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Cassell & Co Ltd v Broome (No 1) [1972] UKHL 3 (23 February 1972)

Cassell & Co Ltd v Broome (No 1) [1972] UKHL 3 (23 February 1972)


Citation:Cassell & Co Ltd v Broome (No 1) [1972] UKHL 3 (23 February 1972)

Link to case on WorldLII.

Rule of thumb 1: When can aggravated damages be claimed? When there is a clear & flagrant breach of legal provisions.

Rule of thumb 2: If a person is benefitting financially from deliberately breaking the law what happens? They have to pay exemplary damages. These apply over and above the normal damages.

Rule of thumb 3: What happens if a person deliberately writes defamatory/libellous lies about another person? Aggravated damages rather than just compensatory damages can be claimed.

Rule of thumb 4: What happens if you are in the lower levels of the Court system, and there is a case with very similar facts from a more senior Court? The lower Court must apply the precedent set by the more senior Court – this is the essence of the common law system.

Background facts:The basic facts of this case were that Broome was a high ranking Captain in the British navy. Whilst Broome was young there was a ship he was on which was attacked. The actions of Broome’s superiors were not good, but Broome was not a senior person at this time and had no influence over the actions taken. Broome at a later point was subsequently promoted. David Irving, a journalist, found out that Broome had been on this ship and sought to criticise him & the mission heavily - publishers did not widely publish this book because it was largely deemed by them to be defamatory – the criticisms of Broome were completely unfair considering that he had no seniority or influence. However, when Broome sought an injunction over this, the book was published in paperback form because the publishers, Cassell, knew that the trial would gather it lots of publicity and lead to sales.

Parties argued:

Judgment:

The Court held that in these circumstances, where a person breaks the law towards another person with impunity to profit from doing so, then the person who suffers damage as a result of having the law broken with impunity towards them is entitled to exemplary damages, then they are entitled to damages, and this falls under the category of defamation. The Court further held that where a legal provision, such as a defamation law, is flagrantly breached causing outrage and indignation, then aggravated damages are to be awarded over and above normal solatium values. In other words, there is normal stress and inconvenience/solatium, and then another category for indignation. In short, the Court affirmed that exemplary damages and aggravated damages are not penalty damages, but objectively justifiable and workable damages. The Court further held that lower Courts are not allowed to disobey the decisions of more senior Courts, like the decision in Rookes v Bernard was criticised by Justice Denning as per incuriam (through lack of care), and it was refused to be applied - the Court affirmed this case and affirmed that Judges in the lower Courts cannot criticise the logic of higher Courts – it must be a Judge in the same level of Court which criticises a Judgment as per incuriam and refuses to apply it.

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Ratio-decidendi 1:

‘What is necessary is that the tortious act must be done with guilty knowledge for the motive that the chances of economic advantage outweigh the chances of economic, or perhaps physical, penalty... …it is nothing to the point to say that if the fraud had succeeded the profit would have been far larger than the compensatory damages are when it failed.’ Lord Hailsham

Ratio-decidendi 2:

‘4. The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept (loyally) the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young v. Bristol Aeroplane Company [1944] K.B. 718 offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom. Even this House, since it has taken freedom to review its own decisions, will do so cautiously… 20 Although, as will be seen, I prefer much of what Lord Devlin said on the subject of exemplary damages to what has been said by his subsequent critics, and propose to follow it, the decision in Rookes v, Barnard must be viewed in the light of these conclusions. It is not verbally inspired. But it is a careful and valuable decision not lightly to be set aside. WHERE SOLATIUM IS ENOUGH The true explanation of Rookes v. Barnard is to be found in the fact that where damages for loss of reputation are concerned, or where a simple, out- rage to the individual or to property is concerned, aggravated damages in the sense I have explained can, and should in every case lying outside the categories, take care of the exemplary element, and the jury should neither be encouraged nor allowed to look beyond as generous a solatium as is required for the injuria simply in order to give effect to feelings of indigna- tion. It is not that the exemplary element is excluded in such cases. It is precisely because in the nature of things it is and should be included in every such case that the jury should neither be encouraged nor allowed to look for it outside the solatium and then to add to the sum awarded another sum by way of penalty additional to the solarium. To do so would be to inflict a double penalty for the same offence. The surprising thing about Rookes v. Barnard is not that Lord Devlin restricted the award of exemplary damages viewed as an addition to or substitution for damages by way of solatium to the three so called categories, but that he allowed the three so called categories to exist by way of excep- tion to the general rule. That he did this is due at least in part to the fact that he felt himself bound by authority to do so, but partly also because he thought that there were cases where, over and above the figure awarded for loss of reputation, for injured feelings, for outraged morality, and to enable a plaintiff to protect himself against future calumny or outrage of a similar kind, an additional sum was needed to vindicate the strength of the law and act as a supplement to its strictly penal provisions—(cf. what he says at pp. 1226, 1230 of the report)…. IS ROOKES v. BARNARD UNWORKABLE? I confess I am quite unable to see why such a view of the matter is " un- " workable ". As I have already pointed out, it has been worked in fact for nearly eight years.’ Lord Hailsham

Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.