High Court of Justice in Northern Ireland Queen's Bench Division Decisions

McCartan Turkington Breen v. Telegraph Group [1998] NIQB 1; [1999] NIJB 1 (11th May, 1998)

Delivered: 11 May 1998

SHEL2610

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION

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BETWEEN:

TURKINGTON, BREEN, TELFORD, McVEIGH, BENNETT

AND HARTY, PRACTISING AS McCARTAN TURKINGTON

BREEN

Plaintiff

v

TELEGRAPH GROUP LIMITED

Defendant

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RULING; 11 MAY 1998

SHEIL J

1. The issue which I have to decide at the outset of this libel action is whether a plaintiff who pleads aggravated damages has to give particulars thereof in his statement of claim. Order 18 rule 8(3) of the Rules of the Supreme Court (Northern Ireland) 1980 provides that:

"A claim for exemplary damages or for provisional damages must be specifically pleaded together with the facts on which the party pleading relies".

2. The Rules are silent as to whether it is necessary in a claim for aggravated damages to plead the facts on which a plaintiff relies.

3. Order 18 rule 8(3) of the Rules of the Supreme Court in England and Wales is identical to Order 18 rule 8(3) of the Rules of the Supreme Court (Northern Ireland) 1980. In the Supreme Court Practice 1997, Volume I, at paragraph 18/12/6 it is however stated that:

"The facts relied on to support a claim for aggravated damages should be specifically pleaded."

and cites in support the decision of the Court of Appeal in England in Perestrello E Companhia Limatada v United Paint Co Ltd [1969] 3 All ER479. On looking at that decision it is clear that that case was not one of aggravated damages as that term is used by lawyers in defamation litigation.

4. In Volume 36 [Pleading] of Halsbury's Laws of England 4th Edition at paragraph 26 it is stated that:

"A plaintiff need not plead facts on which he will rely only in aggravation of damage"

and states in the footnote that the dicta in Scott v Sampson (1882) 8QBD 491 which implied that facts in aggravation cannot be proved unless pleaded, cannot be supported, although the decision remains goods insofar as it decides what evidence is admissible where it is sought to mitigate the damage. In the 1998 cumulative supplement to Halsbury at page 36/2, paragraph 26, there is no alteration to the original text on this point.

5. In a Notice for Particulars dated 9 December 1997 the defendant's solicitors requested "full details of all facts and all matters relied on in support of the plaintiff's allegation that the plaintiff is entitled to aggravated damages". By a reply dated 23 December 1997 the plaintiff's solicitors stated:

"The aggravated damages are claimed as part of the general damages and do not form the basis of a separate claim. The defendant is not entitled to particulars of these."

6. The defendant did not pursue the matter further and appears to have accepted this reply at that time.

7. In Gatley on Libel and Slander, 9th Edition (1998) at paragraph 26.28 it is stated:

"Where the plaintiff claims to have suffered an injury going beyond the normal damage which is presumed to follow in the ordinary course from a defamatory publication, he must give particulars of the facts and matters relied upon in support of that claim, including details of any conduct by the defendant which it is alleged has increased the loss suffered and of any loss which is peculiar to the plaintiff's own circumstances. The purpose of this rule is to ensure that the defendant has adequate warning of the case which he has to meet and is assisted in computing any payment into court which he may choose to make. A plaintiff is accordingly required to give details of any matters on which he will rely in aggravation of damages, such as malicious conduct on the part of the defendant or (where appropriate) a failure by the defendant to retract or apologise for the defamatory allegation. The plaintiff must also give details of any idiosyncratic feature of the case which has caused him to be more adversely affected by the publication than might ordinarily have been expected. The tendency of the court has been increasingly to require such matter to be pleaded in detail."

8. The text just quoted above and those in addition stated below have to be considered in the light of the fact that Order 82 of the Rules of the Supreme Court in England and Wales, which deals specifically with defamation actions, provides by rule 3(3A):

"Without prejudice to Order 18 rule 12, the plaintiff must give full particulars in the statement of claim of the facts and matters on which he relies in support of his claim for damages, including details of any conduct by the defendant which it is alleged has increased the loss suffered and of any loss which is peculiar to the plaintiff's own circumstances."

9. There is no equivalent rule in Order 82 of the Rules of the Supreme Court (Northern Ireland) 1980, which also deals specifically with defamation actions.

10. In Halsbury's Laws of England, 4th Edition, Volume 28 [Libel and Slander] it is stated at paragraph 186:

"Where the injury to the plaintiff has been aggravated by the conduct of the defendant, the plaintiff may claim aggravated damages. Such damages are part of, or included in, the sum awarded as general damage and are, therefore, at large. Although they need not be included in the prayer for relief, the details of the defendant's conduct must be pleaded in the statement of claim."

11. I also refer to Odgers on High Court Pleading and Practice 23rd Edition at pages 142/143, where it is stated that particulars of any facts relied on in support of a plea of aggravated damages should be pleaded.

12. While under the Rules of the Supreme Court (Northern Ireland) 1980, it is not necessary for the plaintiff to give particulars of the facts relied on in support of a claim for aggravated damages, I consider that it is desirable that such particulars should be given so as to avoid an opposite party being taken by surprise. The Supreme Court Rules Committee in this jurisdiction should consider amending Order 82 of the Rules of the Supreme Court (Northern Ireland) 1980 so as to add a rule similar to Order 82 rule 3(3A) in England and Wales. The facts upon which the plaintiff now seeks to rely in the draft particulars put before the Court were not known to the plaintiff at the time when the Statement of Claim was served or the Reply to the Notice for Particulars was delivered; they have only very recently come to light by way of disclosure of documents by the defendant's solicitors on 23 April 1998. Discovery of documents had first been requested by the plaintiff's solicitors in a letter dated 27 February 1998 to the defendant's solicitors. The said documents were subsequently inspected by the plaintiff's solicitors on 28 April 1998. They had been received by the defendant's solicitors from the defendant at the end of March 1998; Easter Sunday fell on 12 April 1998 which accounts for some of the delay.

13. I rule that Mr Lavery may rely on the facts set out in his draft particulars in opening the case before the jury, which particulars should now be given by way of an amendment to the plaintiff's Reply to the Notice for Particulars or preferably by way of amendment to the Statement of Claim by incorporating them therein.

14. Mr Thompson QC, who appears with Mr Simpson for the defendant, states from the Bar of the Court that he is not in a position to deal with the facts as set out in the said amendments and that it will be necessary for him to give consideration to further Proofs directing the attendance of witnesses to deal with the facts therein. I accept that statement. RULING ON COSTS: 22 MAY 1998

15. Litigants in libel proceedings know from the outset that discovery of documents is almost invariably an important step in the proceedings and they should be prepared to deal with that issue at an early stage, when the pleadings have disclosed the issues between the parties.

16. The Writ of Summons in this action was issued on 5 September 1997 and the action was set down for hearing on 27 January 1998 with commendable speed. The plaintiff's solicitors first sought discovery of documents in a letter dated 27 February 1998 to the defendant's solicitors. It was not until 23 April 1998 that the defendant furnished its list of documents; the plaintiff in the meantime had issued a summons for discovery of documents on 26 March 1998 returnable on 30 April 1998. The defendant's solicitors informed the Court that they only received the documents from the defendant at the end of March 1998; Easter Sunday fell on 19 April 1998 which accounted for some, but not all, of the delay in furnishing a list to the plaintiff's solicitors.

17. It was only when the plaintiff's solicitors subsequently inspected the documents on 28 April 1998 that the matters giving rise to the particulars of aggravated damages, which were raised as an issue before this court on 11 May 1998, first came to the knowledge of the plaintiff's solicitors and became the subject of the ruling made be me on 11 May 1998. If discovery of documents had been sought earlier by the plaintiff's solicitors and if the defendant's solicitors, when asked to furnish a list had done so with greater expedition, the situation which arose on 11 May 1998, when I granted the defendant's application to adjourn the trial after the jury had been sworn, would not have occurred.

18. I consider that the proper order to make with regard to the costs of 11 May 1998 is that costs should be costs in the cause.

SHEL2610 IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION

-------

BETWEEN:

TURKINGTON, BREEN, TELFORD, McVEIGH, BENNETT

AND HARTY, PRACTISING AS McCARTAN TURKINGTON

BREEN

Plaintiff

v

TELEGRAPH GROUP LIMITED

Defendant

------

J U D G M E N T O F

SHEIL J

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