Henry v News Group Newspapers Ltd (No 3)
Reference:  EWHC 1058 (QB)
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 20 Apr 2011
Summary: Defamation - aggravated damages - malice - disclosure - case management
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Adam Wolanski QC (Defendant)
Instructing Solicitors: Taylor Hampton for the Claimant; Farrer & Co for the Defendant
C, a social worker employed by Haringey Council, sued D for libel in 35 articles accusing her of wrongdoing in connection with the Baby P and Victoria Climbie cases. The sole defence advanced was justification. C claimed aggravated damages on the grounds, among others, that she had been hurt by the knowledge that D had published in a recklessly irresponsible way, knowing that it had no sound evidence to support what it alleged. C applied for specific disclosure of documents relevant to D’s state of knowledge. D cross-applied to strike out this aspect of the aggravated damages claim. D argued that D’s case involved an inadequately particularised charge of malice; that D’s state of mind was irrelevant in any event; and that the plea should be ruled out on case management grounds.
(1) Should C’s aggravated damages plea be struck out?
(2) Was C entitled to the specific disclosure sought?
(1) The aggravated damages plea should be struck out in so far as it alleged recklessly irresponsible conduct as a fact, rather than that C had suffered hurt feelings because of her belief that D had acted in such a way. There was merit in all three of D’s grounds of objection, but the main point was that aggravated damages are for hurt feelings and it is immaterial whether or not a claimant’s belief is correct as a matter of fact. ‘What the eye does not see …’ The House of Lords and Court of Appeal authority relied on by C was not inconsistent with this principle.
(2) Accordingly, the specific disclosure application should be dismissed. The disclosure sought was not relevant to any matter which was properly in issue between the parties.
A useful reminder of the irrelevance of enquiries into the quality of a defendant’s journalism, when the sole issue on liability is the truth or otherwise of the allegations complained of. Even if aggravated damages are sought on the basis that the claimant’s feelings were injured by a perception that the defendant was reckless, or the like, it will not generally be relevant to enquire into the actual state of the defendant’s mind. The Judge referred to s 35 of the New South Wales Defamation Act as representing English law. It provides that the court should disregard the defendant’s malice or other state of mind except to the extent it affects the harm sustained by the claimant.