Exclusively Online December 2021
It has often been said that a person’s reputation is his most valuable asset. That may well be true but attempting to put a dollar figure on that reputation or its injury can be difficult.
From time to time, parties to a defamation action would attempt to assist the Court on the issue of quantum by adducing evidence on reputation. When that happens, the Court is often caught in a dilemma. On the one hand, that kind of evidence should be welcomed because damages cannot be assessed in a vacuum. On the other hand, too much of that evidence may render the trial unmanageable. How should the balance be struck?
Over 139 years ago, in Scott v Sampson (1882) 8 QBD 491, two judges in England came up with a rule. In gist, the rule said “general evidence of reputation” should be admissible, but evidence of particular facts tending to show the character or disposition of the claimant should not be. The rule was controversial. Successive law reform committees in England, including the Porter Committee (1948), recommended its abolition by statute. Whilst the recommended statutory abolition never happened, subsequent case law made inroads into the rule.
The first significant inroad was created by Lord Radcliffe’s speech in Speidel v Plato Films [1961] AC 1090 (at 1131), where His Lordship made the very powerful point that “general evidence of reputation” may of course include “evidence citing particular incidents, if they are of sufficient notoriety” because particular incidents, if widely reported, would be “the best available evidence of a plaintiff’s reputation”. In Lord Radcliffe’s view, there was no advantage in “excluding the better form of evidence in favour of the worse”. In Dingle v Associated Newspapers [1964] AC 371 (at 398), Lord Radcliffe repeated the same view by saying “in a proper case a man’s bad reputation can be proved by giving evidence of some incident of notoriety”. The exact status of Lord Radcliffe’s dicta in those two cases was unclear.
The second significant inroad was created by May LJ’s speech in Burstein v Times Newspapers Ltd [2001] 1 WLR 579, where His Lordship reviewed previous judgments on the rule and came to the view that none of them meant to exclude “evidence of particular facts directly relevant to the context in which a defamatory publication came to be made”.
That last development effectively created what is now called “the Burstein modification”, which shifted the Court’s focus away from the distinction between what is general and what is specific, and towards the more sensible test of whether the evidence is directly relevant to the context. In Turner v News Group Newspapers Ltd [2006] 1 WLR 3469, the English Court of Appeal reaffirmed the Burstein modification.
Locally, in Goodwell Property Management Limited v Lee Hung Sing [2019] HKCA 634, our own Court of Appeal had a chance to consider the above. There, the plaintiff company (“Goodwell”) started a libel claim in respect of 4 letters (“the Letters”), copies of which were inserted into 924 letter boxes in a residential estate in Kwai Chung called “The Apex”. The publication took place in 2016. By an averment which the Court of Appeal regarded as one with little, or no, relevance, Goodwell asserted it enjoyed a good reputation in that it had, inter alia, obtained an Integrated Management System accreditation back in 2007 (§6).
According to the Court of Appeal, to “compound the indulgence in the unnecessary and/or the irrelevant on pleading”, Goodwell then filed a witness statement which spent 6½ pages setting out numerous awards and accreditations received by Goodwell, many of which did not seem to have anything to do with Goodwell’s estate management service or its quality. That provoked counter-allegations of Goodwell’s bad reputation from the defendants, who filed supplemental witness statements to set out those counter-allegations. Some parts of those statements were objected to.
Having examined those parts of the supplemental witness statements being objected to, the Court of Appeal expunged all of them. In gist, the Court of Appeal followed the approach in Burstein and focused on “the context in which the Letters came to be published in 2016”. With that in mind, the Court of Appeal considered the removal of Goodwell as manager by the owners of two different residential estates, one in Tai Hang and one in Kowloon Tong, in 2010, as irrelevant. In so saying, the Court of Appeal emphasized the readers of the Letters were limited to those within The Apex. Only Goodwell’s reputation within The Apex would be relevant to the issue of quantum. The Court of Appeal made it quite clear that had the publication of the Letters been “territory-wide”, different considerations may apply.
Although the Court of Appeal ended up expunging the objectionable materials as requested, it also urged the parties to “cease indulgence in any further interlocutory manoeuvres and to just proceed to trial” and to rely on the trial judge to “manage the trial with a firm hand” instead. To put this remark in context, by the Court of Appeal’s calculation of dates, the parties had wastedmore than a year dealing with these interlocutory arguments and their appeal, and the Court of Appeal suspected the legal costs incurred by the parties “well exceeded the amount of recoverable damages even if Goodwell should prevail at the end of the day”.
Unless a litigant brings the point higher up, or there is statutory intervention, Hong Kong Courts are quite likely to continue to adopt the Burstein approach in dealing with evidence of reputation in defamation litigation. More importantly, however, the Court of Appeal’s observations in Goodwell should serve as good reminders to all litigants and their lawyers that interlocutory applications and their appeals can be both tremendously time consuming and costly. In some cases, it may well be wiser for the parties to just proceed to trial and leave everything to the firm hand of the trial judge.
Barrister, Jason Pow SC’s Chambers
Kenneth K Y Lam is a Barrister in private practice. Called to the Bar in 2004, he sat as a Deputy District Judge, and as a High Court Master. He is a Fellow of the Hong Kong Institute of Arbitrators, and a member of Jason Pow SC’s Chambers. He acted for the successful plaintiff in the Social Media Libel case of Chow Wing Kai v Liang Jing [2021] 2 HKLRD 1189. He is recognized as a Leading Junior of the Hong Kong Bar by Legal 500 (Asia Pacific, 2022).
http://www.hk-lawyer.org/content/adducing-evidence-reputation-defamation-actions-what-are-rules
Hong Kong Defamation Law 