consideration: first, whether it is legally possible to award no damages instead of nominal or derisory damages; secondly, the relevance of an English line of authority relied upon by the respondents as to an alleged abuse of process on the part of Mr Lehrmann; and thirdly, the principled approach to dealing with evidence of misconduct on the part of Mr Lehrmann in the counterfactual (that is, following the rejection of the defence of substantial truth for the reasons assumed).
INo Damages or Nominal Damages
981 At common law, once an applicant has proved the publication of a libel, and in the absence of a successful defence, an entitlement arises to an award of damages, even if they are nominal. The presumption of damage reflects the emphasis that the common law of defamation gives to protecting reputation.
982 In Palmer v McGowan (No 5) (at 727 [502]), I turned to the question of the proper approach when having considered the three purposes of an award of compensatory damages, the conclusion is reached that no substantial damages should be awarded and I said (at 727–728 [503]–[506]):
[503] … The best statement as to the meaning and incidence of nominal damages is given by Lord Halsbury LC in The Mediana [1900] AC 113 (at 116):
"Nominal damages" is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed.
[504] "Nominal damages", remarked Maule J in Beaumont v Greathead (1846) 135 ER 1039 (at 1041), "means a sum of money that may be spoken of, but that has no existence in point of quantity". The authorities reveal that after an early period in which the amount could be miniscule, such as a farthing in Mostyn v Coles (1862) 7 H & N 872; (1862) 158 All ER 723, in England, the amount eventually crystallised at the figure of £2, although £1 was sometimes awarded. In the last half the twentieth century, the amount buffered between £2 and £5, but the new century has seen a reversion to £2, which amount has said to be "the traditional sum": Village Investigations Ltd v Gardner [2005] EWHC 3300 (QB) (at [77] per Seymour J). Although, again, £1 has sometimes been awarded.
[505] A distinction has sometimes been drawn between "nominal damages" and "contemptuous damages" or "derisory damages", connoting damages in the amount of the lowest coin of the realm. Two key points of distinction between nominal damages and contemptuous damages appear to be: first, that contemptuous damages may be awarded in respect of any tort, whether actionable per se or not, and secondly, contemptuous damages are
