Reference:  EWHC 116 (QB)
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 29 Jan 2008
Summary: Defamation - Libel – Qualified privilege – Meaning – Damages –Assessment of damages
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Instructing Solicitors: Stevens for the Claimant; Thompsons for the Defendant
C sought libel damages from D, ASLEF trade union general secretary, over three separate claims contained in a circular sent to the 18,000 members of the union and subsequently published in the union’s magazine and on its website. There had been a history of disagreement between C and trade union officers: libel claims brought by the officers over remarks posted on a website operated by C had been settled, C undertaking to close the website permanently and the officers agreeing to contribute to C’s legal fees. The words complained of in the present action related to C, his website and the settled claims. C complained that the circular suggested he was guilty of disreputable conduct and that he was untruthful, that his behaviour had led to the breakdown of his marriage and the loss of contact with his children, and thirdly that he had committed a breach of confidence by delivering to D a list of those involved with his website.
(1) Whether the words contained the meanings contended for by C;
(2) Whether the defence of qualified privilege covered publications to persons other than ASLEF members;
(3) If the answer to (2) was ‘no’, what amount should be awarded in damages
(1) The court found that the first two passages complained of bore C’s contended meanings but that the third passage did not expressly allege a breach of confidence as only an unduly suspicious reader would conclude that the words conveyed such a breach.
(2) Qualified privilege applied to the first passage insofar as it was published to members of the union, but could not be relied upon as a defence with respect to other subscribers of the union magazine, who could not be shown to have any interest in the affairs of the union over and above that of any ordinary member of the public.
(3) With regard to damages, it was noted that C’s evidence relating to the accuracy of the allegations was unchallenged. However, his initial website postings were unnecessarily provocative and offensive, led to the publication of the statements complained of and demonstrated what C regarded as an acceptable level of debate. In the light of C’s own conduct an award of £7,500 was appropriate.
This case is noteworthy for the court’s application of the rule established in Burstein v Times Newspapers Ltd. Tugendhat J halved the damages on the basis that, had the words complained of not been preceded and provoked by the Claimant’s publication, he would have found an appropriate remedy.