Godfrey v Demon Internet Ltd
Reference:  EWHC QB 240;  4 All ER 342
Court: Queen's Bench Division
Judge: Morland J
Date of judgment: 23 Apr 1999
Summary: Defamation - Libel - Damages - Evidence in mitigation of damages
Justin Rushbrooke QC (Claimant)
Instructing Solicitors: Bindman & Partners for the Claimant
P sued D, an Internet Service Provider, over a newsgroup posting made available from D’s newsgroup servers in this jurisdiction. D sought permission to amend its defence to rely, in mitigation of damages, on numerous allegedly provocative postings previously made by P, including to other newsgroups apart from that in which the posting complained of appeared. P resisted the amendment on the ground that it offended against the rule in Scott v Sampson (1882) 8 Q.B.D 491 as bringing in inadmissible evidence of particular acts of misconduct on the part of the P.
Whether the amendments should be permitted.
The amendments should be permitted. The other postings were relevant and admissible in support of D’s case that the action was not brought bona fide, but as part of a cynical practice by P of provoking people into overstepping the mark so that he could then bring vexatious libel actions against them. They were ‘introduced to establish that the Plaintiff should only receive derisory or small damages because of his bad conduct which is causally connected to the libel sued upon. In my judgment the Plaintiff’s postings are germane to the defamatory posting the subject of his claim.’
It is not entirely clear how the previous postings were ‘germane’ unless it be by way of similar fact evidence. Many of the postings were very old and made in different newsgroups, and there was no causal nexus pleaded between them and any particular libel previously sued on. By way of interesting postscript, at a PTR shortly before trial, Eady J in the exercise of his case management powers refused to allow D to rely on any posting made before a certain date. In Burstein v Times Newspapers Ltd  WLR 579 at para  May LJ described the decision as being ‘based on causative provocation in exceptional circumstances’.