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Date:
Fri, 3 Nov 2006 13:49:48 +0000
From:
Steve Hedley
Subject:
Defamation
Personally
I would be very surprised if the judicial venom summoned up against
Mr Blake were also brought to bear on any libel defendant, but I'm
happy to await events here. Of course, if the Lords did introduce
such a remedy, they would be changing the law (but that's another
thread, on another discussion list).
As
to the Law Com report, the precedents aren't good - reports which
have escaped implementation after a decade often don't have much
to look forward to. The latest that I know on this is as follows
(from the Law Com's latest annual report (40th Annual Report,
June 2006)):
AGGRAVATED,
EXEMPLARY AND RESTITUTIONARY DAMAGES
3.16
We published a report in 1997-8. In November 1999 the Department
for Constitutional Affairs (DCA) said that it accepted our recommendations
on aggravated and restitutionary damages, though not those on
exemplary damages, and would legislate when a suitable opportunity
arose. We understand that in view of the length of time that has
elapsed DCA intends to reconsider the recommendations on aggravated
and restitutionary damages in its consultation on our other damages
reports (see paras 3.34-36).
Of
course, implementation would mean a not-awfully-strong government
making a law reform proposal designed to increase the liability
of newspaper defendants in libel cases. Any bets on how that would
go?!
Steve
Hedley
Faculty of Law, University College Cork
-----Original
Message-----
From: Andrew Burrows
Sent: 03 November 2006 13:18
Subject: ODG: Defamation
I
would have thought it very likely that, if the question were to
go to the House of Lords - not least in the light of Att-Gen
v Blake - disgorgement/restitution of profits made by a deliberate
libel would be regarded as an available remedy. It would seem odd
to say that punitive damages can be awarded under category two but
disgorgement/restitution cannot. Note that the Law Commission in
its Report No 247 recommended that disgorgement/restitution of profits
should be an available remedy for any tort where there has been
an outrageous and deliberate disregard of the claimant's rights
(Draft Bill clause 12(1)).
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