Today came the news that Lord McAlpine has accepted damages of £185,000 from the BBC in respect of the Newsnight fiasco.
The excellent media law blog INFORRM has said that this seems a generous payment in the circumstances, and for the reasons they give, I think they must be right.
But at the end of the INFORRM post there is a fascinating reference to a rarely used statutory provisionwhich may become relevant if Lord McAlpine proceeds to threaten libel claims against tweeters who expressly or implicitly connected him with the Newsnight allegations.
Section 12 of the Defamation Act 1952 provides:
Evidence of other damages recovered by plaintiff.
In any action for libel or slander the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication.
What this means in plain English is that a claimant who has already recovered substantial damages from one defendant for a libel will not find it straightforward to recover damages from another defendant for the same libel.
This is not a defence to liability to libel: section 12 assumes either the libel has been admitted or proven in court. It instead goes to the amount of damages. However, if the BBC payment is, as INFORRM suggests, a high amount in the circumstances, then it may well be open to other defendants to use the BBC payment as mitigation for the damages which otherwise could be awarded.
There are “ifs” here; and it may well be that no tweeter defendant can successfully invoke section 12. But the INFORRM reminder of this provision is interesting for tweeters to note at this stage of the threatened litigation.
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5 Responses to Lord McAlpine and section 12
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So it’s hard to recover further damages, since “the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded”.
Possible snag: BBC’s libel was not, arguably, a matter of “words to the same effect” as the libels of the tweeters.
BBC said, “there’s a senior Tory paedophile, linked to Thatcher”. Chorus of tweeter “It’s McAlpine, I tell you!”
I’m not sure I’d like to argue these are words to the same effect.
Readers may be interested in this case which dealt specifically with over compensation for libel and suing vast numbers of people. It is very relevant to any potential defendants and I hope something that their legal advisors look carefully at before advising them to settle. In my view over compensation and context are the two important points for defendant solicitors in this type of case. Also the threats made in the media and demands to respond to letters of claim within 48 hours will not be looked upon favourably by the judge (similar behaviour covered in judgement below).
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2008/1797.html&query=smith+and+v+and+advfn&method=boolean
This was a case where a tennis player succeeded in getting settlements from dozens of media corporations and people for alleged libel. The cases were all settled before court by lawyers acting on behalf of BBC and numerous other media corporations a few years ago. It was a very weak case and you have to wonder about their lawyers settling it.
The Telegragh stood up to the claimant and won easily and the articles complained of were considered justification (the truth). Both cases are good examples of what happens when you cave in under intimidation and what happens when you stand your ground.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2010/924.html&query=dee+and+v+and+the+and+telegraph&method=boolean
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I’ve read the libel laws and interpretations again and again, and I’m not convinced that there was any actual libel in the sense that appears to be commonly understood.
People tend to assume that lawyers and judges always know what they are talking about, but frequently they don’t – decisions that stand have no logical or rational basis in the letter or spirit of a given law, yet who can question a judge?
No broadcaster appears to have broadcasted a name; the only possibility is that the defamation took place with the child abuse victim as the the required third party, to whom some members of staff may or may not have disclosed a name either verbally or in writing.
Certainly, showing a list of names in the context of a discussion, and asking “will you be talking to any of these people”, might possibly, at a stretch fall within the “assocation” parts of defamation – but it seems pretty tenuous, and you’ve got to wonder whether any of the other names on that list took advice or not.
The “why is such and such” trending, might also fall within this tenuous associative aspect.
In the final analysis, it seems to me that the person in question, implicated themselves in the matter by publically going for people with his lawyer… I sincerly doubt whether any defamation case would have achieved much, if any, success, and it seems he played chicken with the supposed defamers, and won.
From this perspective, the huge payouts from the public purse via the BBC, seem to be unwarranted, and unjustifiable. However, the damage to the Newsnight programme and the BBC itself is probably more significant than that to either ITV and it’s programme, or the supposed injured party.