Damages – Assessment – Claimants having libellous comments made against them

Cairns v Modi; KC v MGN Ltd: Court of Appeal, Civil Division (Lord Judge CJ, Lord Neuberger of Abbotsbury and Mr Justice Eady): 31 October 2012

The instant appeals were heard together as they considered a common issue as to the approach to be taken to determine the appropriate measure of damages to be awarded in libel proceedings. In the first appeal, the claimant (C) sued in regard to a message posted on a Twitter page by the defendant (M). C was a professional cricket player and M, whose opinions in cricket were likely to be taken as being authoritative, posted a message stating that C been involved in match-fixing. The same day, M was contacted by a cricketing website, to whom he confirmed his allegation, with the consequence that an article appeared on the website repeating the allegation.

Following a trial, M was found liable. The judge awarded a sum of £15,000 to reflect one aspect of aggravation, namely, the conduct of M’s former counsel in the conduct of the trial. The judge further awarded £75,000 in respect of all other matters. M appealed the issue of damages.

In the second appeal, the claimant (KC) was the father of 'Baby P', a child that died following ill-treatment by his mother and two men with whom she was acquainted. The defendant (MGN) published a supplement to accompany the print edition of one of its national newspapers, in which it was incorrectly stated that the father of Baby P had a conviction for raping a young girl.

The identity of the father of Baby P remained anonymous in the publication. However, KC complained that the publication was libellous. MGN made an unqualified offer of amends in accordance with section 2 of the Defamation Act 1996 (the 1996 act), and a unilateral apology was made in MGN’s newspaper. However, a dispute remained as to the appropriate award of damages and the court was asked to make an assessment in accordance with section 3(5) of the 1996 act.

The judge fixed a starting-point figure of £150,000, which he then reduced by 50% to reflect mitigating factors, including, the willingness of MGN to use the offer of amends procedure. MGN appealed the starting-point figure that had been adopted by the judge.

In the first appeal, M submitted that the judge had awarded a sum that was disproportionate and excessive in the light of what would have been a relatively narrow scope of the original publication. Further, M contended that there had been a reduced need for an element of vindication in the award once a reasoned judgment had been promulgated at the conclusion of a trial. In the second appeal, MGN submitted that the judge had given insufficient weight to the fact that, throughout, KC had remained anonymous, and that the falsity of the allegation was recognised and publicly corrected at a very early stage.

The court ruled: In each case involving the assessment of compensation following a libel, the essential question to determine was how much loss and damage did the publication cause to its victim, and how was that to be reflected in monetary terms. The process of assessing damages was not quasi-scientific, and there was rarely a single 'right' answer. Nevertheless, it was virtually self-evident that, in most cases, publication of a defamatory statement to one person would cause infinitely less damage than publication to the world at large, and that publication on a single occasion was likely to cause less damage than repeated publication and consequent publicity on social media.

Rapid publication of the withdrawal of a defamatory statement accompanied by an apology, together with an admission of its falsity given as wide publicity as the original libel, diminished its impact more effectively than an apology extracted after endless vacillation while the libel remained in the public domain, unregretted and insidiously achieving greater credibility. As a consequence of modern technology and communication systems, stories had the capacity to 'go viral' more widely and more quickly than before.

It was obvious today, with the ready availability of the worldwide web and of social networking sites, that the scale of the problem of allegations of a scandalous nature percolating through underground channels had been immeasurably enhanced, especially for libel claimants who were already, for whatever reason, in the public eye. That percolation phenomenon was a legitimate factor to be taken into account in the assessment of damages.

Further, it was not right in principle for a defendant to embark on a wholesale attack on the character of the claimant in a libel action heard by a judge without having to face the consequences of the actual and potential damage done to the victim both in the forensic process and as a result of further publicity. Whether a judge provided sufficient vindication was a question of fact (see [23], [24], [26], [27], [33] of the judgment).

In the first appeal, it had been more likely, as in many cases, that the general public would have been concerned to discover what might be called the 'headline' result, and what most people would have wanted to have known was simply what award of damages C had received. The award made had been proportionate to the seriousness of the allegation and its direct impact on C himself, and would serve to vindicate his reputation. In the second appeal, the article, as published, would have left some readers in no doubt that the article was referring to KC, and at least some of those who had read it would have thought ill of him as a result.

Nevertheless, it had not followed that a very substantial proportion of those who had bought and read the newspaper would have had the slightest idea of KC's identity, or his link with Baby P or the case which had caused so much public disquiet. Accordingly, the reasoning on which the assessment of compensation had been based had attached too much importance to the large circulation and readership of the newspaper. On that basis, the very limited nature and extent of the publication as it might have impacted on the reputation of KC, who had remained anonymous, had not been given sufficient focus.

Given the limited number of those who might have read or heard of the false allegation made against him, and appreciated that it had indeed referred to him, the starting point in KC's case had been too high. It would be reduced to a level which, consistently with the limited publication and the early apology, nevertheless adequately reflected the abhorrent nature of the crime falsely alleged against KC and the damage done to, and its impact on him. A proportionate figure had been £100,000 (see [32], [33], [41], [47]-[49] of the judgment).

The first appeal would be dismissed. The second appeal would be allowed to the extent that the starting figure would be reduced to £100,000, with the result that a reduced sum of damages of £50,00 would be awarded (see [41], [50] of the judgment).

John v MGN Ltd [1996] 2 All ER 35 applied; Ley v Hamilton 153 LT 384 considered; Decision of Bean J [2012] All ER (D) 203 (Mar) affirmed. Decision of Bean J [2012] All ER (D) 28 (Mar) reversed In part.

Andrew Caldecott QC and Ian Helme (instructed by Collyer Bristow) for C; Hugh Tomlinson QC and Jonathan Price (instructed by Fladgate LLP) for M; James Dingemans QC and Julien Foster (instructed by YVA Solicitors) for KC; Desmond Browne QC (instructed by MGN Legal Department) for MGN.