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Cite as: [1999] EWHC QB 240

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Godfrey v. Demon Internet Limited [1999] EWHC QB 240 (23rd April, 1999)

Case No: 1998-G-No 30

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23th April 1999

B e f o r e :

THE HON MR JUSTICE MORLAND

 

 

Laurence Godfrey

Plaintiff

 

- and -

 
 

Demon Internet Limited

Defendant

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Mr Justin Rushbrooke (instructed by Bindman & Partners for the Plaintiff)
Mr Manuel Barca
(instructed by Messers Olswang for the Defendants)

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"Approved by the Court for handing down (Subject to editorial corrections)"

This Judgment may be posted on the Court Service Website.

. . . . . . . . . . . . . . . . . . . . . . . . .

(The Hon. Mr Justice Morland)

 

Mr Justice Morland:

JUDGMENT.

Mr Justice Morland:

JUDGMENT.

1. This judgment is confined to the Defendants' application for leave to amend the Defence under paragraph 18.7 by adding particulars of instances of the Plaintiff's conduct in mitigation of damage.

2. The basis of the Plaintiff's claim for damages is the allegedly defamatory posting set out in divider 1 of the court bundle.

3. The defamatory meaning of the posting is pleaded in paragraph 10 of the

4. Statement of Claim.

5. Paragraph 11 reads:-

"11. Further and alternatively the said allegations were calculated to injure the Plaintiff's reputation as to his competence and fitness to practice his profession as a lecturer and teacher carried on by him at the time of publication"

6. Paragraph 12 reads:-

"12. By reason of the publication of the said words the Plaintiff has been seriously injured in his character, credit and reputation and in the way of his said occupation and employment and the said words have caused he Plaintiff considerable distress and embarrassment"

7. Paragraph 18.7 at present un-particularised reads as follows:-

"The words complained of were posted to a newsgroup. Newsgroup users have come to abide by an informal code of conduct known as "netiquette", which is intended to introduce an element of restraint and moderation with regard to the content of postings. Those who persist in breaching netiquette are almost invariably exposed to irate (and sometimes offensive or aggressive) postings from aggrieved users: this practice is known as "flaming". As a regular newsgroup user, it is to be inferred that the Plaintiff would at all material times have known of the foregoing facts and matters. Notwithstanding, the Plaintiff has cynically pursued the tactic of posting deliberately provocative, offensive, obnoxious and frequently puerile comments about other countries, their citizens and cultures; and has done so with a view to provoking others to trade insults which he can then claim are defamatory and seek to use as the basis for bringing vexatious libel actions against them and against access or service providers such as the Defendant."

8. An eclectic sample of the instances of conduct sought to be relied upon in support of the general pleading in mitigation of damage in Paragraph 18.7 are set out below:-

9. Postings allegedly made by the Plaintiff about Thailand:-

"I thought Miss Thailand had to be a bar girl, in order to be representative. Since the phrase "Thai girl" is synonomous [sic] with prostitute the whole world over, it would seem most appropriate"

"There are also quite many Thai people in Hamburg, mostly female prostitutes and Katoeys working in the Reperbann, and others associated with the only business activity at which the Thais excel, I believe most are members of the other DTG (Deutsche-Thailandische Gesellsexunaschartderpunters)."

"I think the one you want is called something like alt.binaries.pictures.erotica.orentials"

"But are not most of the Thais in Germany either prostitutes, pimps or the owners and operators of grossly overpriced Thai restaurant?"

"Would you mind clearly labelling the photo of the mutilated vagina with the words "mutilated vagina" or the abbreviation "M.V.", so that readers do not simply confuse it with a mugshot of Sharman or Dawson?"

"I am frankly surprised to learn that Thai men have scrotums at all, because they certainly don't have any balls. Have you seen them cowering before a phu-yai or afraid to write what they think in this newsgroup?"

"I agree that the fact that "Thai girl" is synonymous with prostitute the world over (and please be in no doubt that it is) is hurtful, but I suggest you complain to those who profit from the enormous prostitution racket in Thailand and who are the cause of this, rather than to me as the messenger. Let us be in no doubt about this - Thailand has a very high percentage of female prostitutes per capita in the 15-30 age group, very much higher than the norm elsewhere. The result of this is, for example, that the sentence "he's brought a Thai girl back with him" is synonymous with "he's brought a Thai hooker back with him". The reason for this is that the vast majority of Thai wives of farang are ex-prostitutes"

"The usual Thai response of hiding one's head in the sand and thereby not noticing that shit happens does not stop shit happening".

"It is obvious that Thai women are stupid, uneducated, and prostitution is their only means of making a living"

10. Postings allegedly made by the Plaintiff about Canada:-

"...Toronto...next to Ottawa is the most boring city in the most boring country in the world. As for importing criminal immigrants, instead of complaining I think you Canadians should be grateful for any immigrants you can get. Frankly, I think it's extraordinary that you are able to persuade anyone to go to live in Canada. I assume these people have either been misinformed, or like so many Canadian immigrants, have been unable to get into any other country and have ended up in Canada as their last resort"

"Judging by your post, and knowing your awful country as I do, I should think that after finding out what Canada is really like they too would be much happier had they not gone to live there."

"Does Canada deport people for being Ďarseholes'? It hardly seems credible, as most of Canada's population would now be living elsewhere."

"A Canadian is a bigoted, boring, uneducated, apathetic, untalented individual, rightly suffering from a massive inferiority complex about being Canadian."

"I suspend my manners when dealing with Canadians. Moreover I am quite entitled to re-post any racist garbage I receive by e-mail from Canadians, or anything else I wish to post"

11. Postings allegedly made by the Plaintiff about Germany:-

"Last week we encountered a whole gaggle of them in our favourite Thai restaurant and I spent considerable time trying to persuade the proprietress to poison their food (in Thai, of course).

I always go out of my way to be as rude as possible to German tourists when I encounter them in public places (I want them to feel as uncomfortable and unwelcome here as they made me feel in their country when I lived there), and I find this is usually rather easy for me as German travellers tend to behave in an aggressive [sic] arrogant and superior way. "

12. For completeness sake I set out Paragraph 18.7.4 to which the Plaintiff makes no objection:-

"18.7.4 As he himself has boasted (see 18.8.2.30 above), the Plaintiff has made a practice of bringing libel actions in England against newsgroup users and access or service providers. The Defendant will refer to and rely on the following actions at trial:

18.7.4.1 1997-G-No. 1036 against Toronto Star Newspapers Limited and Ken Campbell (in relation to a message alleged to have been posted to "soc.culture.canada" on 11 September 1994);

18.7.4.2 1997-G-1070 against Melbourne PC Users Group Inc and Donald Victor Adam Joiner (in relation to messages alleged to have been posted to "sct");

18.7.4.3 1997-G-No.1071 against Telecom New Zealand and Suradej Panchavinin (in relation to a message alleged to have been posted to "sct");

18.7.4.4 1997-G-No 1187 against the University of Minnesota, Starnet Communications Inc. and Kritchai Quancharut (in relation to a message alleged to have been posted to "sct");

18.7.4.5 1997-G-No 1188 against Cornell University and Michael Dolenga (relating to messages alleged to have been posted to "soc.culture.canada");

18.7.4.6 1998-G- No 2819 against Phillip Hallam-Baker.

If and insofar as may be appropriate, the Defendant will also rely on section 12 of the Defamation Act 1952"

13. Untrammelled by authority I would have no hesitation in allowing the proposed amendment. If I did not the Judge would be assessing damages in blinkers. The Plaintiff is claiming damages for injury to his reputation as a University Lecturer and as a private person and ancillary to that damages for injury to his feelings.

14. In my judgment there is material upon which the Defendants can assert that the action is not brought bona fide for purpose of vindicating the Plaintiff's reputation and recovering compensation for true injury to his reputation and feelings.

15. Although I appreciate that the sample of the postings which I have set out is eclectic and some eighty postings are pleaded which themselves according to Mr Rushbrooke are only a small proportion of over three thousand postings made by the Plaintiff, it could well be submitted that these postings are puerile, unseemly and provocative. In effect they invite vulgar and abusive response. As Mr Barca put it these posting are designed to tempt people to overstep the mark and defame the Plaintiff so that he can sue.

16. If I do not allow the amendments sought there is a real danger that the Trial Judge (by agreement trial is by Judge alone) might award damages which were not rightly proportionate to the true injury suffered by the Plaintiff.

17. Although Mackenzie .v. Business Magazines (U.K.) Ltd (C.A. 18th January 1996) was a case of amending to plead justification the words of Kennedy L.J. at page 12 are apposite:-

"In my judgment it is particularly important in an action of this type that both sides should, if at all possible, be allowed to deploy their case as they wish. The Plaintiff seeks to vindicate his reputation. It would be a poor form of vindication if it were only obtained by half muzzling the other side"

18. See also Basham .v. Gregory (C.A. 21 February 1996) per Sir Thomas Bingham M.R. at page 10:-

"The Plaintiff brings this action to vindicate his reputation, no doubt hoping that the jury will accept that he has been seriously libelled and award him damages appropriately. There must, I think, be a serious question as to how valuable a vindication is if it is one against a Defendant who is not able to advance the defence he would wish."

19. But Mr Rushbrooke submitted that this approach which seems to me to be both fair and rational offends against the accepted principles of the Law of Defamation. He referred me to the well-known dicta of Cave J. in Scott .v. Sampson [1882] 8 Q.B.D. 491 at page 505 explaining why evidence of particular acts of misconduct on the part of the Plaintiff tending to show his character and disposition should be excluded where he said:-

"Both principle and authority seems equally against its admission...It would give rise to interminable issues which would have but a very remote bearing on the question in dispute, which is to what extent the reputation which he actually possesses has been damaged by the defamatory matter complained of"

(See also Hobbs .v. Tinling [1929] 2K.B. 1 per Scrutton L.J. at page 18, and Greer L.J. at page 43)."

20. I accept the argument of Mr Barca that the proposed amendments do not offend the principle in Scott .v. Sampson. They are not introduced to establish that the Plaintiff should not be awarded damages because he has a bad or undeserved reputation but to establish that the Plaintiff should only receive derisory or small damages because of his bad conduct which is causally connected to the libel sued upon. In my judgment the Plaintiff's postings are germane to the defamatory posting the subject of his claim.

21. There is a paucity of authority as to the extent to which the Plaintiff's own conduct is relevant in the assessment of damages.

22. In Gatley (9th edition) there appears Paragraph 33.44:-

"The conduct of the Plaintiff is a factor that a jury can take into account when assessing damages. But "conduct" in this context does not encompass the general behaviour of the plaintiff; it relates principally to activities that can be causally connected to the publication of the libel of which the plaintiff complains, though it might include more broadly provocative actions by the plaintiff."

23. Support for this passage is said to be derived, but in my opinion very obliquely and non-specifically, from dicta of Lord Radcliffe in Dingle .v. Associated Newspapers [1964] A.C. 371 at page 395 where he said:-

"Damages for Defamation are an expression of many contributing factors, and, as we know, they can be affected one way or another by a defendant's conduct, by his pleadings, by his counsel's handling of his case, just as, occasionally, even a plaintiff may find his damages affected by the way that he has behaved."

and from dicta of Lord Hailsham L.C. in Broome .v. Cassell & Co [1972] AC 1027 at page 1071 where he said

"The bad conduct of the Plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being "at large""

24. In Kelly .v. Sherlock [1866] L.R. 1Q.B. 686 the facts were:-

"that the plaintiff has preached, on the 8th of November, a sermon against the appointment of a Roman Catholic chaplain to the Liverpool borough gaol, and another sermon on the succeeding Sunday reflecting in strong terms on the conduct of the town council of Liverpool electing a Jew their mayor, and had caused extracts from both sermons to be published in the local newspapers"

at page 698 Blackburn J. said:-

"Now there can be no set-off of libel or misconduct against another, but in estimating the compensation for the plaintiffs injured feelings, the jury might fairly consider the plaintiff's conduct and the degree of respect which the plaintiff himself had shown for the feelings of others; and finding on the evidence, that he published in the local press sermons reflecting on the local authorities that he published a statement (which I own I think borne out by the articles) that the defendant's paper was so conducted as to justify the epithet of "the dregs of provincial journalism," and, above all, that he delivered from the pulpit, and published in the provincial papers, a statement to the effect that some of his opponents (no matter, in my opinion, whether including the defendant or not) had been guilty of subornation of perjury, and would, as he charitably hoped, repent on their deathbeds and confess their guilt, I cannot say that I think the jury were bound to give him substantial damages, though I heartily wish that their verdict had not been such as to give an appearance of triumph to the defendant"

25. Kelly .v. Sherlock was subject to criticism in Judd .v. Sun Newspapers [1930] 30 State Reports New South Wales or at least considered to be of limited validity (see the judgments of Harvey C.J. at page 299 James J. at page 303 and Halse Rogers J. at page 313)

26. The situation in Judd's case was most unusual

"At the trial the plaintiff was put in the box as a witness but not asked any questions by his counsel, nor did he give any evidence in chief; he was, however, cross-examined by counsel for the defendants, at great length, not only in regard to matters material to the facts alleged in the article complained of, but also as to his use of violent, abusive, and insulting language in regard to other persons entirely distinct from matters at issue between the parties"

27. In my judgment the judgments of Harvey C.J. and Halse Rogers J. do not assist the Plaintiff.

28. Harvey C.J. said at page 299:-

"Damages which a jury may award a plaintiff may possibly be increased by the outrageous nature of the language in which the libel is couched, or lessened by the provocative conduct or language of the plaintiff, just as damages may be aggravated by the way in which the defendant has conducted his case in the Court.

In my humble judgment, those elements of damage are hard to justify on principle, but have been sanctioned by usage, and as an indulgence to what is called the practical common sense of juries."

29. Halse Rogers J. said at page 311:-

"Where the language complained of in the action has been provoked by the language of the plaintiff, and relates to the same subject matter, there is sound reason for admitting evidence of all the circumstances in which the libel was published, and for inviting the jury to consider the conduct of the plaintiff on the question of damages"

30. In my judgement the amendments to the Defence sought should be allowed. They are relevant and admissible to establish the Defendants' case as pleaded in Paragraph 18.7 of the Defence.


© 1999 Crown Copyright


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