The High Court has made it clear that putting up a “proper defence” to libel actions should not be taken into account when courts are deciding whether to award aggravated damages.
“Any other approach would be an impermissible interference with the vital right of the free press to defend itself, and would therefore be wrong,” Mr Justice Dingemans said.
Dingemans J was responding to arguments by a claimant’s counsel that he should be “compensated for distress and injury to feelings caused by persistence in a defence of justification” by the award of aggravated damages.
Ruling that “proper defence of an action is not to be taken into account in aggravation of damages”, the judge said he believed this conclusion was consistent with an earlier decision of the High Court of Australia, and Lord Neuberger’s comments in a Hong Kong Court of Final Appeal case two years ago.
In Blakeney Williams v Cathay Pacific Airways  HKCFA 61, Lord Neuberger said it would be wrong to award aggravated damages in a defamation case “solely because the defendant has decided in good faith to raise a defence of justification, which is then run in a reasonable way”.
Lord Neuberger said that even the fact that a defence was regarded by the court as “not merely wrong but weak” did not bring aggravated damages into play.
Mr Justice Dingemans said that although the two Commonwealth cases were persuasive rather than binding on him, “in my judgment they are consistent with the approach of the common law, which provides that everyone has a fair right to defend themselves”.
He went on: “In this case the absence of an apology, and the continued defence of proceedings, is relevant only to the extent that there was not mitigation of damage.”
The High Court heard in Garcia v Associated Newspapers  EWHC 3137 (QB) that the Daily Mail and Mail Online published an articles stating that a man had been reported by his doctor to the DVLA because for alcohol problems.
It was claimed that as a result the man, Kevin Jones, had lost his driving licenses and his job. The doctor claimed that Mr Jones’s version of events was false.
Ruling that it was not “wrong and inappropriate” for Dr Serrano to write to the DVLA, and rejecting Associated Newspapers’ defence of justification, Dingemans J awarded the doctor £45,000 in damages.