CA-2024-001499 - [2025] EWCA Civ 1321

I start with some well-established rules of English common law.

At common law, someone who proves that a written statement about them, such as a tweet, has a defamatory tendency is entitled to recover damages for libel unless the defendant establishes an affirmative defence, such as the substantial truth of the statement. That is because the law treats the publication of such an allegation as something that requires justification by the publisher (sometimes referred to as the presumption of falsity); libel is actionable without proof of material harm; general damages are recoverable for injury to reputation and consequent distress; the claimant is, rebuttably, presumed to have a good reputation; and a statement with a defamatory tendency is, irrebuttably, presumed to cause at least some damage to that reputation.

Damages will ordinarily be assessed on the same basis. The key factors will typically be the gravity of the allegation, the scale of publication, the identity of the publishees and the position of the claimant. These factors will often be enough to justify an inference that the statement complained of not only had a defamatory tendency but also caused substantial, perhaps grave, reputational harm deserving of compensation. The claimant may in addition point to specific matters as demonstrating reputational harm, such as being shunned or avoided by friends or business associates or being subjected to abusive taunts. But it is not necessary to adduce evidence of any such matters.

The quantification of damages is not a precise science, but the award should be such as is necessary and proportionate to the pursuit of three aims: (1) vindication of the claimant’s reputation, (2) compensation for the reputational harm sustained, and (3) compensation for consequential harm to feelings. In deciding what sum is appropriate for those purposes the court will have regard to the level of general damages for pain, suffering and loss of amenity in cases of personal injury, and will treat the maximum award in that context as an effective cap on damages for defamation.

I draw these principles from the following decisions, and the cases cited within them: Barron v Vines [2016] EWHC 1226 (QB) [24], [44]-[50]; Lachaux v Independent Print Ltd [2019] UKSC 27, [2020] 2 AC 612; Sicri v Associated Newspapers Ltd [2021] 4 WLR 9, [176]-[178]; Wright v McCormack [2023] EWCA Civ 892, [2024] KB 495 [46]-[61] (“Wright v McCormack (CA)”).

A defendant may seek to rebut the presumptions I have mentioned by establishing an affirmative defence or, failing that, by proving in mitigation of damages that the claimant already had a bad reputation. Pursuit of this second course of action is however subject to some rules recently summarised by Aidan Eardley KC, sitting as a Deputy Judge of the High Court, in Bates v Rubython [2025] EWHC 2706 (KB) at [10]:

(1)

A defendant may adduce evidence that the claimant has a general bad reputation in the sector of his life to which the statement complained of relates: Scott v Sampson (1887) 8 QBD 491 at 503 (Cave J) and Gatley on Libel and Slander 13^th edn (2022), 34-081 to 34-083. Such evidence about the claimant should come from “those who know him and have had dealings with him” Plato Films Ltd v Speidel [1961] AC 1090 at 1139 (Lord Denning), repeated in Associated Newspapers Ltd v Dingle … at 412;

(2)

Evidence that there are rumours circulating to the same effect as the libel is inadmissible:Scott v Sampson at 503-504;

(3)

Evidence of other publications making the same allegation as the statement complained of is inadmissible as proof of a pre-existing bad reputation: Associated Newspapers Ltd v Dingle (and see the useful discussion of the rule in Dingle by Warby J in Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB), [2016] QB 402 at [69]-[87]);

(4)

A defendant may not adduce evidence of particular acts of misconduct by the claimant as tending to show his character and disposition; neither may they be put to him in cross-examination for that purpose: Scott v Sampson at 5-4505; Gatley 34-087 & 34-089…

To this may be added a point made by Applegarth J in Peros v Nationwide News Pty Ltd [2024] QSC 192 [162]-[163], that what may be pleaded and proved is a settled bad reputation in the community at large.

These rules do not entirely preclude reliance by the defence on third-party publications. A claimant who relies on a specific event as evidence of reputational harm bears the burden of establishing the fact and causation of the specific event relied on. The claimant does not need to show that the publication complained of was the sole or dominant cause of what happened, but he must show on the balance of probabilities that it was a material cause. This reflects the general law of causation in tort. Where a claimant pursues such a case the defendant is entitled to adduce evidence to rebut it. This may involve identifying alternative candidate causes, and these may include third-party publications about the claimant. The issue is discussed in various modern first instance decisions including Barron v Vines (above) [24], [44]-[50], Napag Trading Ltd v Gedi Gruppo Editoriale S p A [2020] EWHC 1763 (QB), [2021] EMLR 6 [55]-[57], Sicri (above) [178], Wright v McCormack [2021] EWHC 2671 (KB), [2022] EMLR 10, [149]-[167] (Julian Knowles J), and Bates v Rubython (above) [20]-[21]. In some of these cases there has been reference to a process of “isolating” the harm caused by the publication complained of. I shall need to look at this again later.

There are other ways in which a defendant may mitigate damages without offending any of the rules I have mentioned. These include reliance on matters that are directly relevant to the context in which the statement complained of was made (known as “Burstein material”, after Burstein v Times Newspapers Ltd [2001] 1 WLR 479); reliance on admissions by the claimant that he has a bad reputation; showing that the damage is partly caused by the claimant’s own conduct, such as by culpably provoking the libel (see Wright v McCormack (CA), [48]); proof that people did not believe or take seriously what was said (see Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB), [2016] QB 402, [59]); or reliance on evidence which is properly before the court on some other issue – for instance, as part of an attempt to prove the truth of the statement complained of - and which is relevant when assessing what award of damages would be appropriate (the “rule in Pamplin”, after Pamplin v Express Newspapers Ltd [1988] 1 WLR 116.). The rule in Pamplin was explained in Wright v McCormack (CA)at[55]:

The rule … does not depend on the state of the claimant’s actual reputation at the time of the libel … The underlying principle is that a claimant in a defamation case should not be awarded damages for injury to a reputation which is not deserved.

Section 1(1) of the 2013 Act was intended to and did make the claimant’s task harder. The leading authority on its meaning and effect is the decision of the Supreme Court in Lachaux v Independent Print Ltd (above). The court rejected the view of the Court of Appeal ([2017] EWCA Civ 1334, [2018] QB 594), that section 1(1) merely required a tendency to cause “serious” as opposed to “substantial” reputational harm. The Supreme Court held that the sub-section did not amend the common law but supplemented it. The statute requires a claimant to go beyond proof of a defamatory tendency and to demonstrate as a fact on the balance of probabilities that the publication complained of caused (or was likely to cause) reputational harm that was serious. It further held that the common law presumption that a statement with a defamatory tendency caused actual harm to reputation has not survived the enactment of s 1.

The court agreed, however, that it was possible to prove serious reputational harm by way of an inferential case. It upheld the decision of the High Court that the requirement was met on the facts of Lachaux on the basis of “(i) the scale of the publications; (ii) the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew Mr Lachaux and (iii) they were likely to have come to the attention of others who either knew him or would come to know him in future; and (iv) the gravity of the statements themselves” or, putting it another way, “a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities”: [21] (Lord Sumption, with whom the other Justices agreed). Subsequent cases have provided further illustrations of this point: see, for instance, Banks v Cadwalladr [2023] EWCA Civ 219, [2023] KB 524 [67]-[68].

A second important aspect of Lachaux is that the Supreme Court affirmed the concurrent decisions of the High Court and Court of Appeal that the rule in Dingle applies when assessing whether the serious harm requirement is met. As part of their case on serious harm the appellant newspaper publishers had sought to rely on other publications to the same or similar effect as the libel complained of by Mr Lachaux (see the first instance decision [2015] EWHC 2242 (QB), [2016] QB 402, [69]). The publishers argued that the rule in Dingle should not affect the factual enquiry required by s 1(1). At [22], Lord Sumption stated the rule in these terms: “a defendant cannot rely in mitigation of damages on the fact that similar defamatory statements have been published about the same claimant by other persons…” At [24], Lord Sumption rejected the publishers’ argument, saying: “Section 1 of the Act is concerned with the threshold of harm and not with the measure or mitigation of general damage. But both raise a similar question of causation. It would be irrational to apply the Dingle rule in one context but not the other ...”

The rule in Dingle has since been applied in the context of the serious harm requirement in Banks v Cadwalladr (see [2023] KB 524 [27], [58]-[60]). In Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21, [2025] AC 945 the Supreme Court, citing what Lord Sumption had said in Lachaux, reaffirmed the continued potency of the rule in Dingle as a common law principle.