Aggravated and Exemplary Damages in Defamation Cases

Standard defamation damages compensate for the injury to reputation and associated distress. But when the defendant's conduct is particularly egregious, the court can award aggravated damages (to reflect the additional hurt caused by malicious behaviour) and, in exceptional cases, exemplary damages (to punish the defendant and deter others).

Aggravated Damages

Aggravated damages are awarded when the defendant's conduct increases the injury to the claimant beyond the defamation itself. They remain compensatory in nature — they compensate for the extra hurt and distress caused by the manner of the defamation or the defendant's subsequent behaviour.

Conduct that may justify aggravated damages includes:

• Malice — the defendant knew the statement was false or was recklessly indifferent to its truth
• Persistence — continuing to publish after being informed the statement is false, or refusing to apologise
• Repeat publication — deliberately republishing the defamatory content to maximise harm
• Conduct during litigation — pleading a truth defence without genuine evidence, or making insulting allegations in court documents
• Motivation — publication driven by spite, revenge, or commercial gain rather than legitimate purpose

Aggravated damages are awarded on top of general damages. In practice, they can increase the total award by 50–100% or more.

Exemplary Damages

Exemplary (or punitive) damages go beyond compensation — they are designed to punish the defendant and deter similar conduct. They are available in defamation cases only in very limited circumstances, as established in Rookes v Barnard [1964]:

• Oppressive, arbitrary, or unconstitutional action by government servants — public officials who abuse their power through defamatory publications
• Calculated publication for profit — where the defendant has calculated that the profit from the defamatory publication will exceed any damages they might have to pay. This is most relevant to media organisations and publishers

Exemplary damages are rarely awarded in practice and require clear evidence of the defendant's cynical calculation or abuse of power.

Quantum: How Much?

Awards vary enormously depending on the facts, but for context:

• General damages for serious defamation typically range from £10,000 to £300,000
• Aggravated damages can add 25–100% to the general damages figure
• Exemplary damages are exceptionally rare but have been awarded at levels intended to sting the defendant — sometimes exceeding the compensatory award
• Special damages (quantifiable financial losses) are unlimited and can dwarf general damages in commercial cases

The Court of Appeal has provided guidance that defamation damages should be proportionate and broadly comparable to personal injury awards — this has generally constrained the upper end of general damages awards.

Practical Implications for Claimants

If you're bringing a defamation claim where aggravated or exemplary damages may be appropriate:

• Document the defendant's conduct — keep records of every instance of republication, refusal to apologise, or malicious behaviour
• Plead aggravated damages specifically — they must be claimed in the particulars of claim with supporting facts
• Exemplary damages require a high bar — only pursue this claim if the evidence clearly supports calculated profit-seeking or abuse of power
• Consider the tactical impact — claiming aggravated damages can incentivise settlement, as defendants wish to avoid findings of malice

Key Takeaways

• Aggravated damages compensate for extra distress caused by the defendant's malicious conduct
• Exemplary damages punish and deter — available only in limited Rookes v Barnard categories
• Aggravated damages can increase awards by 50–100%+ above general damages
• Both must be specifically pleaded with supporting evidence
• Document all aggravating conduct from the outset