Aggravated, Exemplary and Restitutionary ... - Law Commission

1.96 These questions were recently considered by the Court of Appeal in John v Mirror
Group Newspapers Ltd, 326
in an action for defamation brought against a newspaper
publisher. It was said that:
[B]efore [exemplary] damages can be awarded the jury must be
satisfied that the publisher had no genuine belief in the truth of what
he published. The publisher must have suspected that the words were
untrue and have deliberately refrained from taking obvious steps
which, if taken, would have turned suspicion into certainty ...
Secondly, the publisher must have acted in the hope or expectation of
material gain. It is well established that a publisher need not be shown
to have made any precise or arithmetical calculation. But his unlawful
conduct must have been motivated by mercenary considerations, the
belief that he would be better off financially if he violated the plaintiff’s
rights than if he did not, and mere publication of a newspaper for
profit is not enough. 327
1.97 Exemplary damages are in fact seldom sought in libel actions. This is for several
reasons. First, it is difficult, in the context of defamation by the press, to prove
that a defendant calculated that a particular libel was likely to boost sales of the
publication. Secondly, a plaintiff pleading exemplary damages will bear the
burden of such proof. This effectively reverses the burden of proof in defamation
actions, so that there is a tactical disadvantage in seeking exemplary damages.
Thirdly, practitioners may often perceive a punitive element in awards of
(supposedly compensatory) ‘aggravated damages’ by juries in defamation actions;
they therefore feel that little is to be gained by claiming exemplary damages in
addition. 328
1.98 However, the effect of John v MGN Ltd 329
may be that exemplary damages will be
more often sought in the future in defamation actions. In that case the Court of
Appeal held for the first time that a jury should be referred to the scale of
compensatory damages for pain, suffering and loss of amenity awarded for
personal injury. 330
Potential plaintiffs will therefore be faced with the prospect of a
reduced compensatory award, and so may well seek to supplement such awards by
pleading exemplary damages in addition.
1.99 In the past, most cases in category 2 have related to wrongful evictions of tenants,
typically in circumstances of harassment, 331
in order to free the property for more
profitable use. 332
In contrast to defamation, however, this type of case has not
326 [1997] QB 586.
327 [1997] QB 586, 618G-619A.
328 This was the view of some leading libel silks to whom we have spoken.
329 [1997] QB 586.
330 See further paras 4.91-4.93 below.
331 Such conduct also usually gives rise to an award of aggravated damages; see Part II above,
and para 2.6.
332 See Drane v Evangelou [1978] 1 WLR 455, which has led to many subsequent awards of
exemplary damages in housing cases. In Broome v Cassell [1972] AC 1027, 1079E-F, Lord
Hailsham indicated that the unlawful eviction of a tenant by harassment was a prime
example of a case falling within category 2.
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