Defamation cases involving the dead

LoonyLovegood

Reading through some torts stuff and I saw that the Defamation Act 2009 says that cases can continue through the courts if one of the parties has died after the case has been filed. Has it ever happened before? It says that special damages would be provided as a remedy, I was wondering what these damages could be?

Mr. Incognito

You cannot defame the dead.

ohnonotgmail

Mr. Incognito wrote: »

You cannot defame the dead.

but you can defame somebody who is alive who then dies before the case concludes in court. which was the question in the OP.

Mr. Incognito

ohnonotgmail wrote: »

but you can defame somebody who is alive who then dies before the case concludes in court. which was the question in the OP.

In the words of John Cleese "What's the point"

If the defamed is dead they are not entitled to damages.

You may get an apology or an admission that they were defamed but that's it.

It would be an exceptionally expensive apology.

ohnonotgmail

Mr. Incognito wrote: »

In the words of John Cleese "What's the point"

If the defamed is dead they are not entitled to damages.

You may get an apology or an admission that they were defamed but that's it.

It would be an exceptionally expensive apology.

i think that is what the op is trying to establish. do you have anything to support that?

Mr. Incognito

ohnonotgmail wrote: »

i think that is what the op is trying to establish. do you have anything to support that?

The Act

39.— (1) Section 6 of the Civil Liability Act 1961 is amended by the insertion of the following definitions:


“ ‘ Act of 2009 ’ means the Defamation Act 2009;


‘ aggravated damages ’ has the same meaning as it has in the Act of 2009;


‘ punitive damages ’ has the same meaning as it has in the Act of 2009.”.


(2) Section 7 of the Civil Liability Act 1961 is amended by—


(a) the insertion of the following subsection:


“(1A) On the death of a person on or after the commencement of section 39 (2) (a) of the Act of 2009, a cause of action for defamation vested in him immediately before his death shall survive for the benefit of his estate.”,


and


(b) the insertion of the following subsection:


“(2A) Where by virtue of subsection (1A) of this section, a cause of action for defamation survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include general damages, punitive damages or aggravated damages.”.

In other words monetary damages are out the window.

Special damages may be whatever the court directs in the circumstances but beyond an apology or a token statement I cannot think what else would apply.

Pat Mustard

LoonyLovegood wrote: »

It says that special damages would be provided as a remedy, I was wondering what these damages could be?

General damages refer to the damages for pain and suffering or in the case of defamation, loss of reputation. As pointed out by Mr. Incognito, general damages for defamation cannot be claimed after the death of the person who was defamed.

Special damages compensate for monetary loss such as loss of earnings and out of pocket expenses. These expenses can still be claimed in the scenario that has been outlined. However, unless these are very substantial expenses, it may not be worth proceeding with the litigation, ultimately.

NUTLEY BOY

It is a classical example of the principle of actio personalis moritur cum persona i.e. a personal right of action dies with the plaintiff.

Thus, the now deceased plaintiff's entitlement to general damages dies with him.

As pointed out by others and as specified in the act a right to continue the claim for special damages continues but for the benefit of the deceased's estate.

For example, a defamatory remark could have caused a substantial loss of earnings to date to the now deceased plaintiff by virtue of damage to professional reputation. I would expect that to survive for the benefit of the estate. Proof is another matter !

LoonyLovegood

That's what I was thinking, it just seems odd to call it "special damages" when it's simply an apology. Still, it's not for me to reason why!

hullaballoo

Special damages can be quite significant. In theory anyway. In the vast majority of cases, they won't be anything like the general damages but say, for example, a famous film actor loses out on a multi-million part because of the defamation, that should be recoverable by the estate.

Nokia6230i

Clicked on this thinking it might've referred to comments regarding the death of two men yesterday; comments under a newspapers report where lit on by relatives of the men & those posting not so nice comments regarding their passing & issues over what was or wasn't recovered from crash site & said folk were being accused of defamation.

The phrase "you can't defame the dead" sprang to mind but no way was I entering into that comments section......!