QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| MAX MOSLEY
|- and -
|NEWS GROUP NEWSPAPERS LIMITED
Mark Warby QC and Anthony Hudson (instructed by Farrer & Co) for the Defendant
Hearing dates: 7-10 & 14 July 2008
Crown Copyright ©
Mr Justice Eady :
The nature of the claim
The "new methodology"
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law, and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
" The first limiting principle (which is rather an expression of the scope of the duty) is highly relevant to this appeal. It is that the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it.
The second limiting principle is that the duty of confidence applies neither to useless information, nor to trivia. There is no need for me to develop this point.
The third limiting principle is of far greater importance. It is that, although the basis of the law's protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.
Embraced within this limiting principle is, of course, the so called defence of iniquity. In origin, this principle was narrowly stated, on the basis that a man cannot be made 'the confidant of a crime or a fraud': see Gartside v Outram (1857) 26 LJ Charity 113, 114, per Sir William Page Wood V-C. But it is now clear that the principle extends to matters of which disclosure is required in the public interest: see Beloff v Pressdram Ltd  1 All ER 241, 260, per Ungoed-Thomas J, and Lion Laboratories Ltd v Evans  QB 526, 550, per Griffiths LJ. It does not however follow that the public interest will in such cases require disclosure to the media, or to the public by the media. There are cases in which a more limited disclosure is all that is required: see Francome v Mirror Group Newspapers Ltd  1 WLR 892."
The significance of visual images
" i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs or by accessing digitally-held private information without consent.
ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means."
"A court may restrain the publication of an improperly obtained photograph even if the taker is free to describe the information which the photographer provides or even if the information revealed by the photograph is in the public domain. It is no answer to the claim to restrain the publication of an improperly obtained photograph that the information portrayed by the photograph is already available in the public domain."
"This action is about photographs. Special considerations attach to photographs in the field of privacy. They are not merely a method of conveying information that is an alternative to verbal description. They enable the person viewing the photograph to act as a spectator, in some circumstances voyeur would be the more appropriate noun, of whatever it is that the photograph depicts. As a means of invading privacy, a photograph is particularly intrusive. This is quite apart from the fact that the camera, and the telephoto lens, can give access to the viewer of the photograph to scenes where those photographed could reasonably expect that their appearances or actions would not be brought to the notice of the public."
A brief summary of the Defendant's case on Article 8
The publication of 30 March 2008
"FORMULA One motor racing chief Max Mosley is today exposed as a secret sado-masochist sex pervert.
The son of infamous British wartime fascist leader Oswald Mosley is filmed romping with five hookers at a depraved NAZI-STYLE orgy in a torture dungeon. Mosley a friend to F1 big names like Bernie Ecclestone and Lewis Hamilton barks ORDERS in GERMAN as he lashes girls wearing mock DEATH CAMP uniforms and enjoys being whipped until he BLEEDS."
Factually, what is challenged in this introductory passage are the references to "NAZI-STYLE" and "DEATH CAMP uniforms". It will be recalled, however, that the Claimant is not suing for injury to reputation. The relevance of this would appear to be confined to the Defendant's public interest defence.
i) "FASTEST SLAP Racing boss Mosley wallops one of the squealing hookers with leather paddle."
ii) "SO SICK In the midst of one beating, a panting Mosley watches one hooker take off her Nazi uniform."
iii) "IN CHAINS Mosley lies face down on a bed trussed up before his punishment."
iv) "TAKE ZAT! Formula One supremo Mosley is bent naked and chained over the torture bench in the S&M dungeon as one of the hookers lays into his bare buttocks so hard with a cane he needed a dressing to cover the wounds."
v) "SINISTER Hooker in mock death camp clothes is gagged."
vi) "TEA-TIME: Mosley after orgy."
vii) "TWISTED GAME: Hooker ticks off SS-style inspection sheet. Mosley has called himself 'Tim Barnes' to earn extra punishment."
There are two other uncaptioned photographs showing part of the "medical inspection" at the beginning of the first scenario, including one of his head being examined for lice.
The publication of 6 April 2008
"1. Two hookers wore German military jackets with eagle and tunic collars (below).
2. Three of the vice girls wore striped prison uniforms.
3. Mosley played a death camp inmate guards checked him for lice and took measurements with a clipboard.
4. He is told to face the floor as girl signs for him on clipboard.
5. One 'guard' uses the term 'facility' the sort of clinical language associated with Nazis.
6. Mosley gives out brutal beatings like concentration camps.
7. He is shaved just like the Jews.
8. Other camp 'victims' are forced to watch their friends being abused.
9. Mosley speaks in German.
10. He uses fake German accent to speak English."
"TODAY we expose Formula 1 chief Max Mosley as a LIAR as well as a pervert who revelled in a chilling Nazi-style sado-masochistic orgy with five hookers."
"Then he made light of the shocking scandal as 'harmless and completely legal' adding: 'It goes without saying that the so-called Nazi element is pure fabrication'.
But that's a total LIE. And today we prove it by revealing all that's decent to print on the episode that disgraced even HIS family's already shame-drenched name.
One of the five hookers he hired for sex in the London torture chamber nine days ago insisted last night: 'Max KNEW last week's orgy was to have a Nazi theme he ORDERED it!' "
Was there a Nazi or "death camp" theme?
"Hi ladies. Just to confirm the scenario on Friday at Chelsea with Mike, starting at 3. If you're around before then, I'm doing a judicial on him at noon so if you'd like to witness that, be here for 11am but don't stress if you can't make that. [Woman D] I've got uniform everyone else as before [i.e. on 8 March] Can't wait it'll be great My bottom is so clear for a change. Any problems or address needed just yell. Lots of love [Woman A]
xxxx" (Emphasis added)
The events of 8 March 2008
The missing emails
Mr Thurlbeck's behaviour following publication on 30 March 2008
"I hope you are well. I am Neville Thurlbeck, the chief reporter at the News of the World, the journalist who wrote the story about Max Mosley's party with you and your girls on Friday.
Please take a breath before you get angry with me!
I did ensure that all your faces were blocked out to spare you any grief.
And soon, the story will become history as life and the news agenda move on very quickly.
There is a substantial sum of money available to you or any of the girls in return for an exclusive interview with us. The interview can be done anonymously and you[r] face can be blacked out too. So it's pretty straight forward.
Shall we meet/talk?"
He became more insistent the following day:
"I'm just about to send you a series of pictures which will form the basis of our article this week. We want to reveal the identities of the girls involved in the orgy with Max as this is the only follow up we have to our story.
Our preferred story however, would be you speaking to us directly about your dealings with Max. And for that we would be extremely grateful. In return for this, we would grant you full anonimity [sic], pixilate your faces on all photographs and secure a substantial sum of money for you.
This puts you firmly in the driving seat and allows you much greater control as well as preserving your anonimities [sic] (your names won't be used or your pictures).
Please don't hesitate to call me or email me with any thoughts.
Regards and hope to do business.
Neville Thurlbeck, chief reporter, News of the World"
"Ok girls, here's the offer. It's 8,000 pounds for an interview with one of you, with no name, no id and pixilated face. And we pixilate all the pics I send through to you this morning.
BUT time is running out for us and if you want to come on board, you need to start the ball rolling now. Call me if you want to.
"Q This was a naked threat, wasn't it, Mr Myler?
A I think it could be interpreted as a threat. I'm not so sure
Q Come on, Mr Myler, please.
A Well, clearly it could be interpreted as a threat, but I think by this time the girls who took part would have known that the News of the World had the photographs anyway.
Q What's it called when you threaten to reveal publicly the identity of somebody who has done something embarrassing which they do not wish to become public unless they cooperate with you? What's it called?
A I think you know what it's called. You're talking about the potential use of blackmail.
Q I am.
Q Isn't that what we have here?
A I'm not so sure it is.
Q Do you think there was a justification for that threat?
A I have already accepted that clearly looking at this it could be interpreted as a threat, and I accept that."
This seemed to fall short of a wholesale endorsement of his chief reporter's behaviour.
"Q Just before you leave that, can I ask you whether you ever raised this with Mr Thurlbeck?
A No, my Lord, because I was away that week so I wasn't aware of these emails at that particular time.
Q When you did become aware of them did you raise it with him then?
A I did not because I didn't become aware of them until considerably after the event, literally only at the disclosure stage."
That is effectively a non-answer, from which it would appear that Mr Myler did not consider there was anything at all objectionable about Mr Thurlbeck's approach to the two women, as he did not query it at any stage. This discloses a remarkable state of affairs.
"A I had two potential stories. I was telling them quite openly what those stories were and giving them an option, I can use one or the other. They were in the driving seat, as I say. The choice is theirs. And I made it very clear the story that I wanted was their story rather than the sort of superficial investigation I was able to do on the internet myself.
Q You are giving them a choice?
Q Between cooperating, giving you an interview and getting paid.
Q And if they don't they get their pictures in the newspaper in the most embarrassing and humiliating circumstances?
A Sometimes unfortunately I'm not pretending this was an easy choice for them, but it was the only choice. I was a journalist with two stories, one of which I got from my own investigating, and here it was, and the alternative was another story, an interview with them anonymously for which they'd be paid. Those were the choices. I'm not saying it was an easy choice and I'm not saying it was a choice they particularly relished. It was a tough choice but nevertheless they were the only options I could give them. But I thought the second option of talking to me anonymously and for money was a very fair option.
Q Let's be direct about this. There is a clear threat here that if they don't cooperate they will expose them in the News of the World?
A No, I don't accept that. I think there was a clear choice here but there was no attempt to threaten them.
Q Let's get this straight. If the blackmailer says to the victim, 'Either you pay up or I'll put your picture in the newspaper' he's offering him a very fair choice?
Q There's no threat?
A No, because I'm asking for something here. Your example states that I'm asking for something in return for issuing a threat.
Q Yes, indeed you are.
A No, I'm offering to give them something. I'm offering to pay them money for an anonymous interview. I'm offering to pay them, not to take anything from them, so in that sense I'm not blackmailing them at all. That thought never crossed my mind. I'm offering them a choice."
It seems that Mr Thurlbeck genuinely did not see the point. Yet it is elementary that blackmail can be committed by the threat to do something which would not, in itself, be unlawful.
"It wasn't a one off. Max has been hiring us to do this for years. He is addicted to sado-masochistic sex involving Nazis and beatings."
This contrasts with the contents of paragraph 38 of Mr Thurlbeck's witness statement, in which he said:
"It was clear to me from speaking to [Woman E] on 27 March that the party the next day was the first time [she] herself was involved with the Claimant in a party with any Nazi or military theme."
"I filed my copy at about lunchtime on Saturday 5 April. There were no subsequent queries for [Woman E]."
"Q So that is not what Woman A said to Woman E, but an impression that Woman E obtained?
A Woman A had told her there was going to be a Nazi theme.
Q That is not what you say in that paragraph. You are quite specific about what Woman A had told her, and you then say that Woman E was 'under the impression'
A I think there are two ways of reading that word 'impression', and one is that she was under the illusion, and the other way of defining it is that it had been impressed upon her that this was going to be the case, that there was going to be a Nazi theme. It was very clear from her instruction from Woman A. That was what she told me.
Q There is another interpretation, which I suggest is the natural one; that this is what she was told, to wear a German uniform and there would also be a German dominatrix present and, from that, she obtained the impression that there was to be a Nazi theme.
A No, because the word 'Nazi' was used. I remember her specifically telling me that the word 'Nazi' was used. It was a Nazi theme.
Q What I am suggesting to you is that, when you in your witness statement that she was under the impression that there was a Nazi theme, you are speaking nothing more and nothing less than the truth. Do you understand?
A No. I very strongly disagree with what you are saying there. It had been impressed upon her and, therefore, she was under the impression that there was going to be a Nazi theme at the orgy. She was very clear about it to me. They were both very clear about it to me.
Q You see, there is a curiosity about this. The fact that there was to be a Nazi theme would be a key element to the whole story, would it not?
A It would be a very important element.
Q But you did not tell anyone back at the News of the World about that?
It is simply a question of construing the English language in an idiomatic way. Being "under the impression" is not to be equated with having it impressed on one. This again is disingenuous.
Was there a reasonable expectation of privacy or a duty of confidence?
" our scene is based on complete trust and complete discretion. However one of my so called close friends dominatrix [Woman E] has betrayed that confidence by doing what she has done. I am devastated by this act of pure total selfish greed, she has no morals, no integrity, no loyalty, complete disregard to others, cruel, and she is a liar!!! No one deserves this invasion of privacy."
Was there a public interest to justify the intrusion? My own conclusions
(i) The allegation of criminality
(ii) The Nazi and concentration camp theme
(iii) "Depravity and adultery"
"11. The Assembly reaffirms the importance of every person's right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.
12. However, the Assembly points out that the right to privacy afforded by article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media."
"25. Judges need to be wary about giving the impression that they are ventilating, while affording or refusing legal redress, some personal moral or social views, and especially at a time when society is far less homogeneous than in the past. At one time, when there was, or was perceived to be, a commonly accepted standard in such matters as sexual morality, it may have been acceptable for the courts to give effect to that standard in exercising discretion or in interpreting legal rights and obligations. Now, however, there is a strong argument for not holding forth about adultery, or attaching greater inherent worth to a relationship which has been formalised by marriage than to any other relationship.
26. A judge, like anyone else, is obviously entitled to hold personal moral views about the issues of the day, but it is important not to let them intrude when interpreting and applying the law. Such issues are best avoided at least without some statutory sanction. No doubt many people, especially those with a strong religious faith, will disapprove of adultery. Many others, on the other hand, will not give it a second thought, while moving easily through a series of medium or short-term relationships as they feel it appropriate.
27. With such a wide range of differing views in society, perhaps more than for many generations, one must guard against allowing legal judgments to be coloured by personal attitudes. Even among judges, there is no doubt a wide range of opinion. "
It was only, of course, a decision at first instance which did not go to appeal, but that is because permission was refused (in January 2007).
"In matters relating to striking a balance between protecting private life and the freedom of expression that the Court had had to rule upon, it has always emphasised the requirement that the publication of information, documents or photographs in the press should serve the public interest and make a contribution to the debate of general interest Whilst the right for the public to be informed, a fundamental right in a democratic society that under particular circumstances may even relate to aspects of the private life of public persons, particularly where political personalities are involved publications whose sole aim is to satisfy the curiosity of a certain public as to the details of the private life of a person, whatever their fame, should not be regarded as contributing to any debate of general interest to society."
Public interest: the journalists' perception
"31 The necessary precondition of reliance on qualified privilege in this context is that the matter published should be one of public interest. In the present case the subject matter of the article complained of was of undoubted public interest. But that is not always, perhaps not usually, so. It has been repeatedly and rightly said that what engages the interest of the public may not be material which engages the public interest.
32 Qualified privilege as a live issue only arises where a statement is defamatory and untrue. It was in this context, and assuming the matter to be one of public interest, that Lord Nicholls proposed [in Reynolds v Times Newspapers Ltd], at p 202, a test of responsible journalism, a test repeated in Bonnick v Morris  1 AC 300, 309. The rationale of this test is, as I understand, that there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify. As Lord Hobhouse observed with characteristic pungency, at p 238, 'No public interest is served by publishing or communicating misinformation.' But the publisher is protected if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication.
33 Lord Nicholls, at p 205, listed certain matters which might be taken into account in deciding whether the test of responsible journalism was satisfied. He intended these as pointers which might be more or less indicative, depending on the circumstances of a particular case, and not, I feel sure, as a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege. Lord Nicholls recognised, at pp 202-203, inevitably as I think, that it had to be a body other than the publisher, namely the court, which decided whether a publication was protected by qualified privilege. But this does not mean that the editorial decisions and judgments made at the time, without the knowledge of falsity which is a benefit of hindsight, are irrelevant. Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner."
"[The husband] said that this was fascinating because [his wife] had told him that the Claimant had ordered a German theme, that there would be a German-speaking dominatrix at the sex party (in addition to [his wife]) and that the dominatrices had been asked to wear military uniform. [His wife] had been told all of this by a woman whose name was [Woman A] who [the husband] told me was the senior prostitute/dominatrix. From speaking to [the husband], it was apparent that it was [Woman A] (rather than [Woman E]) who liaised directly with the Claimant regarding his instructions for the sex parties. [Woman A] then arranged the parties and their themes according to the Claimant's instructions."
It will be noted that Mr Thurlbeck appears to have no specific recollection of a Nazi theme being mentioned at this stage either.
"[Woman E] was under the impression that the sex party would consist of sado-masochistic acts but played out as part of a Nazi role-play. [The husband] was speaking in these general terms about the 'theme' of the party being 'Nazi' that the Claimant had apparently ordered through [Woman A]."
Thus, at this stage, Mr Thurlbeck had the information from the husband that Woman E was "under the impression" that there would be Nazi role-play. He was speaking about this only "in these general terms". He added:
" I recognised that what [the husband] was saying about the party having a German military and, in particular, a 'Nazi' theme to it was of significance given the Claimant's public role as head of the FIA."
"When I said this to [her] I was not in any sense trying to persuade her to make that gesture when she was with the Claimant, or persuade her to try to get the Claimant to make that gesture. I had been told by [Woman E] that the sex party the next day was to have a Nazi theme. I obviously considered it important that should the Claimant make such a gesture it was recorded on film."
"At this time my understanding from talking to [Woman E and her husband] was that the previous parties may have had a Nazi theme." (Emphasis added)
This is remarkably vague in the circumstances, and particularly against the background of the clandestine recording proposed. He confirmed, however, that it was clear to him from speaking to Woman E that the party next day was to be the first time that she had been "involved with the Claimant in a party with any Nazi or military theme". I have already commented on the apparent inconsistency between this passage in the witness statement and the contents of the "interview" which she signed on 5 April.
"I showed Mr Mellor what I believed to be strong Nazi connotations in the footage. I showed him the scenes which contained the lice inspection; the girls in the pseudo-Nazi uniforms; the inmates in the striped uniforms which I believed were reminiscent of concentration camp victims; the beatings of the Claimant and the beatings of the girls; the Claimant counting the beatings in German; [Woman B] taking charge of the sex acts with the girls; and [Woman B] speaking in German with the Claimant. Mr Mellor shared my view that the footage contained strong Nazi connotations."
"There is obviously a very strong Nazi theme here there is no doubt about it, but I suggest we write the story without resorting to hyperbole because the mere description of the events themselves will be sufficient to convey the powerful Nazi theme at the party."
This advice does not seem to have been heeded.
"I had confirmed that whilst the prostitutes were wearing foreign military uniforms they were not genuine Nazi uniforms. Despite this I, Ian Edmondson, James Mellor and the editor all considered that the orgy clearly had Nazi and concentration-camp connotations. This conclusion was supported by what I had been told before the orgy by [Woman E]. [She] had told me that [Woman A] had told her to dress in a German army uniform and that there would be prostitutes performing the role of prisoners. There would also be a German dominatrix and part of the role-play would be conducted in German and that Mr Mosley would be speaking in German."
It is perhaps curious that, at this stage, when giving his account of what he had been told previously, Mr Thurlbeck should omit any reference to a "Nazi theme". Again, it rather suggests that "German" may have simply been glossed into "Nazi".
"OUR sensational exposι of Max Mosley's Nazi orgy made global headlines and sent shockwaves through the world of motor racing "
"47. There undoubtedly are strong arguments of principle in favour of limiting the application of an avowedly punitive award to those who are personally at fault, who, in all but a tiny minority of cases brought against the police, could confidently be expected not to include the chief constable. However, since the power to award exemplary damages rests on policy rather than principle, it seems to me that the question whether awards can be made against persons whose liability is vicarious only must also be answered by resort to considerations of policy rather than strict principle. While the common law continues to recognise a power to award exemplary damages in respect of wrongdoing by servants of the government of a kind that has a direct effect on civil liberties, which for my own part I think it should, I think that it is desirable as a matter of policy that the courts should be able to make punitive awards against those who are vicariously liable for the conduct of their subordinates without being constrained by the financial means of those who committed the wrongful acts in question. Only by this means can awards of an adequate amount be made against those who bear public responsibility for the conduct of the officers concerned.
48. It was assumed in Kuddus' case  2 AC 122, as in all previous cases, that an award of exemplary damages could be made against the chief constable (indeed, the chief constable did not seek to argue to the contrary), but this continuous assumption does not in my view amount to an authoritative decision on the question. We are, therefore, free to reach our own decision. As I have indicated, I would be in favour of holding that a substantial award of exemplary damages can be made against a chief officer of police under section 88 of the Police Act 1996 in accordance with the principles set out in Thompson's case  QB 498, but even if I were of a different view, I think that in a matter of this kind this court should be slow to disturb an understanding of the law that has existed for over 40 years and on the basis of which many decisions at the highest level have proceeded."
"At the moment it is established that there is vicarious liability for exemplary damages, though the House of Lords has indicated that the matter needs further consideration and it has been said that 'vicarious punishment, via an award of exemplary damages, is contrary to principle and should be rejected'. However, since the reach of vicarious liability in tort law is much wider than in the criminal law, it may be asked why this should not be carried through into damages. In most libel cases the defendant, or the principal defendant, will be a media corporation but the state of mind of the journalist and a fortiori of any higher officer such as an editor will, of course, be imputed to the corporation and it is irrelevant that the intended gain will come to the corporation rather than to the individual."
The nature of compensatory damages in privacy cases
"I cannot accept that the main purpose of John was to establish a ceiling, if by that is meant that in the most serious cases awards of general damages at the very top of the JSB range would normally be appropriate. Such cases comprise quadriplegia, very severe brain damage where 'in the most severe cases the plaintiff will be in a vegetative state unable to obey commands, with no language functions and the need for 24 hour nursing care', and total blindness and deafness. For my part, save possibly in the most exceptional cases, I find it difficult to imagine any defamation action where even the most severe damage to reputation, accompanied by maximum aggravation, would be comparable with such appalling physical injuries. The purpose of the personal injuries comparison sanction in John is in my judgment to assist juries and the Court of Appeal to maintain a sense of proportion, by drawing a comparison between any prospective award of damages for defamation with the type of personal injury which would lead to a similar award, without of course seeking any precise correlation."
It is also to be borne in mind that some heads of damage reflected in libel awards, such as aggravation and vindication, have no direct point of comparison in personal injury cases.
"It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a highhanded, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation."