PROVING THINGS 59: TO GET SPECIAL DAMAGES YOU HAVE TO PLEAD THEM AND PROVE THEM (EVEN IN DEFAMATION CASES)
In Lisle-Mainwaring -v- Associated Newspapers Ltd  EWHC 543 (QB) Judge Parkes QC (sitting as a Deputy Judge of the High Court) declined to award the claimant special damages for financial outlay on the grounds that they were never properly pleaded or particularised. This case relates to a claim for special damages in a defamation case. However the basic principle – the need to properly plead, particularise and prove damages – is universal. It applies where, as in this case, the loss is ongoing.
“There should have been a pleaded case as to the nature and foreseeability of each republication, the basis of ANL’s liability, the harm that would be likely to be caused by it, and the cost incurred in dealing with it. The rolling monthly invoices show only the billed time that DLA Piper spent on the work. They do not provide any basis on which the court can assess whether the work done was reasonable, necessary or proportionate.”
The claimant brought an action for libel. The libel was admitted. One aspect of the claim for damages was the costs of taking down the internet repetitions and republications of the original libel. The claimant sought these costs. The defendants objected on the grounds that they had never been particularised or properly pleaded.
THE JUDGMENT ON THIS ISSUE
131. There is a claim for special damages, founded on what the claimant says was the need to take down from the internet repetitions and republications of the words complained of. In effect, the claim is for the costs incurred in mitigating her loss. It has turned out to be an issue of very considerable difficulty.
132. By CPR 16PD 8.2(8), a claimant must specifically set out in the Particulars of Claim ‘any facts relating to mitigation of loss or damage’. CPR 53 PD, which relates to defamation claims, has the following material paragraphs:
“2.1 Statements of case should be confined to the information necessary to inform the other party of the nature of the case he has to meet. Such information should be set out concisely and in a manner proportionate to the subject matter of the claim.
2.10 (1) A claimant must give full details of the facts and matters on which he relies in support of his claim for damages.”
133. It has always been necessary to plead and prove special damage with proper particularity: so in Perestrello v United Paint Co  1 WLR 570, a contract case, Lord Donovan stated at p579 that
“… if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into court.
The limits of this requirement are not dictated by any preconceived notions of what is general or special damage but by the circumstances of the particular case. “The question to be decided does not depend on words, but is one of substance” (per Bowen L.J. in Ratcliffe v Evans  2 QB 524, 529.
The same principle gives rise to a plaintiff’s undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is “special” in the sense that fairness to the defendant requires that it be pleaded.
The obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible.”
134. What is the claimant’s pleaded case? In the context of serious harm (s1, Defamation Act 2013), the following is pleaded at paragraph 10 of the Particulars of Claim:
“10.3 The Internet’s ubiquity and the permanent and accessible nature of the words complained of …. mean not only that the claimant’s reputation is already irreparably harmed but also that further serious harm to it is in the future likely.
10.4 The words complained of have entirely foreseeably been repeated and republished extensively by other websites worldwide with open accessibility in this jurisdiction, so increasing the scope of publications here and the serious harm to the claimant’s reputation for which the Defendants and each of them are responsible. For example, at…. [the pleader goes on to identify three locations, one on the website wn.com, and two on source30.com ].”
“Further, in support of her claim for special damages the Claimant will rely upon her costs incurred in having removed from the Internet the various repetitions and republications by third parties of the words complained of and links to the same, which repetitions, republications and links are the foreseeable consequence of the publications of the said words by the Defendants and each of them and have been caused by the said publications. The Claimant is presently unable to quantify or particularise her loss in these respects but will serve particulars of special damage separately when the same are available.”
136. No particulars of special damage were ever served in pleading form. Indeed, no particulars at all were served until 8 July 2016, when the second witness statement of Ruth Hoy was served on behalf of the claimant. The reason that the particulars had not been served earlier was said to be that the clean-up operation was never-ending, making it cost-effective and proportionate to serve the information in July 2016: to have done it earlier, Ms Hoy says, would have required regular updating.
137. The whole task is said by the claimant to have been the reasonably foreseeable consequence of the publication by ANL of the words complained of. The claimant’s case is that material published on Mail Online attracts an immense global readership, and is bound to be re-published and shared many times over. It appears that some websites will simply ‘lift’ and republish entire articles without amendment or permission; others will republish particular information. ANL’s evidence is that neither article was syndicated, and any repetition of them was unauthorised. Some of the sites were ‘scrapers’, which illegally search the internet for other people’s work and reproduce it without permission; some are content farm websites which automatically republish material taken from the MailOnline website, using the RSS feed. Nonetheless, Mr Tomlinson maintains, publication by news scrapers and content farm websites was entirely foreseeable.
148. As at 8 July 2016, the accrued value of the special damage claim was put by Ms Hoy, in her witness statement of that date, at £32,798. That turned out to be an arithmetical error: the sum was actually £35,455. That was said to represent the costs incurred by the claimant up to 30 June 2016 of ‘engaging in a “cleaning up” operation of the republication of defamatory material about her on the internet’. The sum was broken down by Ms Hoy by reference to DLA Piper’s monthly invoices. For example, the total invoiced for February 2016 was £6,357, in respect of ‘Tackling on line republications and search results including source30.com, Press Reader, Nigeria Daily News, Vanuatu, correspondence with Nigeria Daily News, the primary service provider for Nigeria news’. That was the extent of the particulars supplied for any given month.
149. By letter dated 2 September 2016 Wiggin asked for a breakdown of the costs, seeking details of invoiced costs, including hourly rates, number of hours and disbursements, in relation to each of the websites referred to in Ms Hoy’s 8 July 2016 witness statement, and in relation to Google.
150. DLA Piper responded on 7 September that the information was not readily available in the format requested: they did not understand why it had been requested or what relevance it had to the claim for damages.
151. Wiggin responded the same day: they maintained that the evidence should have been included in Ms Hoy’s witness statement, and ANL were plainly entitled to see it. The information supplied did not allow ANL to make any informed assessment of the merits or reasonableness of the costs claimed.
152. DLA came back on 15 September. The time spent was not easily divisible, because what they had generally done was to search to see if defamatory material about their client had appeared in Google searches against her current and former names, taking evidence of what was found, contacting Google with a request to remove the result, and contacting website owners, hosts and registrars. To produce the kind of information that ANL sought, and to calculate an approximate split of the total spent on each third party, would require detailed analysis and a significant amount of work. In any event, they did not consider the information relevant. In DLA Piper’s view, the information provided in Ruth Hoy’s witness statement was ‘more than sufficient for the court to be able to assess the damages payable’ to the claimant. I am afraid that I disagree, as I explain below.
153. Beyond the accrued figure as at 8 July 2016 (£35,455), Ms Hoy added a further £15,000, said to be an estimate of the claimant’s future costs of continuing with the operation, at £2,500 per month for the next six months. However, her witness statement of 31 October 2016 (which corrected her earlier arithmetic) showed that the costs incurred DLA Piper between July and October 2016 had in fact exceeded that estimate and reached a figure of £12,682.50. There had been republications on eveyo.com, nigeriadailynews, twimoview.news, blogpvan.com and townhousesnewjersey.us, with which DLA Piper had had to deal. That therefore took the accrued figure to £48,137.50, but in the light of the recent discovery of further full republications of both articles, Ms Hoy regarded her earlier estimate of the time needed to complete the work as being unrealistic, and took the view that as much as another six months or more of work might be needed, at £2,500 per month. The claim for future loss was therefore a further £15,000, which brought the total special damage claim to £63,137.50.
154. Some argument was advanced by reference to a document headed ‘Table of Internet Pages complained of’, which is a kind of Scott Schedule that lists and numbers 21 material internet pages. The various points made by the parties on this schedule are by no means all agreed, and it is not clear if (and if so, how) the parties can have expected the court, on the basis of very brief oral argument, to make findings about the reasonableness or otherwise of pursuing each of these, or the cost of doing so, or the recoverability of that cost, or whether any particular republication would satisfy the serious harm requirement of s1, Defamation Act 2013. It was not entirely unwelcome, in the circumstances, that the defendants, followed by the claimant, put in further written submissions on the issue following the oral hearing. The claimant went further, supporting its submissions with a fifth witness statement by Ruth Hoy dated 21 November 2016. None of this should have been necessary had the parties acknowledged in advance of the hearing that the sort of analysis which was bound to be required could not possibly have been achieved in the course of a day’s hearing, much of which was devoted to other aspects of the assessment of damages.
158. The claimant’s position is that the special damage claim was included in the claim form and in the Particulars of Claim, and ANL were on notice of it when making their offer of amends. When they were served with Ms Hoy’s witness statement of 8 July 2016 they had the particulars that they needed, and those particulars were updated on 31 October 2016. Had ANL wanted particulars earlier they could have asked for them, but did not. The steps taken by the claimant were, it is argued, reasonable ones to take in mitigation of the damage caused. Moreover, Mr Tomlinson argues, the case on serious harm made it clear that the damage caused by the articles complained of was likely to continue. The claim for special damage at paragraph 13 (set out above) picked up that plea, and on Mr Tomlinson’s case made it plain beyond doubt that the loss was continuing.
159. Mr Caldecott, for ANL, does not suggest that a claimant cannot in principle plead a continuing special damage claim with proper particulars, for example a case where a company is suffering a continuing loss. But the basis of such a claim must be fully and properly pleaded. He submits that there are a number of shortcomings in the way in which the claimant’s case is pleaded.
160. In particular, he objects to the reference to three websites ‘by way of example’: the claimant should have identified all known websites when the Particulars of Claim were served; he argues that paragraph 13 of the Particulars of Claim refers only to costs incurred, not costs to be incurred, and insists that there is no indication of any element of continuing loss; in any event, the claim is limited to ‘repetitions and republications by third parties of the words complained of and links to the same’: that cannot include taking lengthy and expensive steps to closing down Google results showing the claimant under her maiden name, because no part of her claim extends to mere mention of that name.
161. Mr Caldecott relies on the claimant’s undertaking at paragraph 13 to serve particulars of special damage when they are available: that was her obligation. It was not ANL’s obligation to seek further information. No particulars had been supplied by the date of the qualified offer of amends (27 August 2015), nor by the date of its acceptance (4 November 2015). Moreover, it is for the claimant to show that the republications repeat the words complained of, and that the work done by DLA Piper flows from work to take down such republications.
162. In any event, he submits, proper particulars of special damage would have gone beyond the details provided by Ms Hoy in her witness statements dated 8 July and 31 October 2016, and would have included the hours spent by DLA Piper staff, the rate per hour charged, and a summary of the actions taken, so that ANL could have judged whether the steps taken were reasonable and proportionate, whether the publications in question were ANL’s responsibility and whether they would have caused the claimant serious harm. He emphasises the need to show serious harm, because of course there can be no liability for republication of material related to the articles complained of unless the serious harm test under s1 Defamation Act 2013 is satisfied. The claimant cannot discharge her evidential burden in respect of each purported republication by asserting that it would be disproportionate to do so.
163. There are also issues as to remoteness. How far can it be said that ANL continue to be liable for republications of republications, or defamatory Google search results, many months after the articles were taken down? How far is any liability affected by the long delays in agreeing the statement in open court, which in my judgment cannot fairly be laid at ANL’s door?
164. It will be apparent that this aspect of the claim raised very difficult questions which were hardly apt to be determined as one part of a single day’s application, even with the aid of further written submissions. However, there are a number of principles which are uncontroversial.
165. A claimant may take steps to mitigate her loss, and to recover the cost of doing so from the defendant as special damage. The authorities show that the standard of reasonableness to which the victim of loss will be held, in seeking to mitigate, is not a high one. I have in mind the remarks of Lord Macmillan in Banco de Portugal v Waterlow  AC 452 at 506, spoken in the context of contract, but equally applicable to tort:
“Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment, the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticise the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of the duty owed to him has acted reasonably in the adoption of remedial measures and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.”
166. In principle, I can see no possible reason why a claimant should not take steps to take down reasonably foreseeable internet repetitions and republications of a defamatory article, and recover the reasonable cost of doing so from the defendant. I did not understand Mr Caldecott to suggest otherwise.
167. Nor is there any dispute that special damages are in principle recoverable in cases where an offer of amends has been made. Indeed, Mr Caldecott accepts that if a specific item of special damage, expressly pleaded with full particulars, has an element of continuing loss, the basis of which is itself clearly pleaded, the claimant should not be precluded from seeking to recover that loss.
168. However, he points out that there are constraints inherent in the offer of amends procedure, which limit the scope for continued proceedings and require claimants to make clear the full scope of their claim so that defendants can make an informed decision as to whether or not to make an offer of amends.
169. The limited scope for continued proceedings depends on s3(2) Defamation Act 1996, which provides that
“The party accepting the offer may not bring or continue proceedings in respect of the publication concerned against the person making the offer, but he is entitled to enforce the offer to make amends …”
170. So in Murray v Associated Newspapers Ltd  EMLR 23 at , Tugendhat J regarded an oral hearing of a defendant’s submissions that a claimant should be refused leave to make a unilateral statement as not being a normal procedure, and as coming close to the continuation of proceedings, contrary to s3(2). Once the offer is accepted the claimant may not, it seems, even be able to obtain an injunction to restrain further publication: Warren v Random House Group Ltd  QB 600 at .
171. In effect, Mr Caldecott submits, acceptance of the offer ‘freezes’ the action, subject only to the outstanding assessment of the pleaded claim for damages and to the court’s obligation to take into account under s3(5) the adequacy of the defendant’s implementation of the offer of amends, which plainly requires a consideration of steps taken after acceptance. That proposition seems to me to be correct.
172. The other constraint cited by Mr Caldecott is the obligation on claimants to make clear the full extent of their claim, so that defendants can offer to make amends on an informed basis. Eady J, who was an author of the Neill Committee’s July 1991 Report on Practice and Procedure in Defamation, which led to the enactment in 1996 of the offer of amends procedure, considered the issue in Abu v MGN Ltd  EWHC 2345 (QB);  1 W.L.R. 2201:
“ The Neill Committee recommendation was primarily directed towards providing a fair and reasonable exit route for defendants confronted with unreasonable demands from such manipulative or powerful claimants, who felt no doubt sometimes that they had them “over a barrel”. Yet it was naturally hoped that the “offer of amends” would help to focus minds on achieving realistic compromise, and thus reduce the cost, for a much wider range of litigants. Whether any such reform will succeed, however, must depend on whether the statutory provisions as drafted are attractive to use. In this instance, it must provide an incentive to defendants to make the offer and to claimants to accept. In either case, a rational decision can only be made if it is possible within reasonable limits to predict the range of outcomes to which one is committing oneself. For example, before making an offer a defendant1 needs to be able to assess the gravity of the impact of the libel upon the complainant’s reputation and feelings, and this will generally have to be done in the light of the particulars of claim and/or letter before action. It would not seem fair if an offer is made and accepted on one basis, and the complainant then reveals for the first time elements of pleadable damage not previously mentioned, such as for example that his marriage has broken down or that he has lost his employment.
 It would only accord with most people’s sense of justice if the offer of amends is construed as relating to the complaint as notified. Such an approach would also accord with the modern “cards on the table” approach to litigation generally and, more specifically, with the thinking behind the Defamation Pre-Action Protocol.”
173. To similar effect are May LJ’s words in Nail v News Group Newspapers Ltd  EWCA Civ 1708;  E.M.L.R. 12:
“ Both parties prepared bodies of evidence seeking respectively to aggravate and to mitigate the compensation. The judge either ignored or declined to admit most of this. He was right to do so. Speaking generally, there may of course be evidence from both sides relevant to the determination of compensation. But in principle it seems that a claimant should not normally be permitted to enlarge significantly pleaded allegations upon which the offer to make amends was made and accepted, for example by promoting a new case of malice. Nor should a defendant, who has made an unqualified offer which has been accepted, be permitted to water down significantly the pleaded allegations. Claimants should therefore plead the full substance for which they seek redress: defendants who wish to make amends for significantly less than that full substance should make appropriate qualifications to their offer.”
174. It is worth noting also Gray J’s approach in Loughton Contracts plc v Dun & Bradstreet Ltd  EWHC 1224 (QB), a case where a claim for special damages was envisaged but had not been pleaded. Gray J found at  that ‘the procedural code laid down in sections 2 to 4 of the Defamation Act 1996 is a relatively strict one and that the scope for enlarging the claim for damages after the offer of amends has been accepted is and should remain limited in the way suggested in Nail‘. He also pointed out the unfairness for a defendant, having made an offer of amends on the basis that a claim for damages is confined to that set out in the claimant’s pleading, to be faced at a later date, and after committing to the offer of amends route, with a very much more substantial claim for damages. Similarly in Angel v Stainton  EWHC 637 (QB) at  Eady J stated that it was well known that ‘both claimants and defendants should put their cards on the table before an offer of amends is accepted. It is unlikely that permission will be given to introduce new material, on either side, once the parties have committed themselves to this statutory process’.
175. In my judgment there is no pleaded claim for continuing special damage. There is no reference in the special damage claim (paragraph 13) to continuing loss. In the case on serious harm, the claimant pleads (paragraph 10(3)) that the presence on the internet of the words complained of means that further serious harm to the claimant’s reputation is likely in the future, and (paragraph 10(4)) that the words complained of have been repeated and republished by other websites, ‘so increasing the scope of publications here and the serious harm to the claimant’s reputation for which the defendants … are responsible’. Those averments are designed to enable the claimant to surmount the preliminary hurdle put in place by s1, Defamation Act 2013, namely that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the claimant’s reputation. They are asserting that the current presence on the internet of the words complained of, and the repetition and republication of those words which have taken place (of which three examples are given), have the effect that there will be further serious harm, scilicet from further publication of those existing internet postings. They do not allege that further republications are likely, let alone that the claimant intends to seek to recover the cost of taking down such republications.
176. If, as Mr Tomlinson would say, that is a narrow construction of the claimant’s pleaded case, it surely accords with the requirement that claimants should plead the full substance for they seek redress, so that defendants can decide on an informed basis whether or not they should make an offer of amends. I therefore conclude that the special damage claim must be taken to be limited to that which was notified in the Particulars of Claim, namely the cost of removing from the internet the repetitions and republications complained of at paragraph 13 by reference to paragraph 10(4).
177. The only particulars that have been supplied by the claimant are the rolling monthly invoices submitted by DLA Piper. On 2 September 2016 Wiggin asked for a breakdown of the costs involved in dealing with the original three websites and others, but (see  above) the request was refused. Mr Caldecott submits that any claim for the cost of removing republications must be reasonable and proportionate and must show a reasonable basis for assuming that the serious harm requirement would be satisfied. It could not extend to work done merely (for example) to remove mention of the claimant’s former name. There should have been a pleaded case as to the nature and foreseeability of each republication, the basis of ANL’s liability, the harm that would be likely to be caused by it, and the cost incurred in dealing with it. The rolling monthly invoices show only the billed time that DLA Piper spent on the work. They do not provide any basis on which the court can assess whether the work done was reasonable, necessary or proportionate.
178. Mr Tomlinson objects that if Mr Caldecott was right, he would have to plead particulars of serious harm in respect of every republication, which might involve hundreds of pages. The pleading obligation must be limited to that which is proportionate.
179. It seems to me that this argument is over-stated. Even if in principle it is permissible, as in my view it certainly is, for the claimant to recover the reasonable cost of mitigating the damage done to her by removing republications for which ANL is liable and which are likely to cause her serious harm (which would entail showing at least some readership in this jurisdiction), it would not have been difficult to plead continuing loss so as to put the defendants on proper notice, and to have given proper particulars of the republications relied on, the basis on which the s1 serious harm requirement was satisfied, and of the discrete cost of dealing with each republication. As matters stand, even leaving on one side questions of remoteness, and even of likelihood of serious harm, it is quite impossible for the court to assess the recoverable cost of removing damaging and defamatory republications for which ANL was in truth liable. It simply is not enough, in my judgment, for the claimant to assert in broad terms that her solicitors’ monthly costs of following up references to the claimant on the internet should be allowed.
180. My provisional conclusion, therefore, is that the special damage claim should be dismissed, even to the limited extent that it is properly advanced. Mr Caldecott contends that it is too late to order a separate assessment of special damage. Moreover, the cost of further proceedings might well be disproportionate to the amount likely to be recovered, so that the process would not be worth the candle, as well as arguably running counter to the policy considerations underlying s3(2) of the 1996 Act. However, I will not shut the claimant out from at least applying to go down that road, if so advised. But if she were to be permitted to do so, the assessment would have to be limited to the claimant’s pleaded case.
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