Facts Relevant to the Assessment of Damages in Defamation: Turner v News Group Newspapers Ltd
| Date | 01 May 2007 |
| Author | Roderick Bagshaw |
| DOI | 10.1350/ijep.2007.11.2.134 |
| Published date | 01 May 2007 |
| Subject Matter | Case Note |
FACTS RELEVANT TO THE ASSESSMENT OF DAMAGES IN DEFAMATION
CASE NOTE
Facts relevant to the assessment of
damages in defamation: Turner v
News Group Newspapers Ltd
By Roderick Bagshaw*
Tutor and Fellow in Law, Magdalen College, Oxford
urner v News Group Newspapers Ltd1 concerned an article published in the
defendant’s newspaper which portrayed the claimant as someone who
T hadbeen‘involvedinatwilightworldofswingersandwife-swapping’
and had pressurised his wife into having sex with other men.2 In order to reduce
the measure of damages payable for this libel the defendant was permitted by
Eady J to introduce evidence that: (a) the claimant and his wife had been members
of a private members’ club, which was said to advertise itself as ‘the Midlands
Leading Fetish, BDSM and Swingers Club’,3 and had attended ‘fetish nights’ on
four or five occasions; (b) the claimant had been his wife’s agent in arranging for
her to be professionally photographed in pornographic poses for publication; (c)
the claimant had publicised the failure of his marriage in the press, providing a
photograph of his wife topless and an interview which called for her deportation.
The correctness of that decision on admissibility then became an issue on appeal.
English defamation law accepts that it is wrong to award the same measure of
damages for a false allegation of fraud to a ‘reputed thief’ and a ‘most honourable
merchant’.4 But evidence of discreditable behaviour is not generally admissible to
*
Email roderick.bagshaw@magd.ox.ac.uk.
1
[2006] EWCA Civ 540, [2006] 1 WLR 3469, CA.
2
The particulars of claim identified these as among the natural and ordinary meanings of the words
of which complaint was made.
3
BDSM is an abbreviation of ‘bondage and discipline, dominance and submission, sadism and
masochism’.
4
Scott v Sampson (1882) 8 QBD 491 at 503, per Cave J, quoting from Starkie on Evidence.
134
(2007) 11 E&P 134–138
E & P
FACTS RELEVANT TO THE ASSESSMENT OF DAMAGES IN DEFAMATION
reduce a successful claimant’s damages.5 One element in the justification for this
restriction is that evidence of the claimant’s low reputation is admissible.6 This
means that if the claimant is generally thought to be ‘the most abandoned prosti-
tute’ this ‘reputation’ can be proved to reduce the measure of damages for a false
allegation of an adulterous affair, and it is unnecessary to admit evidence of
specific acts of prostitution. But evidence of discreditable behaviour does not
always duplicate evidence of general reputation: the community which bestows a
‘reputation’ may be unaware of the misconduct.7 Thus the restriction also draws
strength from the further argument that it is unfair to require a claimant to
challenge and qualify a series of allegations of misconduct beyond the...
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