Burstein v Times Newspapers Ltd

Reference: [2000] EWCA Civ 338; [2001] 1 WLR 579; [2001] EMLR 364

Court: Court of Appeal

Judge: Aldous, May LJJ & Sir Christopher Slade

Date of judgment: 20 Dec 2000

Summary: Defamation - Libel - Damages - Evidence in mitigation of damages - rule in Scott v Sampson - Summary disposal under s.8 Defamation Act 1996

Appearances: Justin Rushbrooke KC (Defendant) 

Instructing Solicitors: Alastair Brett for the Defendant


C, a composer of modern romantic music, sued on a diary piece published in The Times alleging that he ‘used to organise bands of hecklers to go about wrecking performances of modern atonal music, particularly anything by Harrison Birtwhistle’. At trial C applied to strike out various particulars pleaded in mitigation of damages relating to his activities as co-founder of ‘The Hecklers’, which included a notorious occasion of booing at the end of a performance of Birtwhistle’s ‘Gawain’ at the Royal Opera House. D applied for summary disposal of the claim under s.8 of the 1996 Act on the ground that the damages should be limited to £10,000. The judge acceded to C’s application and refused D’s. The jury awarded £8,000. D appealed, arguing that the judge should not have struck out the particulars in purported mitigation of damages.


Whether or not the particulars should have been struck out as offending against the rule in Scott v Sampson (1882) 8 Q.B.D 491.


Some of the particulars should not have been struck out. The jury had been left to assess damages in blinkers. The particulars were admissible as facts directly relevant to the context in which the defamatory publication had come to be made. The admissibility of such matters, though properly characterised as an issue of law, was heavily affected by questions of procedural fairness and case management. In the event, however, the jury’s award would stand as the Court was not persuaded that it would have been any lower if the material had not been excluded. Nor was the judge’s decision not to order a summary disposal wrong.


Now considered something of a landmark in the law of libel, at least by defendant practitioners, the decision is easier to cite than to apply. What exactly amounts to ‘background context directly relevant to the damage which the claimant claims has been caused by the defamatory publication’ will often be difficult to determine in other cases. On one view the ratio sits uneasily with the distinction, clearly made in Plato Films v Spiedel, between evidence relating to the reputation the claimant has and evidence relating to the reputation he deserves.