Contrary to the Defence of Justification, the defence of partial justification may only be used for the mitigation of damages as opposed to establishing a complete defence to a claim for defamation. The main difference between the defence of justification and the defence of partial justification is that the defence of justification requires the defendant to prove that all of the imputations complained of were substantially true, whereas the defence of partial justification only requires the defendant to prove that at least one of the imputations complained of was substantially true.
Substantially True
Not unlike the defence of justification, the common law defence of partial justification cannot be satisfied unless the defendant is able to establish the truth or substantial truth of one or more if the imputations complained of. Schedule 5 of the Defamation Act 2005[1] (‘the Defamation Act’) provides the following definition of ‘substantially true’:
“substantially true means true in substance or not materially different from the truth”.
For more information on the requirements to prove ‘substantial truth’, see our article on “The Defence of Justification”.
Mitigation of Damages
Where the publication complained of contain multiple distinct imputations and the defendant is only able to establish that some of the imputations are substantially true, the defendant will still have a partial defence to the part of the claim that is found to be substantially true under the defence of partial justification[1]. However, the defence of partial justification will only serve to mitigate the damages the defendant may otherwise have been liable for if it had been found that no part of the publication was true or substantially true. Even where the defence of partial justification is established, the defendant may still be held liable in defamation for the remainder of the publication that is found not to be substantially true, and as such, the defence of partial justification will not provide a complete defence to a claim for defamation in and of itself.
Where the defence of partial justification applies, the damages awarded to the plaintiff should be reduced accordingly so as to compensate for the mitigating impact of the imputations found to be true or substantially true[2].
In the well-known case of Wilson v Bauer Media (No 6)[3], the defendant published eight defamatory publications about the plaintiff (actress Rebel Wilson). The defendant pleaded partial justification to some of the imputations complained of but was unable to establish the truth or substantial truth of a number of the other imputations contained in the plaintiff’s pleadings[4]. The court held that the defendant was able to rely on the defence of partial justification with respect to those imputations that they could prove were substantially true, which server to mitigate the damages awarded to Ms Wilson.
Contact Harris Defamation Lawyers
If you have been accused of publishing defamatory statements where some of the statements complained of were true or substantially true, you may have a defence under the defence of justification.
Contact Harris Defamation Lawyers for a no-cost, obligation-free consultation to discuss your legal rights and options.
