for an unsuccessful plea of justification or fair comment has long been available in mitigation where it bears directly on the subject matter.

3. Burstein v Times Newspapers Ltd [2001] 1 WLR 579 was compatible with that rule and bound the court. Its principle must be applied cautiously. Evidence qualifies where it is so clearly relevant to the subject matter of the libel, or to the claimant’s reputation or sensitivity in the relevant sector of life, that withholding it would create a real risk of damages being assessed on a false basis. The evidence need not have caused or provoked the publication, and the publisher need not have known it when publishing.

4. The principle applies to compensation following an offer to make amends. Section 3(5) of the Defamation Act 1996 requires the same principles as govern damages in defamation proceedings. A defendant may therefore rely on directly relevant evidence to prevent compensation or vindication on a false basis. Hurtful allegations which cannot be proved, or allegations advanced improperly without evidential support, may increase compensation.

5. All three categories of evidence were admissible. Attendance at fetish nights was relevant to embarrassment from an allegation of swinging. The claimant’s agency in arranging pornographic photographs was relevant to his reputation and hurt feelings. His voluntary disclosure of his marital breakdown to tabloid newspapers was relevant to the value he placed on privacy and the distress caused by further publicity.

6. The judge permissibly used a two-stage assessment under section 3(5): first identifying compensation before mitigation, then applying a discount for the correction, apology and surrounding conduct. The £15,000 starting point properly reflected the limited identification and reputational impact, the true gravity of the allegation and the claimant’s sensitivity. The 40% discount adequately accounted for the apology while recognising its delay, the publisher’s initial response and the serious allegations which were later abandoned.

• Court of Appeal (Civil Division): By [2006] EWCA Civ 540 , unanimously dismissed the claimant’s appeal and upheld the £9,000 award.
• High Court, Queen’s Bench Division: Eady J assessed compensation under section 3(5) of the Defamation Act 1996 at £9,000 after applying a 40% discount to a £15,000 starting figure. No citation for that decision is stated.