DefamationMitigation of libel damages - evidence of claimant's conduct - facts relevant to background context admissibleBurstein v Times Newspapers Ltd: CA (Aldous and May LJJ andSir Christopher Slade):20 December 2000The claimant composer brought libel proceedings against a newspaper in respect of an article which falsely stated that he had organised hecklers to wreck performances of modern atonal music.The defendants' pleaded a defence of fair comment and in support alleged, among other things, that three years before the article was written the claimant had associated with a group called 'The Hecklers'; that the group had encouraged the public to boo at the end of the performance of an opera; and that the claimant had been present at the performance and had booed.The judge struck out the defence, ruled that the facts pleaded in support of it could not be relied on in reducing the claimant's damages, and dismissed the defendants' application for summary relief.

The defendants appealed the ruling and the jury's subsequent award of 8,000 damages.Justin Rushbrooke (instructed by Alastair J Brett) for the defendants.

David Price, solicitor-advocate (of David Price & Co) for the claimant.Held, dismissing the appeal, that the admissibility of evidence was essentially a procedural question and, having regard to the overriding objective in rule 1 of the Civil Procedure Rules 1998 of enabling the court to deal with cases justly by active case management, particular facts concerning the claimant's general reputation, character or disposition which were directly relevant to the background context in which the defamatory publication came to be made ought to have been admitted in evidence; but that if evidence of the facts relied on had been adduced it would not have affected the jury's award.