LAW REPORT: Libel juries should be guided on awards of damages
15 DECEMBER 1995 John v Mirror Group Newspapers Ltd; Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Neill and Lord Justice Hirst); 12 December 1995
Friday 15 December 1995
The Court of Appeal allowed in part MGN's appeal and substituted damages of pounds 75,000 for an award of pounds 350,000 to the plaintiff, Elton Hercules John.
Elton John brought a libel action against MGN in respect of an article published in the Sunday Mirror which alleged that he was on a "diet of death" by eating without swallowing. Elton John's case was that the article was without foundation and undermined his success in curing his addiction to drugs, alcohol and his eating problems. The jury awarded pounds 75,000 compensatory damages and pounds 275,000 exemplary damages. MGN appealed against the award of damages.
Charles Gray QC and Heather Rogers (MGN solicitor) for MGN; Desmond Browne QC and David Parsons (Frere Cholmeley) for Elton John.
Sir Thomas Bingham MR, giving the court's judgment, said that compensatory damages compensated the successful plaintiff for the damage to his reputation, vindicated his good name, and took account of the distress, hurt and humiliation caused.
Respect for the constitutional role of the jury in defamation actions had led to judges eschewing any specific guidance on the appropriate level of damages. The practical disadvantages of that approach had become more manifest. A series of jury awards in sums wildly disproportionate to any damage suffered had given rise to criticisms. Possible changes should be considered.
Juries should not be reminded of previous libel awards by juries. Reference might be made to awards approved or made by the Court of Appeal under section 8(2) of the Courts and Legal Services Act 1990 under which the Court of Appeal was empowered, on allowing an appeal against a jury's award, to substitute such sum as appeared to the court to be proper.
Turning to comparison with damages in personal injuries actions, although there could be no precise correlation, juries might be asked to consider whether injury to reputation justified any greater compensation. The conventional compensatory scales in personal injury cases must be taken to represent fair compensation. It was offensive to public opinion that a defamation plaintiff should recover damages for injury to reputation greater, perhaps by a significant factor, than if that same plaintiff had been rendered a helpless cripple. The time had come when judges, and counsel, should be free to draw the attention of juries to these comparisons.
There was no reason why the parties' respective counsel should not indicate to the jury the level of award they contended to be appropriate nor why the judge should not give a similar indication. The plaintiff would not wish the jury to think that his main object was to make money rather than clear his name. The defendant would not wish to add insult to injury by underrating the seriousness of the libel.
The jury would not be bound by the submission of counsel or the indication of the judge. If the jury made an award outside the upper or lower brackets indicated and such award was apealed, real weight must be given to the possibility that their judgment was to be preferred to that of the judge.
Those modest but important changes would not undermine the constitutional position of the libel jury. Historically the significance of the libel jury had lain, not in assessing damages, but in deciding whether the publication was a libel.
Exemplary damages were awarded only if the publisher knew he acted unlawfully or had no genuine belief in the truth of the publication, acted in the hope of material gain, and when the compensatory damages was not sufficient to punish the defendant and deter others. Such damages should never exceed the minimum sum necessary to meet the public purpose underlying such damage, that of punishing the defendant, showing that tort did not pay and deterring others.
Although the judge had not misdirected the jury in his summing-up on the award of damages, the size of the award was excessive. Awards of pounds 25,000 would be substituted for compensatory damages and pounds 50,000 for exemplary damages.
Ying Hui Tan, Barrister
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