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Libel damages

March 10, 2012

The case of KC v MGN Ltd [2012] EWHC 483 (QB) provides a useful examination of assessment of libel damages and the discount on the amount of damages awarded when an offer of amends is made.

The two stage assessment of compensation test.

The Judge Mr Justice Bean went through the two stage assessment of compensation.  The two stage process was identified in the case of Turner v MGN [2005] EMLR 25 and Nail v News Group Newspapers Ltd.

  • The process is first to identify the figure that should be awarded at the conclusion of a hypothetical trial in which the Defendant had done nothing to aggravate or to hurt the claimant’s feelings and nothing to mitigate.
  • The second stage to be considered is to what extent if at all, that figure should be discounted to give effect to those mitigating factors which the Defendant is able to take advantage of.

Mitigation in such cases may well be the offer of amends procedure.  The assessment of damages is at the date of assessment not the date of publication.  That means that if the Defendant aggravates the publication then the amount of damages may be more.  If an early qualified offer to make amends is made and accepted then there would usually be a substantial discount.

Assessment of damages.

The Judge then went on to consider the likely level of damages in such cases the factors to be considered are well established. The damages are uplifted in the same way as personal injury cases are to bring the awards up to todays date.

John v MGN [1997] QB 586

In this case it was said some of the award must compensate the claimant for damage to his reputation, vindicate his good name and take account of the stress, hurt and humiliation which defamatory publications cause.  That case said the most important factor is the gravity of the libel, the more closely it touches the claimant’s personal integrity and professional reputation, honour, courage, loyalty and attributes of his personality more than serious it is likely to be.  Also  the extent of the publication is relevant, a libel published to millions has a greater potential to cause damage than a libel published to a handful of people.  Therefore the award will be different if the defendant defends the libel than one who admits at an early stage that it was false and expresses regret.

Cleese v Associated Newspapers [2004] EMLR 3

  • “….the gravity of the allegations, the scale of publication, the extent to which any readers believed the words to be true, [and] any impact upon the Claimant’s feelings, reputation or career. There may be matters of aggravation or mitigation which also need to be put in the scales. … A fundamental point always to be remembered is that the purpose of such damages, and indeed compensation awarded under section 3(5), is compensatory and not punitive.”

Mr Justice Bean then went through a review of cases to establish the level of damages  to be awarded.

Lillie and Reed v Newcastle City Council and Others [2002] EWHC 1600 (QB).

  • This was two nursery workers who were accused of sexual, physical and emotional abuse of children in care.  This was nationally reported in over 100 articles.  They had to flee their homes and jobs and go into hiding and change their names.  Some Defendants pleaded justification and maintained the  plea to trial.  They were awarded £200,000.

Veliu v Mazrekaj [2007] 1WLR 495

  • The Claimant was accused of being implicated in the London and Paris bombings in a Kosovan Newspaper.  Its circulation  amongst Albanian speakers in London was said to be in the thousands.  Eady J awarded £180,000 (current value £212,400).

Ghannouchi v Al-Arabiya [2007]EWHC 2855 (QB)

  • The Claimant, a Tunisian exile was accused of having extremist links with Al-Qaeda.  The program was broadcast to hundreds of thousands of people.  There was no apology no offer of amends, as a consequence the award was aggravated and he was awarded £165,000 (current value £188,100).

Rantzen v Mirror Group Newspapers Ltd [1994] QB 670

  • Esther Rantzen was accused in The People paper of keeping secret the fact that a teacher who helped her to expose sexual abuse at a boy’s school was himself an abuser.  Mirror Group Newspapers pleaded justification and fair comment.  The Jury awarded £250,000 which was reduced on appeal to £110,000 (current value £182,600).

Al-Amoudi v Kifle [2011] EWHC 2037 (QB)

  • The libel was published on an Ethiopian based website and was left there for months.  The Claimant was accused of financing terrorism in allowing his daughter at the age of 13 to marry an elderly and disabled member of the Saudi Royal Family as a form of gift and hunting her down with a view to her execution by stoning or flogging.  He was awarded the sum of £175,000.

Bereuzovsky and Terluk

  • Statements were made on Russian program broadcast in the UK. The Claimant had been accused of offering the Defendant massive payments to tell a false story to help him to avoid extradition to Russia.  When the Defendant refused he was accused of drugging him.  The Claimant was awarded £150,000 (current value £157,500) on appeal,Terluk v Berezovsky [2011] EWCA Civ 1534).the Judge thought it was on the high side but refused to interfere.

Campbell-James v Guardian Newspapers [2005] EMLR 24.

  • This was an allegation that the Claimant, a distinguished army officer, had been involved in systematic abuse and humiliation of inmates at a prison in Iraq.  In fact when the abuse took place the Claimant was not even in Iraq.  The Claimant had been exposed to a long term security risk and would not be able to work in the Middle East again, and his career was damaged.  Eady J took a starting point of £90,000 (current value £108,900).

Houston v Smith.

  • The Claimant was a GP accused by the Defendant of having sexually harassed her.  The accusation was made in front of only a few people in the waiting room of the GP’s practice.  The allegation however was so serious it could have ended the doctor’s career.  An award of £150,000 was made by the Jury which was reduced by the Court of Appeal to £50,000 (current value £83,000).  Hirst L J thought that the award was at the very top end of the scale and if the Defendant had promptly apologised it would have been a small fraction.

Nail v News Group Newspapers Ltd

  • The Claimant was “from the News of the World”.  The paper had 4 million copies distributed.  The article suggested that he had progressed from eating dog meat to engaging in grubby sexual behaviour and being a heartless prima donna.  The starting point was £45,000 (current value £56,250).

Angel v Stainton,

  • A letter was sent to five influential recipients that the Claimant had been involved in illegal arms dealing and had received a prison sentence some years earlier.  An unqualified offer of amends was made two months later.  ED held the correct figure was £40,000 (current value £47,200) it was a very small distribution.  However the Judge thought that even so, the allegation had been so serious that if he was to award a modest level of conversation some people would consider that there was truth in the allegation.

Cassell v Broome [1972] AC 1027.

  • Lord Hailsham said “in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a Jury sufficient to convince a bystander of the baselessness of the charge”.

In KC v MGN Ltd [2012] the Judge considered this was about as serious a libel as could possibly be.  He had regard to Lord Hailsham’s “no smoke without fire” point in Cassell v Broome.  He considered that the accusation was worse than that in Terluk and far worse than Campbell-James, Houston, Nail or Angel.  The paper had a circulation of about half a million copies, a readership of 1.2 million and he awarded £150,000.

Discount

The Judge when considering the offer of amends, in view of the cases, indicated that the range was never less than a third and never more than a half.  In this case, the apology was prompt but he thought that it was important as had been described by May J L that a discount was not so great as to lead Defendant’s libel Claimants will equanimity knowing that they will be able to buy themselves out of trouble.  The Judge thought stage two discount had never exceeded 50% and he found it difficult to think of any circumstances which it would or should, he ordered therefore a 50% discount and awarded the Claimant £75,000 in damages.