Judges:

His Honour Judge Lewis

Citations:

[2021] EWHC 513 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Defamation, Damages

Updated: 10 November 2022; Ref: scu.659678

Articles in consecutive issues of The Sunday Mirror accused the plaintiff of pimping for the KGB, organising sex with prostitutes for visiting British businessmen and then blackmailing them. The defendants pleaded justification. The plaintiff conceded in evidence that he was a persistent womaniser, but denied procuring prostitutes, though a tape of a conversation with a journalist in which the plaintiff was apparently arranging an assignation between the journalist and a prostitute was introduced in evidence (the plaintiff’s explanation being that he was either drunk or fantasising). The defendants called no evidence and the judge withdrew from the jury such parts of the plea of justification as suggested contact with the KGB.
Held: The Court reduced the jury’s award of pounds 100,000 to pounds 40,000, saying the jury must have concluded that the charge of procuring prostitutes was made out in part and that there were other matters which went to reduce the damages. (Hirst LJ) ‘I ask the same question as that asked by Neill LJ in Rantzen, namely could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation? In my judgment, grave though the libel is, and grave though the aggravation has been, the answer to that question is decisively no. First, I can see no justification for an award which is comparable with Rantzen, approximately double the awards either approved or substituted by the Court of Appeal in Houston and [Kiam] v Neill, and no less than four times the award substituted in John. Secondly, it is in my judgment out of all proportion to personal injury awards of a comparable amount, which embrace such very serious injuries as paraplegia and total blindness; these personal injuries awards . . do not of course establish a scale in the libel field, but I feel sure that, had that comparison been available to the jury in the present case (as it would be today in the post-John era), they would not have awarded anything like pounds 100,000, even if the plaintiff had enjoyed an unblemished reputation. Thirdly, when the material in reduction of damages is also taken into account (as of course it must be) the award seems to me still more gravely disproportionate to the injury caused’.

Judges:

Hirst LJ

Citations:

[1996] EWCA Civ 1186, [1997] EMLR 233, [1997] QB 586

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – John v MGN Ltd CA 12-Dec-1995
Defamation – Large Damages Awards
MGN appealed as to the level of damages awarded against it namely pounds 350,000 damages, comprising pounds 75,000 compensatory damages and pounds 275,000 exemplary damages. The newspaper contended that as a matter of principle there is no scope in . .

Cited by:

Cited – Kiam v MGN Ltd CA 28-Jan-2002
Where a court regards a jury award in a defamation case as excessive, a ‘proper’ award can be substituted for it is not whatever sum court thinks appropriate, wholly uninfluenced by jury’s view, but the highest award which a jury could reasonably . .
Cited – Nail v Jones, Harper Collins Publications Ltd; Nail v News Group Newspapers Ltd, Wade etc QBD 26-Mar-2004
The claimant was upset by an article published by the defendant making false allegations that he had behaved in a sexually profligate manner many years earlier. When it was substantially repeated he sued.
Held: The words were defamatory. An . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – Turner v News Group Newspapers Ltd and Another CA 16-May-2006
Application to determine compensation for admitted defamation.
Keene LJ considered both Pamplin and Burstein as bases for reliance upon other ‘misconduct’ of a claimant to reduce damages: ‘it needs to be borne in mind that the principle of . .
Cited – Dhir v Saddler QBD 6-Dec-2017
Slander damages reduced for conduct
Claim in slander. The defendant was said, at a church meeting to have accused the client of threatening to slit her throat. The defendant argued that the audience of 80 was not large enough.
Held: ‘the authorities demonstrate that it is the . .
Lists of cited by and citing cases may be incomplete.

Defamation, Damages

Updated: 04 November 2022; Ref: scu.141054

Defamation – Large Damages Awards

MGN appealed as to the level of damages awarded against it namely pounds 350,000 damages, comprising pounds 75,000 compensatory damages and pounds 275,000 exemplary damages. The newspaper contended that as a matter of principle there is no scope in law for awarding exemplary damages, either generally or in the particular circumstances of this case, so that the question of exemplary damages should never have been left to the jury.
Held: Libel juries in defamation cases are to be given guidance on the level of damages by comparison with personal injury claims. In assessing the amount of an award of damages in defamation proceedings, a jury’s attention could properly be drawn to awards which had been approved or substituted by the Court of Appeal and to conventional compensatory scales of damages awarded in personal injury actions. This was not as a precise correlation, but as a check on the reasonableness of the proposed award. The award in this case was too high.
An allegation of racism is a very serious one, going to integrity and honour. Sir Thomas Bingham MR said: ‘The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is [a] the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. [b] The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. [c] A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that [d] compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way. Although the plaintiff has been referred to as ‘he’ all this of course applies to women just as much as men.’
Sir Thomas Bingham said: ‘There could never be any precise, arithmetical formula to govern the assessment of general damages in defamation, but if such cases were routinely tried by judges sitting alone there would no doubt emerge a more or less coherent framework of awards which would, while recognising the particular features of particular cases, ensure that broadly comparable cases led to broadly comparable awards. This is what has happened in the field of personal injuries since these ceased to be the subject of trial by jury and became, in practice, the exclusive preserve of judges. There may be even greater factual diversity in defamation than in personal injury cases, but this is something of which the framework would take account.
The survival of jury trial in defamation actions has inhibited a similar development in this field. Respect for the constitutional role of the jury in such actions, and judicial reluctance to intrude into the area of decision-making reserved to the jury, have traditionally led judges presiding over defamation trials with juries to confine their jury directions to a statement of general principles, eschewing any specific guidance on the appropriate level of general damages in the particular case. While some distinguished judges (e.g. Diplock LJ in McCarey v Associated Newspapers Ltd (No 2 ) [1965] 2 QB 86 at 109) have considered that juries should be informed in broad terms of the conventional level of awards for personal injuries, not by way of analogy but as a check on the reasonableness of an award which the jury are considering, this has not been an authoritative view (see Cassell and Co Ltd v Broome [1972] AC 1027 at 1071). Even in the rare case when a personal injury claim was to be tried by a jury it was thought inappropriate that a jury should be informed of the conventional level of awards ( Ward v James [1966] 1 QB 273, 302), a striking departure from the modern practice when judges are sitting alone. Whatever the theoretical attractions of this approach, its practical disadvantages have become ever more manifest. A series of jury awards in sums wildly disproportionate to any damage conceivably suffered by the plaintiff has given rise to serious and justified criticism of the procedures leading to such awards. This has not been the fault of the juries. Judges, as they were bound to do, confined themselves to broad directions of general principle, coupled with injunctions to the jury to be reasonable. But they gave no guidance on what might be thought reasonable or unreasonable, and it is not altogether surprising that juries lacked an instinctive sense of where to pitch their awards. They were in the position of sheep loosed on an unfenced common, with no shepherd. While the Court of Appeal reaffirmed the fundamental soundness of the traditional approach in Sutcliffe v Pressdram Ltd [1991] 1 QB 153, the court did in that case recommend trial judges to draw the attention of juries to the purchasing power of the award they were minded to make, and of the income it would produce: see 178-179, 185-186, 190). This was thereafter done, and juries were reminded of the cost of buying a motor car, or a holiday, or a house. But judges were still constrained by authority from steering the jury towards any particular level of award.’

Judges:

Sir Thomas Bingham MR

Citations:

Independent 15-Dec-1995, Times 14-Dec-1995, [1997] QB 586, [1995] 2 All ER 35, [1996] 3 WLR 593, [1995] EWCA Civ 23, [1996] EMLR 229

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Sutcliffe v Pressdram Ltd CA 1991
A 600,000 pound compensatory award was set aside by the Court of Appeal on the grounds that it must have been made on the wrong basis, almost certainly so as to punish Private Eye. The Court of Appeal could not substitute its own award for that of a . .
Disapproved – McCarey v Associated Newspapers Ltd (No 2) CA 1965
References to damages awards in personal injury actions were legitimate in directing a defamation jury on quantum. . .
Cited – Tolstoy Miloslavsky v United Kingdom ECHR 19-Jul-1995
The applicant had been required to pay andpound;124,900 as security for the respondent’s costs as a condition of his appeal against an award of damages in a defamation case.
Held: It followed from established case law that article 6(1) did not . .

Cited by:

Cited – Gleaner Company Ltd and Another v Abrahams PC 14-Jul-2003
Punitive Defamation Damages Order Sustained
(Jamaica) The appellants challenged a substantial award of damages for defamation. They had wrongfully accused a government minister of corruption. There was evidence of substantial financial loss. ‘For nearly sixteen years the defendants, with all . .
Cited – Kiam v MGN Ltd CA 28-Jan-2002
Where a court regards a jury award in a defamation case as excessive, a ‘proper’ award can be substituted for it is not whatever sum court thinks appropriate, wholly uninfluenced by jury’s view, but the highest award which a jury could reasonably . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – George Galloway MP v Telegraph Group Ltd QBD 2-Dec-2004
The claimant MP alleged defamation in articles by the defendant newspaper. They claimed to have found papers in Iraqi government offices after the invasion of Iraq which implicated the claimant. The claimant said the allegations were grossly . .
Cited – Cleese v Clark QBD 2003
The court looked at the calculation of damages after an offer of amends under the Act by the defendant.
Held: Such calculations have to be linked to the very different circumstances of each case. Comparisons with awards after jury trial were . .
Cited – Nail and Another v News Group Newspapers Ltd and others CA 20-Dec-2004
The claimant appealed the award of damages in his claim for defamation. The defendants had variously issued apologies. The claimant had not complained initially as to one publication.
Held: In defamation proceedings the damage to feelings is . .
Cited – Rowlands v Chief Constable of Merseyside Police CA 20-Dec-2006
The claimant succeeded in her claims for general damages against the respondent for personal injury, false imprisonment and malicious prosecution, but appealed refusal of the court to award aggravated damages against the chief constable.
Held: . .
Cited – Jones v Pollard, Mirror Group Newspapers Limited and Bailey CA 12-Dec-1996
Articles in consecutive issues of The Sunday Mirror accused the plaintiff of pimping for the KGB, organising sex with prostitutes for visiting British businessmen and then blackmailing them. The defendants pleaded justification. The plaintiff . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – Morrissey v McNicholas and Another QBD 26-Oct-2011
The claimant musician alleged defamation, saying that the defendant had accused him of being a right wing racist. The defendant now applied to strike out the claim as an abuse of process because of the claimant’s delay.
Held: The application . .
Cited – Cairns v Modi CA 31-Oct-2012
Three appeals against the levels of damages awards were heard together, and the court considered the principles to be applied.
Held: In assessing compensation following a libel, the essential question was how much loss and damage did the . .
Cited – Dhir v Saddler QBD 6-Dec-2017
Slander damages reduced for conduct
Claim in slander. The defendant was said, at a church meeting to have accused the client of threatening to slit her throat. The defendant argued that the audience of 80 was not large enough.
Held: ‘the authorities demonstrate that it is the . .
Cited – Heil v Rankin, Rees v Mabco (102) Ltd, Schofield v Saunders and Taylor Ltd and Other cases CA 23-Mar-2000
The Law Commission had recommended that the general level of damages awarded for pain suffering and loss of amenity in personal injury cases should be raised. The Court now considered several cases on the issue.
Held: The court would do so. . .
Cited – Flymenow Ltd v Quick Air Jet Charter Gmbh QBD 15-Dec-2016
Warby J awarded a claimant company general damages of pounds 10 for a libel suggesting that it was insolvent. . .
Cited – Turley v Unite The Union and Another QBD 19-Dec-2019
Defamation of Labour MP by Unite and Blogger
The claimant now a former MP had alleged that a posting on a website supported by the first defendant was false and defamatory. The posting suggested that the claimant had acted dishonestly in applying online for a category of membership of the . .
Lists of cited by and citing cases may be incomplete.

Defamation, Damages

Updated: 27 October 2022; Ref: scu.82542

There had been a settlement of proceedings for libel brought by Lord Aldington against Mr Nigel Watts and Count Nikolai Tolstoy. Lord Aldington had obtained judgment for andpound;1.5 million in damages against both defendants following a trial. Bankruptcy orders were made against both Mr Watts and Count Tolstoy. By early 1991 Lord Aldington was faced with appeals or applications to appeal in four sets of proceedings. By a written agreement a compromise was reached that third parties would pay andpound;10,000 to Lord Aldington on behalf of Mr Watts. In consequence of the agreement Mr Watts sought a declaration against Lord Aldington that the settlement of 20 March 1991 constituted a release of all rights which Lord Aldington had against both himself and Count Tolstoy. Count Tolstoy sought an order directing his trustee in bankruptcy to reject Lord Aldington’s proof in respect of the original judgment debt. Paragraph 6 of the letter was in these terms: ‘That Lord Aldington undertakes to accept the said sum in full and final settlement of the judgment and orders referred to above and any liability howsoever arising before today’s date which could involve any payment by you directly or indirectly to Lord Aldington.’ A consent order was made annulling the bankruptcy order which had been made against Mr Watts. Lord Aldington had sought to prove in the bankruptcy of Count Tolstoy. The trustee in that bankruptcy claimed contribution against Mr Watts under section 1 of the Civil Liability (Contribution) Act 1978. Mr Watts sought a declaration against Lord Aldington that the settlement of 20 March 1991 constituted a release of all rights which Lord Aldington had against himself and Count Tolstoy; and Count Tolstoy sought an order directing his trustee in bankruptcy to reject Lord Aldington’s proof in respect of the original judgment debt. At first instance the question was whether paragraph 6 of the settlement letter was a release of the judgment debt so relieving Count Tolstoy, as well as Mr Watts, from any further liability and extinguishing the right of contribution which Count Tolstoy, through his trustee in bankruptcy, would otherwise have had against Mr Watts or whether the settlement should be construed merely as an agreement by Lord Aldington not to sue Mr Watts. The Judge held that the agreement of 20 March 1991 was an agreement not to sue on or enforce the original judgment debt, not an agreement for the discharge of the liability under it.
Held: A settlement at a reduced level with one defendant does not release a co-defendant in a joint libel action.
The Court had difficulty in adopting the Judge’s view that, as a matter of construction, the letter of 20 March 1991 evidenced an agreement not to sue rather than a release. Two members of the court (Lord Justice Steyn and Lord Justice Simon Brown held that paragraph 6 of that letter did contain a release of Lord Aldington’s claim against Mr Watts. Lord Justice Neill did not find it necessary to decide that point. But the view that the agreement contained a release of Lord Aldington’s claim against Mr Watts did not lead to the conclusion that there was a release Lord Aldington’s claim against Count Tolstoy. Each member of the court held that the appeal should be dismissed. Lord Justice Neill rejected the traditional dichotomy between release and agreement not to sue. He said: ‘I have come to the conclusion, however, that in trying to fit the agreement into a particular category one may lose sight of the true enquiry: what is the meaning and effect of the agreement having regard to the surrounding circumstances and taking into account not only the express words used in the document but also any terms which can properly be implied.’ On the facts: ‘the agreement of 20 March 1991 was plainly subject to an implied term that Lord Aldington’s rights against Count Tolstoy would be reserved. I consider that any other result would offend common sense.’ and ‘Accordingly, though the result may be the same, in my opinion it will often be more satisfactory to consider whether the relevant document is an absolute release or release with a reservation rather than to consider whether the document can be fitted into the straitjacket of the covenant for agreement not to sue.’
Lord Justice Steyn, who had expressed the view that although the rule that the release of one of two joint and several tortfeasors was absurd and required re-examination nevertheless the court was bound to follow it, approached the matter in the same way: ‘In my judgment the right question is the following: is Lord Aldington reserving the right under his agreement [with Mr Watts] to sue Count Tolstoy? In my judgment the objective setting of the contract convincingly shows that the answer of both parties to that question would have been ‘Yes, of course’.
Lord Justice Simon Brown rejected the ‘technicality and intrinsic artificiality’ of the conventional approach to the rule as to the release of co-debtors – a rule which he described as a ‘juridical relic’. He defined the central question before the court as being ‘whether it is proper here to imply a reservation by Lord Aldington of his rights against Count Tolstoy’. That question admitted of only one answer: ‘On the facts known to both parties it was perfectly obvious that Lord Aldington was not prepared to abandon his judgment against Count Tolstoy. ‘

Judges:

Neill, Steyn, Simon Brown LJJ

Citations:

Times 16-Dec-1993, Independent 25-Jan-1994, CA Transcript 1578 of 1993, [1999] LTR 578

Statutes:

Civil Liability (Contribution) Act 1978

Jurisdiction:

England and Wales

Citing:

See Also – Tolstoy-Miloslavsky v Aldington CA 27-Dec-1995
Solicitors who unreasonably commence proceedings may be subject to a wasted costs order, but there should be no award of costs against a solicitor solely because he acted without a fee. An award of costs should not be made against a solicitor who . .
See Also – Tolstoy Miloslavsky v United Kingdom ECHR 19-Jul-1995
The applicant had been required to pay andpound;124,900 as security for the respondent’s costs as a condition of his appeal against an award of damages in a defamation case.
Held: It followed from established case law that article 6(1) did not . .
Appeal from – Lord Aldington v Tolstoy, Watts QBD 30-Nov-1989
The plaintiff sought damages after the article published by the defendants falsely accused him of complicity in war crimes.
Held: As to damages the jury awarded one and a half million pounds after being directed inter alia: ‘Let us now, . .

Cited by:

Cited – Nail v Jones, Harper Collins Publications Ltd; Nail v News Group Newspapers Ltd, Wade etc QBD 26-Mar-2004
The claimant was upset by an article published by the defendant making false allegations that he had behaved in a sexually profligate manner many years earlier. When it was substantially repeated he sued.
Held: The words were defamatory. An . .
See Also – Tolstoy Miloslavsky v United Kingdom ECHR 19-Jul-1995
The applicant had been required to pay andpound;124,900 as security for the respondent’s costs as a condition of his appeal against an award of damages in a defamation case.
Held: It followed from established case law that article 6(1) did not . .
See Also – Tolstoy-Miloslavsky v Aldington CA 27-Dec-1995
Solicitors who unreasonably commence proceedings may be subject to a wasted costs order, but there should be no award of costs against a solicitor solely because he acted without a fee. An award of costs should not be made against a solicitor who . .
Cited – Chelsea Building Society v Nash CA 19-Oct-2010
The defendant customer of the Society appealed against an order as to the sum due under a joint mortgage. She said that the ‘full and final settlement’ of the debt with Ms Nash’s former husband and joint mortgagor had the effect of releasing Ms Nash . .
Applied – Johnson and Another v Davis and Another CA 18-Mar-1998
The court was asked: ‘whether or not the appellants were released from their obligation under a covenant to indemnify the respondents against claims arising under a lease by reason of the terms of an individual voluntary arrangement made under part . .
Cited – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
Lists of cited by and citing cases may be incomplete.

Defamation, Damages

Updated: 26 October 2022; Ref: scu.90331