Dear colleagues

As is common in arguments for exemplary damages, Hugh Tomlinson writes of some ideal form of these damages in which they are consistently distinguished from 'ordinary' awards, hit only those who deserve to be hit, and are rationally quantified. In the actual law, none of these things happen. I do not see how this can be denied. It certainly can't be denied by Mr Tomlinson just saying that these problems will not arise.

Best wishes

David Campbell

David Campbell, BSC(Econ), LLM, PhD, FCI(Arb)
Professor of International Business Law

School of Law
Liberty Building
University of Leeds
LEEDS
LS2 9JT
UK

tel: [+44] (0) 113 343 7041
fax: [+44] (0) 113 343 5056
email: i.d.campbell@leeds.ac.uk<mailto:i.d.campbell@leeds.ac.uk>

http://www.law.leeds.ac.uk/about/staff/d-campbell.php

________________________________
From: Andrew Tettenborn [A.M.Tettenborn@swansea.ac.uk]
Sent: 27 March 2013 08:24
To: Hedley, Steve
Cc: obligations@uwo.ca
Subject: Re: "Why extending exemplary damages is the best approach for public interest journalism"

Much though I disapprove of Hacked Off as an organisation backed by the great, good, rich and powerful, Hugh Tomlinson is right about defamation. There isn't much threat here: for punitives, there would presumably have to be knowledge, or the next best thing, that what was said wasn't true; and there's not much excuse for publishing in the light of that.

Punitives, in my view, are much more worrying as regards privacy. Privacy has already expanded much too far as a high constitutional principle, courtesy of ECHR Art 8 (examples being Campbell [2004] 2 A.C. 457, Murray [2007] EWHC 1908; [2007] E.M.L.R. 22 (Ch) and Mosley [2008] EWHC 1777 (QB); [2008] E.M.L.R. 20). It's an area where there is much more room for disagreement as to what is right and what isn't: what people should have to put up with and what they shouldn't. To say there might be a punitive award here would, I suspect, have a considerable chilling effect.

Andrew


On 27/03/13 07:42, Hedley, Steve wrote:
Only a sub-issue in the ongoing Leveson farrago, but perhaps of interest to ODG members.

"There has, over the last few months, been widespread criticism from the press of Lord Justice Leveson’s recommendations about exemplary damages. These recommendations have been widely misreported and misunderstood. Many have been misled by words like “punitive” and “fines” into thinking that such damages would be imposed as a matter of routine on publishers who make mistake ..." (more<http://inforrm.wordpress.com/2013/03/27/why-extending-exemplary-damages-is-the-best-approach-for-public-interest-journalism-hugh-tomlinson-qc/>)

[Inforrm's Blog, 27 March]

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Andrew Tettenborn
Professor of Commercial Law, Swansea University

School of Law, University of Swansea
Richard Price Building
Singleton Park
SWANSEA SA2 8PP
Phone 01792-602724 / (int) +44-1792-602724
Fax 01792-295855 / (int) +44-1792-295855


Andrew Tettenborn
Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe

Ysgol y Gyfraith, Prifysgol Abertawe
Adeilad Richard Price
Parc Singleton
ABERTAWE SA2 8PP
Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855




Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)






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