Case No: 1998-G-No 30
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 23th April 1999
B e f o r e :
THE HON MR JUSTICE MORLAND
Laurence Godfrey Plaintiff
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Demon Internet Limited Defendant
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Mr Justin Rushbrooke (instructed by Bindman & Partners for the Plaintiff)
Mr Manuel Barca (instructed by Messers Olswang for the Defendants)
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"Approved by the Court for handing down (Subject to editorial corrections)"
This Judgment may be posted on the Court Service Website.
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(The Hon. Mr Justice Morland)
Mr Justice Morland:
JUDGMENT.
Mr Justice Morland:
JUDGMENT.
This judgment is confined to the Defendants' application for leave to amend
the Defence under paragraph 18.7 by adding particulars of instances of the
Plaintiff's conduct in mitigation of damage.
The basis of the Plaintiff's claim for damages is the allegedly defamatory
posting set out in divider 1 of the court bundle.
The defamatory meaning of the posting is pleaded in paragraph 10 of
the
Statement of Claim.
Paragraph 11 reads:-
"11. Further and alternatively the said allegations were calculated to
injure the Plaintiff's reputation as to his competence and fitness to
practice his profession as a lecturer and teacher carried on by him at
the time of publication"
Paragraph 12 reads:-
"12. By reason of the publication of the said words the Plaintiff has
been seriously injured in his character, credit and reputation and in
the way of his said occupation and employment and the said words have
caused he Plaintiff considerable distress and embarrassment"
Paragraph 18.7 at present un-particularised reads as follows:-
"The words complained of were posted to a newsgroup. Newsgroup users
have come to abide by an informal code of conduct known as
"netiquette", which is intended to introduce an element of restraint
and moderation with regard to the content of postings. Those who
persist in breaching netiquette are almost invariably exposed to irate
(and sometimes offensive or aggressive) postings from aggrieved users:
this practice is known as "flaming". As a regular newsgroup user, it
is to be inferred that the Plaintiff would at all material times have
known of the foregoing facts and matters. Notwithstanding, the
Plaintiff has cynically pursued the tactic of posting deliberately
provocative, offensive, obnoxious and frequently puerile comments
about other countries, their citizens and cultures; and has done so
with a view to provoking others to trade insults which he can then
claim are defamatory and seek to use as the basis for bringing
vexatious libel actions against them and against access or service
providers such as the Defendant."
An eclectic sample of the instances of conduct sought to be relied upon in
support of the general pleading in mitigation of damage in Paragraph 18.7
are set out below:-
Postings allegedly made by the Plaintiff about Thailand:-
"I thought Miss Thailand had to be a bar girl, in order to be
representative. Since the phrase "Thai girl" is synonomous [sic] with
prostitute the whole world over, it would seem most appropriate"
"There are also quite many Thai people in Hamburg, mostly female
prostitutes and Katoeys working in the Reperbann, and others
associated with the only business activity at which the Thais excel, I
believe most are members of the other DTG (Deutsche-Thailandische
Gesellsexunaschartderpunters)."
"I think the one you want is called something like
alt.binaries.pictures.erotica.orentials"
"But are not most of the Thais in Germany either prostitutes, pimps or
the owners and operators of grossly overpriced Thai restaurant?"
"Would you mind clearly labelling the photo of the mutilated vagina
with the words "mutilated vagina" or the abbreviation "M.V.", so that
readers do not simply confuse it with a mugshot of Sharman or Dawson?"
"I am frankly surprised to learn that Thai men have scrotums at all,
because they certainly don't have any balls. Have you seen them
cowering before a phu-yai or afraid to write what they think in this
newsgroup?"
"I agree that the fact that "Thai girl" is synonymous with prostitute
the world over (and please be in no doubt that it is) is hurtful, but
I suggest you complain to those who profit from the enormous
prostitution racket in Thailand and who are the cause of this, rather
than to me as the messenger. Let us be in no doubt about this -
Thailand has a very high percentage of female prostitutes per capita
in the 15-30 age group, very much higher than the norm elsewhere. The
result of this is, for example, that the sentence "he's brought a Thai
girl back with him" is synonymous with "he's brought a Thai hooker
back with him". The reason for this is that the vast majority of Thai
wives of farang are ex-prostitutes"
"The usual Thai response of hiding one's head in the sand and thereby
not noticing that shit happens does not stop shit happening".
"It is obvious that Thai women are stupid, uneducated, and
prostitution is their only means of making a living"
Postings allegedly made by the Plaintiff about Canada:-
"...Toronto...next to Ottawa is the most boring city in the most
boring country in the world. As for importing criminal immigrants,
instead of complaining I think you Canadians should be grateful for
any immigrants you can get. Frankly, I think it's extraordinary that
you are able to persuade anyone to go to live in Canada. I assume
these people have either been misinformed, or like so many Canadian
immigrants, have been unable to get into any other country and have
ended up in Canada as their last resort"
"Judging by your post, and knowing your awful country as I do, I
should think that after finding out what Canada is really like they
too would be much happier had they not gone to live there."
"Does Canada deport people for being ‘arseholes'? It hardly seems
credible, as most of Canada's population would now be living
elsewhere."
"A Canadian is a bigoted, boring, uneducated, apathetic, untalented
individual, rightly suffering from a massive inferiority complex about
being Canadian."
"I suspend my manners when dealing with Canadians. Moreover I am quite
entitled to re-post any racist garbage I receive by e-mail from
Canadians, or anything else I wish to post"
Postings allegedly made by the Plaintiff about Germany:-
"Last week we encountered a whole gaggle of them in our favourite Thai
restaurant and I spent considerable time trying to persuade the
proprietress to poison their food (in Thai, of course).
I always go out of my way to be as rude as possible to German tourists
when I encounter them in public places (I want them to feel as
uncomfortable and unwelcome here as they made me feel in their country
when I lived there), and I find this is usually rather easy for me as
German travellers tend to behave in an aggressive [sic] arrogant and
superior way. "
For completeness sake I set out Paragraph 18.7.4 to which the Plaintiff
makes no objection:-
"18.7.4 As he himself has boasted (see 18.8.2.30 above), the Plaintiff
has made a practice of bringing libel actions in England against
newsgroup users and access or service providers. The Defendant will
refer to and rely on the following actions at trial:
18.7.4.1 1997-G-No. 1036 against Toronto Star Newspapers Limited and
Ken Campbell (in relation to a message alleged to have been posted to
"soc.culture.canada" on 11 September 1994);
18.7.4.2 1997-G-1070 against Melbourne PC Users Group Inc and Donald
Victor Adam Joiner (in relation to messages alleged to have been
posted to "sct");
18.7.4.3 1997-G-No.1071 against Telecom New Zealand and Suradej
Panchavinin (in relation to a message alleged to have been posted to
"sct");
18.7.4.4 1997-G-No 1187 against the University of Minnesota, Starnet
Communications Inc. and Kritchai Quancharut (in relation to a message
alleged to have been posted to "sct");
18.7.4.5 1997-G-No 1188 against Cornell University and Michael Dolenga
(relating to messages alleged to have been posted to
"soc.culture.canada");
18.7.4.6 1998-G- No 2819 against Phillip Hallam-Baker.
If and insofar as may be appropriate, the Defendant will also rely on
section 12 of the Defamation Act 1952"
Untrammelled by authority I would have no hesitation in allowing the
proposed amendment. If I did not the Judge would be assessing damages in
blinkers. The Plaintiff is claiming damages for injury to his reputation as
a University Lecturer and as a private person and ancillary to that damages
for injury to his feelings.
In my judgment there is material upon which the Defendants can assert that
the action is not brought bona fide for purpose of vindicating the
Plaintiff's reputation and recovering compensation for true injury to his
reputation and feelings.
Although I appreciate that the sample of the postings which I have set out
is eclectic and some eighty postings are pleaded which themselves according
to Mr Rushbrooke are only a small proportion of over three thousand
postings made by the Plaintiff, it could well be submitted that these
postings are puerile, unseemly and provocative. In effect they invite
vulgar and abusive response. As Mr Barca put it these posting are designed
to tempt people to overstep the mark and defame the Plaintiff so that he
can sue.
If I do not allow the amendments sought there is a real danger that the
Trial Judge (by agreement trial is by Judge alone) might award damages
which were not rightly proportionate to the true injury suffered by the
Plaintiff.
Although Mackenzie .v. Business Magazines (U.K.) Ltd (C.A. 18th January
1996) was a case of amending to plead justification the words of Kennedy
L.J. at page 12 are apposite:-
"In my judgment it is particularly important in an action of this type
that both sides should, if at all possible, be allowed to deploy their
case as they wish. The Plaintiff seeks to vindicate his reputation. It
would be a poor form of vindication if it were only obtained by half
muzzling the other side"
See also Basham .v. Gregory (C.A. 21 February 1996) per Sir Thomas Bingham
M.R. at page 10:-
"The Plaintiff brings this action to vindicate his reputation, no
doubt hoping that the jury will accept that he has been seriously
libelled and award him damages appropriately. There must, I think, be
a serious question as to how valuable a vindication is if it is one
against a Defendant who is not able to advance the defence he would
wish."
But Mr Rushbrooke submitted that this approach which seems to me to be both
fair and rational offends against the accepted principles of the Law of
Defamation. He referred me to the well-known dicta of Cave J. in Scott .v.
Sampson [1882] 8 Q.B.D. 491 at page 505 explaining why evidence of
particular acts of misconduct on the part of the Plaintiff tending to show
his character and disposition should be excluded where he said:-
"Both principle and authority seems equally against its admission...It
would give rise to interminable issues which would have but a very
remote bearing on the question in dispute, which is to what extent the
reputation which he actually possesses has been damaged by the
defamatory matter complained of"
(See also Hobbs .v. Tinling [1929] 2K.B. 1 per Scrutton L.J. at page
18, and Greer L.J. at page 43)."
I accept the argument of Mr Barca that the proposed amendments do not
offend the principle in Scott .v. Sampson. They are not introduced to
establish that the Plaintiff should not be awarded damages because he has a
bad or undeserved reputation but to establish that the Plaintiff should
only receive derisory or small damages because of his bad conduct which is
causally connected to the libel sued upon. In my judgment the Plaintiff's
postings are germane to the defamatory posting the subject of his claim.
There is a paucity of authority as to the extent to which the Plaintiff's
own conduct is relevant in the assessment of damages.
In Gatley (9th edition) there appears Paragraph 33.44:-
"The conduct of the Plaintiff is a factor that a jury can take into
account when assessing damages. But "conduct" in this context does not
encompass the general behaviour of the plaintiff; it relates
principally to activities that can be causally connected to the
publication of the libel of which the plaintiff complains, though it
might include more broadly provocative actions by the plaintiff."
Support for this passage is said to be derived, but in my opinion very
obliquely and non-specifically, from dicta of Lord Radcliffe in Dingle .v.
Associated Newspapers [1964] A.C. 371 at page 395 where he said:-
"Damages for Defamation are an expression of many contributing
factors, and, as we know, they can be affected one way or another by a
defendant's conduct, by his pleadings, by his counsel's handling of
his case, just as, occasionally, even a plaintiff may find his damages
affected by the way that he has behaved."
and from dicta of Lord Hailsham L.C. in Broome .v. Cassell & Co [1972] A.C.
1027 at page 1071 where he said
"The bad conduct of the Plaintiff himself may also enter into the
matter, where he has provoked the libel, or where perhaps he has
libelled the defendant in reply. What is awarded is thus a figure
which cannot be arrived at by any purely objective computation. This
is what is meant when the damages in defamation are described as being
"at large""
In Kelly .v. Sherlock [1866] L.R. 1Q.B. 686 the facts were:-
"that the plaintiff has preached, on the 8th of November, a sermon
against the appointment of a Roman Catholic chaplain to the Liverpool
borough gaol, and another sermon on the succeeding Sunday reflecting
in strong terms on the conduct of the town council of Liverpool
electing a Jew their mayor, and had caused extracts from both sermons
to be published in the local newspapers"
at page 698 Blackburn J. said:-
"Now there can be no set-off of libel or misconduct against another,
but in estimating the compensation for the plaintiffs injured
feelings, the jury might fairly consider the plaintiff's conduct and
the degree of respect which the plaintiff himself had shown for the
feelings of others; and finding on the evidence, that he published in
the local press sermons reflecting on the local authorities that he
published a statement (which I own I think borne out by the articles)
that the defendant's paper was so conducted as to justify the epithet
of "the dregs of provincial journalism," and, above all, that he
delivered from the pulpit, and published in the provincial papers, a
statement to the effect that some of his opponents (no matter, in my
opinion, whether including the defendant or not) had been guilty of
subornation of perjury, and would, as he charitably hoped, repent on
their deathbeds and confess their guilt, I cannot say that I think the
jury were bound to give him substantial damages, though I heartily
wish that their verdict had not been such as to give an appearance of
triumph to the defendant"
Kelly .v. Sherlock was subject to criticism in Judd .v. Sun Newspapers
[1930] 30 State Reports New South Wales or at least considered to be of
limited validity (see the judgments of Harvey C.J. at page 299 James J. at
page 303 and Halse Rogers J. at page 313)
The situation in Judd's case was most unusual
"At the trial the plaintiff was put in the box as a witness but not
asked any questions by his counsel, nor did he give any evidence in
chief; he was, however, cross-examined by counsel for the defendants,
at great length, not only in regard to matters material to the facts
alleged in the article complained of, but also as to his use of
violent, abusive, and insulting language in regard to other persons
entirely distinct from matters at issue between the parties"
In my judgment the judgments of Harvey C.J. and Halse Rogers J. do not
assist the Plaintiff.
Harvey C.J. said at page 299:-
"Damages which a jury may award a plaintiff may possibly be increased
by the outrageous nature of the language in which the libel is
couched, or lessened by the provocative conduct or language of the
plaintiff, just as damages may be aggravated by the way in which the
defendant has conducted his case in the Court.
In my humble judgment, those elements of damage are hard to justify on
principle, but have been sanctioned by usage, and as an indulgence to
what is called the practical common sense of juries."
Halse Rogers J. said at page 311:-
"Where the language complained of in the action has been provoked by
the language of the plaintiff, and relates to the same subject matter,
there is sound reason for admitting evidence of all the circumstances
in which the libel was published, and for inviting the jury to
consider the conduct of the plaintiff on the question of damages"
In my judgement the amendments to the Defence sought should be allowed.
They are relevant and admissible to establish the Defendants' case as
pleaded in Paragraph 18.7 of the Defence.