1066 A further complication is that the reputational damage caused by the publication of the Maiden article, or the Project programme, came to be swamped by the avalanche of reputational damage after Mr Lehrmann was charged and named publicly. I accept the submission of the respondents that this was when the real damage to Mr Lehrmann's reputation was caused.
1067 It follows from these complications, that the task of identifying causally related reputational damage caused by the Project programme is not straightforward.
1068 That said, as Mr Lehrmann correctly notes, the Project programme drove the allegations home on 15 February and contained the emotional account of Ms Higgins. There is some compensable damage caused by the broadcast (in the sense the broadcast materially contributed to the first wave of reputational damage) and for which the respondents are responsible, including some shunning of Mr Lehrmann manifested in his exclusion from chat groups (including Ex 11).
Conduct of Mr Lehrmann
1069 But before we leave reputational damage, as explained above, it is necessary to have regard to the evidence of the Relevant Misconduct of Mr Lehrmann, being conduct directly relevant to reputational damage. This conduct does rationally bear upon Mr Lehrmann's true reputation in the relevant sector and thus is of some significance in fixing upon a rational assessment of damages.
1070 At this point it is worth referring to the "concession" of senior counsel for Mr Lehrmann (T2444.37–38), relied upon by the respondents, that if the Court were satisfied sexual activity occurred, then Mr Lehrmann's conduct of this proceeding would amount to an abuse of process. In isolation, this exchange may indicate that a "Joseph v Spiller" type approach was conceded to be open depending on my findings of fact, but when Mr Lehrmann's submissions are considered as a whole, it reflects an agreement that the principled way of dealing with the Relevant Misconduct is the approach explained by Wigney J in Rush (No 2) (at 573 [32]–[33]).
1071 Mr Lehrmann behaved disgracefully. He defended the criminal charge on a false basis, lied to police, and then allowed that lie to go uncorrected before the jury. He instructed his unwitting and hence blameless senior counsel to cross-examine a complainant of sexual assault, in two legal proceedings, on a knowingly false premise.
