Scott v Sampson (1882) 8 QBD 491

Key Point

  • The bad reputation of a claimant in a defamation suit can be pleaded as mitigation for damages
  • This case established the which forms of evidence of the claimant’s bad reputation is admissible:
    • Evidence of general bad reputation is admissible
    • Evidence of rumours that the claimant had done what was alleged in the defamatory statement is inadmissible
    • Evidence of particular acts of the claimant showing his character is inadmissible

Facts

  • The plaintiff (P) was a known dramatic critic working for “The Daily Telegraph” newspaper and was a proprietor of a monthly magazine called “The Theatre”
  • The defendant (D) was the proprietor and publisher of a weekly paper called “The Referee”
  • P brought an action for a libel published by D of the P, alleging that the P had extorted a sum of 500l from Admiral Carr Glyn, by threatening to publish defamatory matter of a late actress
  • D pleaded mitigation of damages due to the bad reputation of the P
  • D sought to adduce evidence of P’s bad reputation in the form of:
    1. evidence of particular acts of P showing his bad character;and
    2. evidence of rumours of the same effect as the libel being complained of
  • Such evidence was rejected by the Lord Chief Justice and not considered by the jury, which held in favour of P
  • D appealed on the basis that such evidence should be admissible and considered by the jury

Held (High Court)

  • Those two forms of evidence are inadmissble for proving the bad reputation of P in mitigation

Cave J

Principle of mitigation for bad reputation

  • ‘Speaking generally, the law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action. The damage, however, which he has sustained must depend almost entirely on the estimation in which he was previously held. He complains of an injury to his reputation; and it seems most material that the jury who have to award those damages should know, if the fact is so, that he is a man of no reputation.’: p. 503

Admissibility of general evidence of bad reputation

  • ‘On principle, therefore, it would seem that general evidence of reputation should be admitted, and on turning to the authorities it will be found that it has been admitted in a great majority of those cases and that its admission has been approved by a great majority of the judges who have expressed an opinion on the subject’: p. 503

Admissibility of rumours

  • ‘It would seem that on principle such evidence is not admissible as only indirectly tending to affect the plaintiff’s reputation. If these rumours and suspicions have, in fact, affected the plaintiff’s reputation, that may be proved by general evidence of reputation. If they have not affected it they are not relevant to the issue’’: 504
  • ‘Unlike evidence of general reputation, it is particularly difficult for the plaintiff to meet and rebut such evidence; for all that those who know him best can say is that they have not heard anything of these rumours. Moreover, it may be that it is the defendant himself who started them’: 504

Admissibility of particular acts

  • ‘Both principle and authority seem equally against its admission … It would give rise to interminable issues which would have but a very remote bearing on the question in dispute, which is to what extent the reputation which he actually possesses has been damaged by the defamatory matter complained of.’: p. 505

Commentary

  • Best evidence of general bad reputation is generally given by witnesses who know the claimant well
    • “In order to show that a man has a bad reputation, you should call those who know him and have had dealings with him. They are in a position to judge his worth. If they consider he has a bad reputation, they are very likely right, and he has nothing very much to lose. If it is a settled reputation which has been accumulated over a period by a series of misdeeds, they will know of it. If it is a reputation which has been destroyed at one blow by a single conviction, they will know of it too. Either way, if you call those who know him well, you are likely to get at the truth … But if you go beyond these, you immediately get into the realms of reports and rumours, often enough spread by busybodies who know nothing of the man, or indulged in by newspapers for the benefit of their circulation …”: Lord Denning in Associated Newspapers Ltd v Dingle [1964] A.C. 371 at 402.