Lord McAlpine and section 12

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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