(67) I strike out this paragraph, and the supporting Response, for reasons that resemble those I have just given (…): I am not yet convinced that the central proposition relied on by the claimant is wholly immaterial to her case, or necessarily illegitimate; but I am convinced that it cannot be legitimate for the case to remain as it presently stands.
(69) A claimant cannot, as a matter of well-established principle, use a claim for aggravated damages as a means of obtaining damages for torts other than the one(s) sued upon; nor may a claimant plead and seek to prove a case about extraneous conduct of the claimant that tends to establish other causes of action, without permitting the defendant to plead and seek to establish a defense to such a cause of action.
(70) The claimant could not hope to use paragraph 19.8 as a vehicle to recover damages for libel or misuse of private information in these other articles, and I accept that this is not the intention behind this paragraph. But I do consider it to be highly unsatisfactory.
(72) First, that the pleading of the case is wholly inadequate. Much more detail would be required to enable the pleaded claims to be fully understand and dealt with. Secondly, and crucially, that the costs and time that would be required to investigate and resolve the factual issues raised by the case as currently pleaded bear no reasonable relationship of proportionality with the legitimate aim of recovering some additional compensation for emotional harm. Those conclusions are enough to justify my decision to strike out the passages objected to.
(74) The difficulties with this aspect of the case cannot be solved, however, by giving more details of the 9 articles, let alone more details of additional articles. That would tend instead to exacerbate the problems. The claimant is of coure entitled to give evidence that the publication complained of caused her distress, and the principle reasons for that feeling need to be identified so that the defendant can challenge her case in that respect (…) But any such case must, on each side, be pleaded clearly and concisely, and conducted proportionately. The case as presently pleaded is a long way from that.
(77) There also remain issues of principle. It is clear, in my judgment, that aggravated damages cannot be recovered for distress caused by conduct which is separate and distinct from that which is alleged to constitute the tort. There must be a genuine and close relationship between the tort and the matters relied on as aggravation.
(78) Here, the claimant relies on 9 articles that are not sued upon, to support a claim for aggravated damages for distress caused by the 5 publications sued upon. The 9 articles lack any genuine or close connection with the torts complained of.
(79) My provisional albeit somewhat tentative view is that the only necessary, and the only legitimate, averments at the stage of PoC are that the claimant was distressed by the publications that are complained of as tortious because she (reasonably) considered them to be intrusive and offensive, fase and/or misleading. But in view of the points I have already made, a decision on these issues can be reserved to a later occasion, if it becomes necessary.
