Libel – Defamation Act 2013 – serious harm – mitigation of damage – pleading
The Claimant, the founder of the Islam Channel, sued for libel over an article written by the Second Defendant and published on a website operated by the First Defendant. An application by the C to strike out parts of the Defence led to the withdrawal of pleaded defences of truth and statutory qualified privilege. The Ds served a draft amended Defence relying on a number of matters in relation to serious harm and mitigation of damage, including allegations of other misconduct, matters included in the article but not complained of and relevant background context.
Whether the parts of the Defence not withdrawn should be struck out and whether permission should be given for the draft amended Defence.
Insofar as not conceded the parts of the Defence subject to the C’s application were struck out and permission was refused for the draft amendments.
This case demonstrates that matters which traditionally entered libel claims at the stage of mitigation of damage, such as pleas of general bad reputation or Burstein particulars of relevant background context, can now, in appropriate circumstances be relied on by a defendant in response to a claimant’s case on serious harm under Defamation Act 2013 s.1. However, if that is to be done, then the traditional limits on such pleas, such as the rule in Scott v Sampson, continue to apply.
