The jury in defamation actions may be referred to awards made by the Court of Appeal in defamation cases under section 8 of the Courts and Legal Services Act 1990, but may not be referred to jury awards in other defamation cases or to conventional awards in personal injuries actions.
The Court of Appeal substituted the sum of pounds 110,000 for the pounds 250,000 damages for libel awarded by a jury to Esther Rantzen. Leave to appeal to the House of Lords was granted.
Miss Rantzen, a presenter of the BBC Television programme That's Life and the founder and chairperson of the Childline charity for sexually abused children, brought libel proceedings in respect of articles published in the People on 3 February 1991.
She alleged that the articles bore the meaning that she, knowing that a teacher, Alex Standish, was guilty of sexually abusing children, did not warn the headteacher of the school, took no action and was insincere and hypocritical. The newspaper pleaded justification and fair comment. Her case was that she brought her anxieties about Mr Standish to the attention of the authorities and believed the police were keeping a careful watch on him. The jury awarded her pounds 250,000.
Charles Gray QC and Heather Rogers (Mirror group solicitor) for the newspaper; Richard Hartley QC and Geoffrey Shaw QC (Herbert Smith) for Miss Rantzen.
LORD JUSTICE NEILL, giving the judgment of the court, said that section 8 of the Courts and Legal Services Act 1990 gave the Court of Appeal the power to order a new trial on the ground that damages awarded by a jury were 'excessive'. The Court of Appeal was empowered, in place of ordering a new trial, to substitute for the sum awarded 'such sum as appeared to the court to be proper'. It was necessary to examine those powers in the light of the right to freedom of expression in article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Where freedom of expression was at stake, article 10 could be regarded as an articulation of some of the principles underlying the common law.
The common law required the courts to subject large awards of damages to a more searching scrutiny than had been customary in the past. The question became: could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?
The court was not persuaded that at the present time it would be right to allow reference to be made to jury awards in previous defamation cases.
Previous awards could not be regarded as establishing a norm or standard to which reference could be made in the future.
Awards made by the Court of Appeal under section 8 stood on a different footing. It must have been the intention that over a period of time such awards would provide a corpus to which reference could be made in subsequent cases. The decisions of the Court of Appeal could be relied on as establishing the prescribed norm.
The court saw the force of criticism of the present practice whereby a plaintiff in a libel action might recover a much larger sum for an injury to his reputation, which might prove transient in its effect, than the damages awarded for pain and suffering to the victim of an industrial accident who had lost an eye or the use of one or more of his limbs.
However there was no satisfactory way in which conventional awards for damages for personal injuries could be used to provide guidance for an award in an action for defamation. Damages for defamation were intended, at least in part, as a vindication of the plaintiff to the public.
In the course of time, a series of Court of Appeal decisions would establish some standards as to what were, in the terms of section 8, 'proper' awards. In the meantime the jury should be invited to consider the purchasing power of an award. They should be asked to ensure that any award was proportionate to the damage which the plaintiff had suffered and was a sum which it was necessary to award to provide adequate compensation and to re-establish his reputation.
In the present case, a substantial award was justified. However judged by any objective standards of reasonable compensation or necessity or proportionality the award of pounds 250,000 was excessive.
The court substituted the sum of pounds 110,000.
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