Godfrey v. Demon Internet Limited

Factual and Procedural Background

This opinion addresses the Defendant's application for leave to amend the Defence by adding particulars under paragraph 18.7 concerning instances of the Plaintiff's conduct in mitigation of damage. The Plaintiff's claim arises from an allegedly defamatory posting, which is pleaded to have injured the Plaintiff's reputation as a lecturer and teacher, causing distress and embarrassment. The Defendant seeks to introduce evidence of the Plaintiff's provocative and offensive conduct in online newsgroups, alleged to have been designed to provoke defamatory responses, thereby mitigating the damages claimed by the Plaintiff.

Legal Issues Presented

1. Whether the Defendant should be granted leave to amend the Defence to include particulars of the Plaintiff’s conduct in mitigation of damages.
2. Whether such evidence of the Plaintiff’s conduct is relevant and admissible in assessing damages for defamation.
3. The extent to which the Plaintiff’s own conduct may be taken into account in the assessment of damages in defamation claims.

Arguments of the Parties

Defendant's Arguments

• The Plaintiff’s postings were deliberately provocative, offensive, and designed to provoke insults, which he then uses as a basis for vexatious libel actions.
• The Plaintiff’s conduct is causally connected to the defamatory posting and is relevant to the quantum of damages.
• Allowing the amendment is necessary to prevent the trial judge from assessing damages without full knowledge of the Plaintiff’s conduct, which could lead to disproportionate awards.
• Precedents such as Scott v. Sampson do not preclude evidence of the Plaintiff’s conduct when used to mitigate damages rather than to establish a bad reputation.

Plaintiff's Arguments

• The approach of allowing such amendments offends accepted principles of defamation law, particularly the exclusion of evidence of the Plaintiff’s prior misconduct as explained in Scott v. Sampson.
• Evidence of particular acts of misconduct should be excluded as they give rise to interminable issues with only a remote bearing on the question of the extent of reputational damage.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the Defendant’s application to amend the Defence to include particulars of the Plaintiff’s conduct that might mitigate damages. It acknowledged the Plaintiff’s claim is for injury to reputation and feelings arising from an allegedly defamatory posting. The court accepted that the Plaintiff’s conduct, comprising numerous provocative and offensive postings, is causally connected to the defamatory matter and therefore germane to the assessment of damages.

The court distinguished the proposed amendment from impermissible attempts to prove the Plaintiff’s bad reputation generally, instead viewing it as relevant to limiting damages due to the Plaintiff’s conduct provoking the libel. The court noted the scarcity of clear authority but relied on established principles from leading cases that damages in defamation are “at large” and may be influenced by the conduct of the parties.

It referenced authoritative dicta emphasizing the importance of allowing both parties to fully present their case to ensure a fair assessment of damages. The court concluded that excluding the amendment could result in damages awards disproportionate to the true injury suffered by the Plaintiff. Consequently, the amendments were deemed relevant, admissible, and should be allowed.

Holding and Implications

The court GRANTED the Defendant’s application for leave to amend the Defence under paragraph 18.7 to include particulars of the Plaintiff’s conduct in mitigation of damage.

This decision allows the Defendant to present evidence of the Plaintiff’s provocative and offensive postings as a factor reducing the damages payable. It ensures the trial judge will have a fuller factual context to assess damages proportionately. The ruling does not establish a new precedent but applies existing principles to admit relevant mitigating conduct in defamation damages assessments.