In defamation cases, the concept of mitigation refers to a legal strategy that aims to reduce the amount of damages awarded to the plaintiff.
In this blog post, I discuss the scope of evidence admissible at trial for mitigation in defamation cases.
This discussion is informed by the Western Australian court decision in Rayney v Reynolds (No 4) [2022] WASC 360.
The Necessity of Pleading Mitigation
To rely on mitigation as a defence in a defamation case, the defendant must specifically plead it. This is to ensure that both parties are aware of the arguments being raised and can prepare their cases accordingly, in line with the Rules of the Supreme Court 1971 (WA).
Failure to plead mitigation prevents a defendant from adducing evidence in support of their mitigation argument (Rayney v Reynolds (No 4) [2022] WASC 360, [36]).
Admissibility of Evidence in Defamation Cases
When it comes to the admissibility of evidence in defamation cases, courts consider various factors.
Section 34 of the Defamation Act requires the court to ensure there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Evidence of the plaintiff's actual harm to their reputation is relevant and admissible (Rayney v Reynolds (No 4) [2022] WASC 360, [37]).
Evidence in reduction of damages can be admitted on two bases: first, if it demonstrates the plaintiff's bad reputation; and secondly, if it is properly before the court on some other issue (Rayney v Reynolds (No 4) [2022] WASC 360, [39]).
However, evidence of specific acts of misconduct is inadmissible (Scott v Sampson). The rationale behind this exclusionary rule is pragmatism and fairness.
The Court of Appeal in the United Kingdom held in Burstein v Times Newspapers Ltd that evidence of 'directly relevant background context' is admissible in mitigation of damage in a defamation action. In Turner v News Group Newspapers Ltd, the court provided further clarification on the admissibility of evidence, stating that:
The exclusionary rule in Scott has never been absolute.
A plaintiff cannot generally be subjected to a roving inquiry into aspects of their life unconnected with the subject matter of the alleged defamation.
Evidence of matters directly relevant to the alleged defamation can be considered when assessing damages.
Such evidence must relate to 'the relevant sector of the plaintiff's life', meaning the sector of the plaintiff's reputation with which the imputations relied on by the plaintiff were concerned.
Determining the Relevant Sector
To determine the relevant sector, the court must consider the defamatory material and its context, as well as the terms of the imputations pleaded (Rayney v Reynolds (No 4) [2022] WASC 360, [43]).
The extent of admissible evidence relating to the plaintiff's conduct is primarily limited to activities that can be causally connected to the publication of the libel of which the plaintiff complains (Gatley on Libel and Slander).
Key take-aways
Understanding the scope of admissible evidence for mitigation in defamation cases is essential for both plaintiffs and defendants.
The key takeaway is that evidence must be directly relevant to the alleged defamation and must pertain to the relevant sector of the plaintiff's life.
This ensures that the court can accurately assess damages and strike a balance between the interests of both parties.
Cases mentioned in this blog post:
Rayney v Reynolds (No 4) [2022] WASC 360
Turner v News Group Newspapers Ltd [2006] 1 WLR 3469
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Scott v Sampson (1882) 8 QBD 491