Henry v News Group Newspapers Ltd (Rev 1)

Aggravated damages compensate for the additional injury to the claimant’s feelings caused by the defendant’s conduct. The relevant focus is the claimant’s perception and the impact on her feelings, not the defendant’s undisclosed state of mind or the quality of its journalism. A claimant may rely on her perception that the defendant knew its allegations lacked foundation, but may not obtain disclosure to prove that perception true. Any plea of malice must identify the relevant individuals and plead facts capable of supporting a rational inference of malice. Disclosure must remain tied to a pleaded and relevant issue and must not become a fishing expedition.

The claimant brought libel proceedings concerning articles published by the defendant newspaper about her involvement in the care of Peter Connelly and an alleged false record concerning Victoria Climbié. The defendant sought to strike out part of the claim for aggravated damages. The claimant sought specific disclosure of material concerning the defendant’s evidence, knowledge and information-gathering before publication. The central issues were whether the aggravated-damages plea permitted inquiry into the defendant’s state of mind and whether the requested documents were relevant and proportionate.

1. The defendant’s application to strike out the aggravated-damages plea in its entirety was refused. The claimant’s case was confined to her perception of the defendant’s conduct and the effect of that conduct on her feelings. An inquiry into the state of mind of the defendant’s journalists was excluded.
2. Aggravated damages are compensatory. They address the additional injury caused when the defendant rubs salt in the wound. The aggravating conduct must therefore have been known to the claimant. What occurred behind the scenes, without affecting her feelings, is irrelevant. The defendant’s actual evidence at publication and the quality of its journalism were not matters for the assessment of damages.
3. The claimant could plead and give evidence that she perceived, from the defendant’s conduct and publications, that it must have known there was no proper basis for the allegations, insofar as that perception caused frustration or distress. She could not use disclosure to establish that her belief was objectively true, since that risked compensating injury caused by the disclosure itself and introducing an impermissible punitive element.
4. If malice were alleged against a corporate defendant, the relevant individual or individuals would have to be identified. The pleaded facts would need to support an inference of dishonesty, recklessness or a dominant motive to injure, rather than amount to a bare or equivocal assertion. The observations concerning Telnikoff v Matusevitch and Alexander v Arts Council of Wales were accepted as valid guidance.
5. The application for specific disclosure was refused. The categories sought were either unrelated to pleaded issues, directed to the defendant’s state of mind, or impermissibly general. The request was also disproportionate and unnecessary on case-management grounds.

First-instance decision. No earlier decision or appeal is stated in the judgment.