Defamation - Case Law

Defamation - Damages for libel - Assessment by jury - Jury awarding compensatory damages of GBP75,000 and exemplary damages of GBP275,000 - Whether awards excessive - Whether exemplary damages appropriate - Guidance to jury in assessment of damages

The plaintiff, a well known musician and entertainer, began an action against the defendant publishers of a national newspaper claiming compensatory damages for defamation in respect of an article appearing in the newspaper in December 1992. The article, located on an inside page and prominently advertised on the front page, which also bore a photograph of the plaintiff, claimed that the plaintiff engaged in a bizarre diet of chewing but not swallowing food and had been observed at a Hollywood Christmas party spitting chewed food into a napkin. The article also quoted medical opinion to the effect that such dietary conduct constituted a form of bulimia and was potentially fatal. Prior to trial the plaintiff by amendment also claimed exemplary damages on the ground, inter alia, that the defendant had not attempted to verify the accuracy of the article but had published with a reckless disregard of its truth or falsity, calculating that the defendant would gain more financially from publication than it would have to pay the plaintiff by way of damages. The judge ruled that there was sufficient evidence to place before the jury on the issue of exemplary damages. The jury found in the plaintiffs favour, awarding him GBP75,000 by way of compensatory damages and GBP275,000 by way of exemplary damages.

On the defendant's appeal:-
Held, allowing the appeal in part, (1) that in assessing the quantum of an award of damages the jury's attention could properly be drawn to such awards as had been approved or substituted by the Court of Appeal, to the conventional compensatory scales of damages awarded in personal injury actions, not as a precise correlation but as a check on the reasonableness of their proposed award, and to indications by counsel and the judge as to the sum or bracket of award appropriate to the particular case; that the judge's summing up had, within the existing guidelines, given the jury sufficient assistance; but that since the article did not attack the plaintiff's personal integrity or damage his reputation as an artist, the jury's award was excessive and the sum of GBP25,000 would be substituted (post, pp. 612B-D, 613D-E, 614A-B, 615H-616A, 621A-B).

Broome v Cassell & Co Ltd [1972] AC 1027, H.L.(E.); Sutcliffe v Pressdram Ltd [1991] 1 QB 153, C.A. and Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670, C.A. considered.

(2) That on a claim for exemplary damages the judge should make it clear to the jury that before they could make such an award they were to be satisfied that the defendant had no general belief in the truth of what he had published and had been motivated by a cynical calculation that publication was to his mercenary advantage; that such an award was only appropriate where those conditions were met, where the sum awarded by way of compensatory damages was insufficient to achieve the punitive and deterrent purpose underlying exemplary damages, and should not exceed the minimum necessary to achieve that purpose; that, having regard to the circumstances, in particular, to the defendant's failure to check the contents of the article and to its prominent presentation, there was sufficient evidence of recklessness and of calculation fit to be left to the jury; that the judge's directions had provided sufficient guidance to the jury but that their award was manifestly excessive; and that since the compensatory award as substituted did not adequately reflect the gravity of the defendant's conduct or act as a deterrent to others an award of exemplary damages was appropriate and a sum of GBP50,000 would be substituted (post, pp. 618G-619A, 623B-E, 626A-D).

Manson v Associated Newspapers Ltd [1965] 1 WLR 1038; Broome v Cassell & Co Ltd [1972] AC 1027, H.L.(E.) and Riches v News Group Newspapers Ltd [1986] QB 256, C.A. considered.



Appeal from Drake J. and a jury.
By a writ issued on 6 January 1993 and a statement of claim served on 19 January 1993 the plaintiff, Elton Hercules John, claimed damages and injunctive relief against the defendant, MGN Ltd, the publisher of the "Sunday Mirror," for libel in respect of an article published in the newspaper on 27 December 1992 asserting that the plaintiff had been observed at a party in California indulging in a form of bulimia by chewing and spitting out food which certain medical opinion considered potentially fatal. By an amended statement of claim re-served on 22 September 1993 the plaintiff further claimed exemplary damages, in particular on the ground that he had not attended the relevant party so that the defendant had failed to investigate sufficiently the accuracy of the article and had been reckless in its publication, not caring whether the words were true or false and had calculated that it was likely to gain more financially from the publication than it would have to pay the plaintiff by way of an award of damages. By an amended defence, re-served on 25 October 1993, the defendant denied that the words complained of were defamatory or capable of bearing such a meaning and further denied that the plaintiff was entitled to exemplary damages.

On 4 November 1993 the jury found in the plaintiff's favour, awarding him damages in the sum of GBP350,000, being GBP75,000 by way of compensatory damages and GBP275,000 by way of exemplary damages.

By a notice of appeal dated 1 December 1993 the defendant appealed on the grounds, inter alia, that (1) the judge (a) erred in failing to withdraw the issue of exemplary damages from the jury at the close of the plaintiff's case; (b) misdirected the jury on the way they were to approach the question whether they should award exemplary damages; and (c) misdirected the jury on the issue of compensatory damages; (2) the jury's award of exemplary damages was excessive in that no jury properly directed could have awarded such a sum as appropriate; their award of compensatory damages was excessive, unreasonable and incompatible with the guidance given in Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670; and in any event both awards were so high as to amount to a restriction or penalty on the defendant's freedom of expression contrary to article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969).

The facts are stated in the judgment of the court.

Charles Gray Q.C. and Heather Rogers for the defendant. The following issues arise. (1) Should the question of exemplary damages have been left to the jury? (2) Was the jury misdirected on the question of exemplary damages? (3) Were the sums awarded by way of compensatory and exemplary damages excessive? (4) What sum or sums should the Court of Appeal award under section 8 of the Courts and Legal Services Act 1990 by way of substitution for compensatory and exemplary damages?

Where exemplary damages are claimed on the basis that the defendant acted with a cynical disregard for the plaintiff's rights, the plaintiff must establish two elements: (1) that the defendant had guilty knowledge that his conduct constituted a tort and (2) that his decision to commit the tort was motivated by his calculation that the material advantage to be gained would outweigh the material loss to be suffered: see Rookes v Barnard [1964] AC 1129; Broome v Cassell & Co Ltd [1972] AC 1027 and A.B. v South West Water Services Ltd [1993] QB 507.

The guilty knowledge test is satisfied where the plaintiff establishes that the defendant or those for whom he is responsible knew that they were committing a tort or were reckless and deliberately shut their mind to what they were doing. But gross negligence is not enough: see Riches v News Group Newspapers Ltd [1986] QB 256; Derry v Peek (1889) 14 App. Cas. 337; Horrocks v Lowe [1975] AC 135 and Clerk v Lindsell on Torts, 17th ed. (1995), p. 31, para. 1.45 and pp. 723-724, paras. 14.20, 14.22. In the case of a corporate defendant, the guilty knowledge must be that of its directing mind, namely, its director, editor or senior journalist, but not a freelance writer: see Tesco Supermarkets Ltd v Nattrass [1972] AC 153; H. L. Bolton (Engineering) Co Ltd v T. J. Graham & Sons Ltd [1957] 1 QB 159; Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500; Heatons Transport (St. Helens) Ltd v Transport and General Workers' Union [1973] AC 15; In re Supply of Ready Mixed Concrete (No. 2) [1995] 1 AC 456; Smith & Hogan on Criminal Law, 7th ed. (1992), pp. 178-182 and Archbold, Criminal Pleading, Evidence & Practice, 46th ed. (1996), vol. 2, p. 2118, para. 17-34 and Halsbury's Laws of England, vol. 11(1), 4th ed. reissue (1990), p. 53, para. 55. Vicarious liability has no place where criminal or quasi-criminal liability of a company is in issue, apart from limited categories of absolute offences: see Vane v Yiannopoullos [1965] AC 486.

Alternatively, if vicarious liability does apply it must be strictly construed. As a general rule there is no such liability for the acts of independent contractors: see Clerk & Lindsell on Torts, 17th ed. (1995), pp. 176, 192-193, paras. 5.20, 5.46. The court will therefore scrutinise the factual matrix to determine whether a particular person could be said to be acting for or within the scope of the authority conferred by the company: see Racz v Home Office [1994] 2 AC 45; Heatons Transport (St. Helens) Ltd v Transport and General Workers' Union [1973] AC 15; In re supply of Ready Mixed Concrete (No. 2.) [1995] 1 AC 456 and Reg. v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58, 164. That an employee or an agent is a tortfeasor does not make his employer or principal also a tortfeasor: see Broadway Approvals Ltd v Odhams Press Ltd (No. 2) [1965] 1 WLR 805; Hennessy v Wright (No. 2) (1890) 24 QBD. 445, 447; Smith & Hogan, pp. 728-729; Reg. v Holbrook (1877) 3 QBD. 60; Rex v Gutch Fisher and Alexander (1829) Moo. M. 433; Rex v Walter (1799) 3 Esp. 21 and Reg. v Wells Street Stipendiary Magistrate, Ex parte Deakin [1980] AC 477.

As to the element of the defendant's "profit motive" or "calculation," the judge gave no proper direction on it: see Manson v Associated Newspapers Ltd [1965] 1 WLR 1038 and A.B. v South West Water Services Ltd [1993] QB 507. He should have indicated to the jury that the fact that a newspaper was published for profit did not necessarily mean that it had made the necessary calculation, and that they should find that it had if that was the only inference. He should further have directed them to apply the criminal standard of proof: see Mafo v Adams [1970] 1 QB 548 and Riches v News Group Newspapers Ltd [1986] QB 256.

Awards of exemplary damages should not be made because their existence: (1) confuses civil compensation with criminal penalty, (2) provides a windfall for the plaintiff, (3) has no evidential or procedural safeguards, (4) is anomalous, (5) is available only for arbitrarily selected causes of action and (6) is often in the hands of a jury which is set an almost impossible and unguided task: see Rookes v Barnard [1964] AC 1129; Report of the Committee on Defamation (1975) (Cmnd. 5909) pp. 94-97, para. 351-360 (the Faulks committee); Report of the Supreme Court Procedure Committee on Practice and Procedure in Defamation (1991), Part IV, pp. 39-43 (the Neill committee) and the Law Commission Consultation Paper No. 132 "Aggravated, Exemplary and Restitutionary Damages:" (1993).

In awarding exemplary damages the court should have regard to article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) as being an articulation of the principles underlying the common law: see Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670; Attorney-General v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109; Derbyshire County Council v Times Newspapers Ltd [1992] QB 770; [1993] AC 534 and Reg. v Chief Metropolitan Stipendiary Magistrate, Ex parte Choudhury [1991] 1 QB 429. Large awards of compensatory and, a fortiori, exemplary damages have a chilling effect on freedom of speech and expression. The restriction so imposed violates article 10 unless it is a restriction prescribed by law, and is necessary in a democratic society for the protection of the plaintiff's reputation and is proportional to the achievement of that purpose. Article 13 of the Convention entitles the defendant to raise such a violation in the national court: see Lingens v Austria (1986) 8 E.H.R.R. 407.

The condition that the restriction is "prescribed by law" is not fulfilled unless it is easily accessible and formulated with sufficient precision for the ordinary citizen to rely on it to regulate his conduct: see Sunday Times v United Kingdom (No. 1) (1979) 2 E.H.R.R. 245 and the Rantzen case [1994] QB 670, 693. While compensatory damages may fulfil the condition (see Tolstoy Miloslavsky v United Kingdom (1995) 20 E.H.R.R. 442), exemplary damages, given their criminal character, cannot. The condition as to an award being necessary for the protection of reputation is not satisfied since there was no pressing social need for making such an award on the basis that the plaintiff could not be otherwise protected. The plaintiff's reputation could have been adequately protected by a compensatory award: see Black v North British Railway, 1908 S.C. 444 and the Tolstoy case, 20 E.H.R.R. 442. Nor is the penalty proportional to the legitimate aim pursued: see Sunday Times v United Kingdom (No. 2) (1991) 14 E.H.R.R. 229. In any event, the award is excessive and should be quashed or replaced by a lower figure: see the Riches case [1986] QB 256; Broome v Cassell & Co Ltd [1972] AC 1027; Broadway Approvals Ltd v Odhams Press Ltd (No. 2) [1965] 1 WLR 805 and McCarey v Associated Newspapers Ltd (No. 2) [1965] 2 QB 86.

As to compensatory damages, the Court of Appeal should substitute its own figure in the exercise of its powers under section 8 of the Courts and Legal Services Act 1990 and R.S.C., Ord. 59, r. 11(4). The answer to the question whether the award was necessary to compensate the plaintiff and re-establish his reputation (see the Rantzen case [1994] QB 670) is in the negative. The amount awarded was excessive. The defendant's conduct was not unjustifiable and high-handed: see McCarey v Associated Newspapers Ltd (No. 2) [1965] 2 QB 86 and Fielding v Variety Inc. [1967] 2 QB 841.

Damage to reputation will involve consideration of the triviality of the libel, as here, or its gravity. Where a plaintiff asserts that he stands high in public repute his standing will be relevant. A plaintiff who is rich and famous should not obtain a larger award than one who is not. There was no evidence that the article had any effect on the plaintiff's personal or professional standing: see the Rantzen case [1994] QB 670.

Jury awards continue to be excessive (see W. v Meah [1986] 1 All ER 935 and Walker v Sheahan (unreported), 8 July 1994) despite the guidance given in Sutcliffe v Pressdam Ltd [1991] 1 QB 153. [Reference was also made to Abbassy v Comr of Police of the Metropolis [1990] 1 WLR 385 and the Rantzen case [1994] QB 670.] It is open to the Court of Appeal to establish further and better guidelines because that would be a matter of procedure, not substantive law.

Guidance should be given by trial judges and counsel to inform juries of general damages in other areas, in particular personal injury cases: cf. Ward v James [1966] 1 QB 273. [Reference was also made to Bird v Cocking & Sons Ltd [1951] 2 T.L.R. 1260 and Rushton v National Coal Board [1953] 1 QB 495.] Public policy requires a rational relationship between such awards: see McCarey v Associated Newspapers Ltd (No. 2) [1965] 2 QB 86; Carson v John Fairfax & Sons Ltd (1993) 67 A.L.J.R. 634; Coyne v Citizen Finance Ltd (1991) 172 C.L.R. 211; Gorman v Mudd (unreported), 15 October 1992; Court of Appeal (Civil Division) Transcript No. 1076 of 1992 and Houstan v Smith (unreported), 16 December 1993; Court of Appeal (Civil Division) Transcript No. 1544 of 1993. Guidance should also be given of the bracket within which an award should lie.

Desmond Browne Q.C. and David Parsons for the plaintiff. The jury's award of compensatory and exemplary damages was justified by the need to compensate and vindicate the plaintiff and to punish and deter the defendant and other like-minded persons. There was no "substantial wrong or miscarriage" and the Court of Appeal is not therefore bound, even if the judge was guilty of misdirection, to order a new trial and should not do so: see R.S.C., Ord. 59, r. 11(2); Hayward v Thompson [1982] QB 47, 63F; Bray v Ford [1896] AC 44, 47-48, 52-53; Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670; Blackshaw v Lord [1984] QB 1 22F; Broome v Cassell & Co Ltd [1972] AC 1027; 1089F-G and Moore v News of the World [1972] 1 QB 441, 453A-B.

The defendant was vicariously liable for the acts of the writer of the article since he was its agent: see Gatley on Libel and Slander, 8th ed. (1981), pp. 409-410, para. 946; Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500; Smith & Hogan on Criminal Law, 7th ed. (1991), pp. 170-171. Tesco Supermarkets Ltd v Nattrass [1972] AC 153 and Reg. v Holbrook, 3 QBD. 60 are distinguishable on their facts.

The test of guilty knowledge was satisfied. There was sufficient material from which the jury could properly infer recklessness: see Maxwell v Pressdram Ltd (No. 2), The Times, 22 November 1986; Court of Appeal (Civil Division) Transcript No. 1030 of 1986. It was sufficient that the defendant did not care whether the statement was true or false. Recklessness, for present purposes, does not mean failure to take reasonable care to investigate the truth: see Rookes v Barnard [1964] AC 1129; Manson v Associated Newspapers Ltd [1965] 1 WLR 1038; Derry v Peek, 14 App.Cas. 337, 374, 376 and Gatley on Libel and Slander, 8th ed., pp. 340-341, para. 778.

The judge's summing up complied with the guidance in Broome v Cassell & Co Ltd [1972] AC 1027. To escape exemplary damages a defendant must demonstrate a positive belief in the truth of what was published: see the Manson case [1965] 1 WLR 1038 and Horrocks v Lowe [1975] AC 135. [Reference was also made to Royal Brunei Airlines Sdn. Bhd. v Tan [1995] 2 AC 378.]

There was sufficient evidence to justify the conclusion of calculation in the defendant's conduct. Where a defendant does not give evidence such conduct may be established by inference: see Riches v News Group Newspapers Ltd [1986] 1 QB 256, 270; Broome v Cassell & Co Ltd [1972] AC 1027, 1058F and Broadway Approvals Ltd v Odhams Press Ltd (No. 2) [1965] 1 WLR 805.

Only Parliament can abolish exemplary damages: see Rookes v Barnard [1964] AC 1129; and Broome v Cassell & Co Ltd [1972] AC 1027. Whether an award of exemplary damages constitutes a breach of article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms is a matter not for domestic law but for the European Court of Human Rights: see Sunday Times v United Kingdom (No. 2), 14 E.H.R.R. 229. In any event, exemplary damages are well within the wide margin of appreciation conferred on national courts "for the protection of the reputation or rights of others:" see article 10(2) of the Convention. They serve a punitive and deterrent function of vindicating the law and justify the admission of criminal principles into civil law: see Rookes v Barnard [1964] AC 1129, 1226; Wilkes v Wood (1763) Lofft 1 and Broome v Cassell & Co Ltd [1972] AC 1027, 1073, 1114, 1124, 1134. [Reference was also made to the 1993 Law Commission Consultation Paper No. 132, pp. 123, 125, paras. 5.32, 5.34; the Supplementary Consultation Paper: August 1995, p. 1 and Taylor v Beere [1982] 1 N.Z.L.R. 81.]

Exemplary damages have a quasi-restitutionary rationale of preventing unjust enrichment: see McCarey v Associated Newspapers Ltd (No. 2) [1965] 2 QB 86, 107 and Broome v Cassell & Co Ltd [1972] AC 1027, 1130, 1133. Such awards are rare, but the "pressing social need" for the remedy remains. There is no evidence that the remedy has had an adverse effect on the freedom of the press: see the Sutcliffe case [1991] 1 QB 153, 183. It is awards of compensatory damages which have been characterised as excessive: see Walker v Sheahan (unreported) 8 July 1994.

The need for punitive damages is recognised in other common law jurisdictions: see Broome v Cassell & Co Ltd [1972] AC 1027, 1114; XL Petroleum (N.S.W.) Pty. Ltd v Caltex Oil (1985) 155 C.L.R. 448, 471; Lamb v Cotogno (1987) 164 C.L.R. 1, 13; Coloca v B.P. Australia Ltd (1992) VR. 441, 443; Robitaille v Vancouver Hockey Club (1980) 114 D.L.R. (3d) 568; Hill v Church of Scientology of Toronto (1994) 114 D.L.R. (4th) 1; Taylor v Beere [1982] 1 N.Z.L.R. 81; Day v Woodworth (1851) 54 U.S. (13 How.) 363. Given the different jurisprudential basis in Scotland of awards of damages, the fact that exemplary damages may not be awarded in that jurisdiction should be disregarded. [Reference was made to Black v North British Railway, 1908 S.C. 444, 453.]

The purpose of the so-called "if, but only if" direction, which is an antidote to double-counting, is to ensure that exemplary damages are tailored to due punishment and are not awarded if compensatory damages are sufficient. The direction underlines to a jury the need for a social justification for punishment beyond that inherent in the purely compensatory award: see Rookes v Barnard [1964] AC 1129, 1228 and Broome v Cassell & Co Ltd [1972] AC 1027 1116. The judge rightly emphasised that exemplary damages should be the exception, rather than the rule, in defamation actions and his "if, but only if" direction is unassailable.

The means of the parties, irrelevant in the assessment of compensation, is material in the assessment of exemplary damages: see Rookes v Barnard [1964] AC 1129, 1228. In the case of a big corporation, exemplary damages must be substantial: see Manson v Associated Newspapers [1965] 1 WLR 1038, 1045-1046. If there was no precise evidence of its means, the defendant had only itself to blame.

The judge correctly counselled the jury to be reasonable in making the award for compensatory damages and directed them in accordance with the guidance in the Sutcliffe case [1991] 1 QB 153, 178-179, 185-186 and the Rantzen case [1994] 1 QB 670, 696. There is no proper comparison between defamation and personal injury damages. The jury's assessment, unlike the reasoned and conventional approach in personal injury awards, is a gut-reaction. The court must guard against eroding the jury's role and thereby frustrating Parliament's intention in retaining trial by jury in defamation actions: see the Rantzen case and the Sutcliffe case [1991] 1 QB 153. Bird v Cocking & Sons Ltd [1951] 2 T.L.R. 1260 and Rushton v National Coal Board [1953] 1 QB 495 are not in point. Again, unlike personal injury awards, there is in the jury's award an element of vindication for the successful plaintiff: see Broome v Cassell & Co Ltd [1972] AC 1027 and the Rantzen case [1994] QB 670. There is no proper comparison between injury for physical pain and suffering and injury to feelings and reputation: see Winter v News Scotland Ltd, 1991 S.L.T. 828. The approach of other common law jurisdictions has to be analysed within its context and does not assist: see Coyne v Citizen Finance, 172 C.L.R. 211 and Carson v John Fairfax & Sons Ltd, 67 A.L.J.R. 634; (1994) 34 N.S.WLR 72.

Judicial guidance to the jury indicating a bracket for damages is inconsistent with recent authority: see Abbassy v Commissioner of Police of the Metropolis [1990] 1 WLR 385; the Sutcliffe case [1991] 1 QB 153; Ward v James [1966] 1 QB 273; Kiam v Neil, The Times, 14 December 1994; Court of Appeal (Civil Division) Transcript No. 1129 of 1994; the Rantzen case [1994] 1 QB 670 and Hill v Church of Scientology of Toronto, 114 D.L.R. 1. The European Court of Human Rights has accepted English defamation law as applied in the Rantzen case. The lack of specific guidance does not conflict with the requirement of article 10 that any restriction on freedom must be "prescribed by law" and that such prescription should impose a degree of certainty as to the quantum of an award: see Tolstoy Miloslavsky v United Kingdom, 20 E.H.R.R. 442. The discretion of the jury in assessing damages is not unfettered. The Court of Appeal has power to set aside an award on the ground of irrationality: the Tolstoy case, 20 E.H.R.R. 442 and Times Newspapers Ltd v United Kingdom (unreported), 5 March 1990.

The judge did not misdirect the jury on compensatory damages: see Cornwell v Myskow [1987] 1 WLR 630; Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 T.L.R. 581; Bernstein v The Observer Ltd, The Times, 5 May 1976; Court of Appeal (Civil Division) Transcript No. 185A of 1976. The quantum of the jury's award was not excessive. [Reference was made to Gorman v Mudd, 15 October 1992; Court of Appeal (Civil Division) Transcript No. 1076 of 1992; the Rantzen case [1994] QB 670 and Houston v Smith (unreported), 16 December 1993; Court of Appeal (Civil Division) Transcript No. 1544 of 1993.]

Gray Q.C. in reply. Maxwell v Pressdram Ltd (No. 2), The Times, 22 November 1986; Court of Appeal (Civil Division) Transcript No. 1030 of 1986 is distinguishable on its facts.

The Tolstoy case, 20 E.H.R.R. 442 does not support the proposition that exemplary damages are prescribed by law. The requirement of proportionality is not met by the imposition of a large fine for a large corporation and by the judge directing the jury to be reasonable.

Cur. adv vult.

12 December. Sir Thomas Bingham M.R. handed down the following judgment of the court.
This judgment is divided into three parts. Part 1: the facts and the history of the action. Part 2: the principles of law relating to damages in defamation. Part 3: our conclusions on the summing up and the awards of damages.

Part 1: The facts and the history of the action

Neither the appellant, MGN Ltd (the newspaper), nor the respondent, Mr Elton John (the plaintiff), needs any introduction in this appeal which arises from a libel action brought by the latter in respect of an article published in the Sunday Mirror on 27 December 1992. At the conclusion of the trial before Drake J and a jury, the jury awarded the plaintiff GBP350,000 damages, comprising GBP75,000 compensatory damages and GBP275,000 exemplary damages, and judgment was entered accordingly.

The issues in the present appeal concentrate entirely upon this award of damages and its constituent parts. In a nutshell, the newspaper contends that as a matter of principle there is no scope in law for awarding exemplary damages, either generally or in the particular circumstances of the present case, so that the question of exemplary damages should never have been left to the jury at all. Alternatively it submits that the judge misdirected the jury both on exemplary and compensatory damages; and that in any event the sums awarded under both headings were grossly excessive.

The argument before us has raised fundamental questions about jury awards of compensatory and exemplary damages, both generally and with reference to the facts of this case. We have thought it necessary and desirable to address these questions in this judgment.

The article

In the top left-hand corner of the front page of the newspaper there appeared in large letters, accompanied by a photograph of the plaintiff, the words in capital letters 'World exclusive' and 'Elton's "diet of death"'. The reader was then invited to see pp 4 and 5, where the article appeared under a large headline reading 'Secret of slim Elton's spitting image' and, in smaller letters, 'Doctors warn his "don't swallow" diet is a killer'. Below this headline appeared the byline 'EXCLUSIVE from Tony Brenna in Los Angeles and Paul Scott in London'.

The text was in the following terms:

'ROCK superstar Elton John is hooked on a bizarre new diet which doctors have warned could kill him. Millionaire Elton's weight has plummeted since he started eating food then spitting it out without swallowing. The star, who suffered from the eating disorder bulimia, has told friends in America: "I am on the 'Don't swallow and get thin diet' and I can tell you it works. I have got the best of both worlds. I get the flavour without becoming a blimp." But medical experts in Britain called on once-chubby Elton to give up the diet fad before it makes him seriously ill. One said: "This is not a diet, it is another form of bulimia, and that can kill people." Victims of the slimming disease binge on food then force themselves to vomit. ELTON, 45, revealed his latest craze at a Christmas party thrown by his manager, John Reid, at his Hollywood mansion. Guests at the glitzy bash, attended by stars including L.A. Law heart-throb Corbin Bernsen, watched as Elton chewed party snacks, then disposed of them in his napkin. He told revellers: "I love food. I love to eat, but what's the point of swallowing it? You can't taste it as it goes down your throat." The 5ft 6in star, who has been treated for drug, alcohol, and food addictions, boasted that his weight is almost down to 10 stone, adding: "I have finally got all my addictions under control." But one partygoer, who watched Elton spitting chewed shrimp and crab into his napkin, said that the star looked tired and old. "He was wearing a black turtle-neck jumper and a blazer that hung on him loosely. He didn't look well," she said. "He said he was no longer a bulimic, but he often enjoyed eating without actually swallowing." The star joined Overeaters Anonymous when friends persuaded him to seek help about his constant bingeing. He checked into a Chicago clinic on rock pal Rod Stewart's advice after ordering Chinese food and steak from a hotel's room service three times in one afternoon. Last year he confessed he gorged himself on food then made himself sick for six years during "periods of intense distress". Elton, who had jetted into Los Angeles from London, was hugged on his arrival by old pal and manager,JohnReid. Johntold him: "You're too thin. You mustn't overdo this dieting thing, Elton. You look as though you need a good meal." Professor Hubert Lacey, who specialises in eating disorders at St George's Hospital medical school in London, warned: "It is dangerous because the people who do this are abusing food. It is likely to increase the problem for the bulimic, because by spitting out they are starving themselves. Three or four hours later they could binge and then vomit." Paulette Maisner, who runs the Maisner Centre for Eating Disorders in Brighton, added: "Chewing food and not swallowing is one form of bulimia. It will cause all sorts of psychiatric problems and will almost certainly lead to bingeing later. People die from bulimia, although it is not recognised as a cause of death. They usually die of heart attacks or kidney failure because they become dehydrated." A spokesman for Elton said: "I don't know anything about this." But actress Darla Campbell, who chatted to Elton at the party, said: "He told me, 'There was a time when I ballooned up to 12 stone 2lb and those were the unhappiest days of my life. I couldn't look in the mirror.'" Now the star says he is in great shape thanks to his support groups, including Alcoholics Anonymous and Overeaters Anonymous. "But I was still amazed to see him spitting chewed shrimp into napkins" said Darla. "Some people turned away politely when he did it, but Elton didn't seem embarrassed."'

To the left of the article at the top there appeared a photograph of a somewhat obese Mr John with the caption 'Fat and up – Elton John looking chubby but cheery'. On the opposite side appeared another photograph of a much slimmer MrJohn over the caption 'Slim down -- rock superstar Elton seems thinner, but so much more glum'.

The copy on which the article was based had been sent by Mr Brenna to the deputy news editor four days earlier on 23 December. This copy was followed shortly after by a memorandum of the same date, in response to an inquiry by the news editor, describing the alleged sources of Mr Brenna's material, viz Lisa Stanley and Darla Campbell, who were uninvited guests at the party given by Mr John Reid in Los Angeles, and who alleged that they had observed Mr John's eating habits at the party and had spoken to him. It will be necessary in due course to refer to these two documents and to a number of others in order to examine in more detail the provenance of the article as presented by the newspaper. It is also the case for the newspaper, disputed by the plaintiff, that on 23 and 24 December a number of unsuccessful attempts were made by Mr Scott, the co-author of the article, to contact various professional employees of Mr John in order to check the story.

What is undisputed is that on Christmas Eve Mr Scott telephoned Mr Frank Presland, a partner in Messrs Frere Cholmeley Bischoff, the plaintiff's solicitors, and a conversation ensued in which Mr Scott endeavoured to obtain Mr Reid's telephone number in Los Angeles, as recorded by Mr Presland in his contemporaneous attendance note as follows:

'FILE: Elton John/Sunday Mirror

DATE: 24 December 1992

REF: FGP/WPS

Returning Mr Paul Scott's telephone call. Mr Scott told me he was from the Sunday Mirror and they were thinking about running a story about Elton John but had been unable to contact anybody at John Reid's office. The story, which he said was based upon "usual reliable sources" in Los Angeles was that Elton John had an eating disorder and had been recently observed chewing food and spitting it out rather then swallowing it. Mr Scott said it was obviously very bizarre behaviour. I said first of all that I did not know where Mr Reid was at present, but that it seemed unlikely that his allegation was true, but no doubt he would be very careful. He said that his source was "very reliable", and I said that I successfully sue many papers who had first of all told me that. I wished him a Merry Christmas.'

The correspondence

The letter before action on 29 December complained that the article was based on a completely invented story and was plainly libellous of the plaintiff, and sought, inter alia, a full and unqualified apology.

The editor replied that they were investigating the matter, and that their sources remained adamant that the plaintiff attended the party and made the remarks attributed to him, and that they would be interested to know where he said he was at the relevant time.

The writ was issued on 6 January 1993. There then followed an interval of over two months, which culminated in a letter from the editor dated 11 March 1993 upon which the newspaper places great reliance, so that it is appropriate to quote it in full, together with the proposed apology:

'We have completed exhaustive enquiries into the matters raised in your letter of 29 December 1992. We would ask you to accept our apologies for the delay in letting you have our substantive response. As you will understand, our enquiries have entailed reverting to sources in California and this has meant that they have taken somewhat longer than we expected. We hope that Mr John will accept that this is, in fact, an indication that the Sunday Mirror has treated his complaint seriously and with great concern. Our report was written in good faith relying on sources who attended the party referred to in it. Indeed, the article came from an experienced freelance journalist in Los Angeles whose information is normally very reliable. Even after rigorous and extensive cross-examination by representatives of the Sunday Mirror, these sources still remain convinced in their own minds that the person they saw behaving in the manner described in the article was Elton John. We are therefore happy that our sources were seeking to tell us what they genuinely believed to be the truth. Be that as it may, the Sunday Mirror accepts Mr John's word. In the light of his assurance that he did not attend the party (and, of course, did not behave in the manner described), the only possible explanation is that our sources must have made a mistake. In those circumstances, we accept that the allegations published about Mr John should not have been made. We trust Mr John will accept that all at the Sunday Mirror sincerely regret that he should have been hurt and embarrassed by the story: please accept our unreserved apologies on his behalf. I would like to publish an appropriate apology and retraction at the earliest opportunity and I now attach a draft which we have prepared on which I would appreciate your comments. Further, we would be happy to participate in an agreed Statement in Open Court -- we assume this is why you were instructed to issue proceedings in any event. Perhaps you would like to let us have a draft Statement for us to consider. We are keen to bring this matter to an amicable and honourable conclusion as soon as possible. Notwithstanding the observation in your letter of 29 December, we feel sure that Mr John will share our view that this is not, in fact, a case where "very substantial damages" would be appropriate. Nonetheless, as a mark of our sincerity and that of our proposed apology and in order that Mr John should be spared the considerable inconvenience of attending Court to secure a sum of damages to vindicate his reputation, we propose that, in return for your client discontinuing his action: 1. We pay the sum of [figure omitted] to any cause or charity which Mr John may care to nominate, and look forward to hearing from him in this regard. 2. We publish an apology in an agreed form. 3. We join in, if your client so wishes, a Statement in Open Court. 4. We meet your client's reasonable indemnity costs. We trust our offer will be accepted in the conciliatory spirit in which it is made, and we look forward to hearing from you at your earliest convenience.'

The proposed apology was in fact not enclosed with the letter of 11 March, but was sent the next day by the newspaper's solicitor. It was in these terms:

'Elton John-- Apology On 27 December 1992 the Sunday Mirror published an article headlined "Elton's 'diet of death'". This was based on a freelance report of his purported attendance at a party given by his manager John Reid in Hollywood. Although it was published in good faith we are informed by Mr John, and we fully accept, that he did not attend the party and accordingly our comments about his dietary habits were without foundation. We apologise unreservedly to Mr John for the distress caused by the article and we propose to make an appropriate donation to a charity of his choice.'

This was rejected by Mr John's solicitors who particularly objected to what they described as 'the mistaken identity theory' propounded by the editor, and sought a fuller explanation as to the origins and background of the article as a precondition for consideration by the plaintiff of the newspaper's proposals.

Meantime the statement of claim had been delivered on 19 January 1993, and this was followed by the defence which denied that the words were defamatory, a posture which was maintained by the newspaper throughout.

Further correspondence continued in the ensuing months. On 12 August 1993 Mr Presland wrote to the newspaper's solicitor:

'If your Editor is prepared to admit that the article was a wholly invented piece of fiction which was irresponsibly published, then we may be able to make some progress.'

This suggestion was rejected by the newspaper on 23 August. The letter in reply contained this passage:

'The headline, in itself, would be accurate if it referred to his self-confessed seventeen years of drug and dietary abuse which, if it had gone unchecked, [would] have brought his life to a premature close. Your client freely admits to the possession and use of illegal drugs and must be extremely fortunate not ever to have been prosecuted for such use.'

The correspondence continued throughout the rest of the summer and early autumn of 1993, with the plaintiff maintaining his demands, and the newspaper repeating its offer to publish an agreed apology, an impasse which was never resolved.

The introduction of the claim for exemplary damages

The original statement of claim did not claim exemplary damages, but by an amendment made with leave on 22 September 1993 such a claim was added, particularised as follows:

'(1) The Plaintiff did not even attend the Christmas party hosted by Mr.John Reid at his house in Hollywood, which is referred to in the words complained of. (2) Due to his familiar appearance and status as a celebrity, the Plaintiff would be distinctly identifiable to persons attending social events in Hollywood. Contrary to the Defendant's contention in correspondence, there can in the premises be no question of the persons who are professed by the Defendant to be the source of the account of the Plaintiff's presence at the said party (that is to say, other party-goers) having simply made a mistaken identification of the Plaintiff. A prudent and easy way of verifying the accuracy and reliability of the account of the Plaintiff's presence at the said party would in the aforesaid circumstances have been to contact either the Plaintiff or Mr. Reid (or a member of the latter's staff) to enquire whether the Plaintiff had been present at the said party. (3) Notwithstanding the matters aforesaid, at no time prior to the publication of the said words did the Defendant or anyone on its behalf contact (either adequately or at all) either the Plaintiff or Mr. Reid (or a member of the latter's staff) to enquire whether the Plaintiff had been present at the said party. (4) In the premises the Defendant published the said words recklessly, not caring whether they were true or false. (5) The Defendant further chose to give the maximum publicity to the said words by promoting them in sensationalist terms on the front page of the Sunday Mirror in the manner set out under Paragraph 3 hereof. (6) The Defendant thereby employed the said words to attract members of the public to purchase the Sunday Mirror and it is to be inferred in the premises that the Defendant published the said words on the calculated basis that it was likely to gain more financially from such publication than it would have to pay to the Plaintiff if he sued and continued the proceedings to judgment.'

This amendment was resisted by the newspaper, whose appeal was dismissed by the Court of Appeal (Neill, Beldam and Henry LJJ) on 19 October 1993.

The eve of the trial

During the week before the trial began there was a last-minute flurry of activity. On 25 October 1993 the newspaper served a supplemental list of documents itemised below. On 26 October the newspaper's solicitors disclosed the Sunday Mirror's sales figures each week from October 1992 to March 1993, which fluctuated between about 274m and 279m, with the issue presently in question standing at the bottom of the scale. On 27 October 1993 the plaintiff disclosed Mr Presland's attendance note.

The supplementary list comprised the following documents as far as relevant: (i) Mr Brenna's original draft article; (ii) some shorthand notes of Mr Scott with the telephone numbers of the offices of persons employed professionally by the plaintiff; (iii) a tape of conversations between Mr Scott and two doctors, on or about 23 December 1992; (iv) the memorandum from Mr Brenna dated about 23 December referred to above; (v) an account dated 7 January 1993 of an interview between Mr Brenna and the two informants at the party, of which a tape was supplied to the plaintiff's solicitors on 1 November.

The list also referred to two documents which had been 'lost or destroyed', viz: (a) an original draft article prepared by Mr Brenna and destroyed on his computer by adverse weather on 20 December 1992; (b) a tape of a prepublication interview (together with transcript) with the two sources by Mr Brenna.

The provenance of the article

These documents, which vividly illustrate the provenance of the article, are relied on by both sides from their respective viewpoints on the issue of exemplary damages.

The draft article by Mr Brenna was in the following terms:

'Rock star Elton John's weight has plunged and his clothes are hanging off him thanks to a bizarre new habit of eating food then spitting it out. Attending a Hollywood Christmas party given for him by his manager, John Reid, Elton was eating party snacks, then disposing of them in a napkin. "I love food, I love to eat, but what's the point of swallowing it, you can't taste it as it goes down your throat," Elton explained to puzzled guests. "I'm on the great don't swallow the food and get thin diet, I can tell you it works." Elton, 45 and 5ft 6ins tall, who has been treated for drug, alcohol and food addictions, said his weight had dropped to just over 10 stone -- "and I've finally got all my addictions under control." But according to a TV reporter [name omitted] who watched Elton depositing chewed shrimp and crab in his napkin, he looked tired and old. "He was wearing a black turtle neck and a blazer that hung on him loosely, he didn't look well", says Lisa. "He said that he was no longer a bulimic, bingeing on food then rushing to the bathroom to vomit it up, but he often enjoyed eating without actually swallowing." Elton, who had just arrived from London, was hugged on arrival by old pal John Reid, who commented: "Oh, God, you look wonderful, but you're too thin. You mustn't overdo this dieting thing, Elton. It's not good for you, you look as though you need a good meal." But that suggestion didn't please Elton according to actress [name omitted], who chatted with him. "Elton told me, 'there was a time when I ballooned up to 170 pounds -- and those were the unhappiest days of my life . . . I couldn't look in a mirror.'" Now Elton says he's in great shape, thanks to his various support groups: Alcoholics Anonymous and Overeaters Anonymous. "But I was still amazed to see him spitting chewed shrimp into napkins," says [name omitted]. "Some people turned away politely when he did it, but Elton didn't seem in the least bit embarrassed. He smiled and said: 'I got the best of both worlds, darling, I get the flavour without becoming a blimp.'"

Mr Brenna's contemporaneous memorandum, which began 'Tony Brenna, LA -- memo att news desk' stated as follows:

'With reference to Elton John bizarre eating habits story. Lisa Stanley attended the Christmas party given by Elton's manager, George [sic] Reid, personally with two of her friends and spoke to Elton John for more than half an hour. During that time he took a shrimp out of his mouth and put them in a napkin. This action was also witnessed by Lisa's fellow guest Darla Campbell, also at the party and quoted in the story. Both women know they are on the record. Stanley is now working as a television reporter for the American programme Hard Copy and has always been an entirely reliable source as far as I am concerned. I have her comments about the party on tape and in writing. Regards.'

The transcripts of the conversation with the two doctors contained discussions in general terms of the serious dangers of a regime of dieting as described in the article, but with no reference to the plaintiff personally.

It will be remembered that it was stated in the newspaper's supplemental list of documents dated 25 October 1993 that the tape of the prepublication interview between Mr Brenna and his two sources (together with the transcript of the tape) had been lost or destroyed. A transcript was available, however, of the telephone conversations which Mr Brenna had with his two sources on 7 January 1993, and of the report which Mr Brenna sent to London on the same day.

According to this transcript, in her conversation with Mr Brenna on 7 January Lisa Stanley described how she and Darla Campbell and another girl had lost their way en route to a different party, and, having followed some other cars, eventually arrived uninvited at Mr Reid's house at about 10.30 pm to 11 pm when the party was 'just winding down'. They soon realised they had come to the wrong party, but introduced themselves nonetheless and were welcomed by Mr Reid. They then went into the kitchen and saw a man 'who . . . looks exactly like Elton John', and who was referred to by the other people as Elton: '. . . he looked tired . . . and he had a cocktail glass in one hand and coke in another and he was eating shrimps and he was chewing the shrimps and spitting them back out on a napkin'. What she said then happened she described as follows:

'So basically Darla started laughing and saying, my God what's he doing -- why swallow it darling, you cannot taste it anyway, so when it goes down you cannot taste it anyway. So he and Darla start laughing and we said oh what a great way to lose weight, and he said "precisely". So then he said, I'm clean, I'm sober . . . I want to stay healthy, I don't want to overload -- I remember what else he said, I don't want to overload my body with too much.'

When asked by Mr Brenna how she knew he was Elton John she replied:

'I mean they were calling him Elton John, well they weren't calling him Elton John, they were calling him Elton . . . Just the people in the kitchen. OK, actually one guy kept coming up to him saying sir, would you like another coke?'

Mr Brenna then asked Lisa Stanley whether she would have known Elton John.

She replied:

'I had never seen him . . . that was my first time in person. Come on, I was born and raised in this town, in my life I have seen him in concert about a dozen times. I am not from the Boondocks. I mean he did look thinner than the normal Elton John, and he does have those hair things.'

Darla Campbell gave a similar description, and said she had no doubt it was Elton John, and that people were calling him Elton.

The trial

The trial began on 1 November 1993, and during his opening Mr Carman QC made it plain to the jury that, on the basis of this recently disclosed material, he was going to allege as part of his case on exemplary damages that parts of the article were pure invention by Mr Brenna and/or the newspaper's editorial staff, and that the newspaper was legally responsible for the former's recklessness.

On 1 November the plaintiff himself gave evidence, followed by Mr Presland, Mr Reid, and a number of representatives of the firm to whom, it was alleged, Mr Scott tried to speak just before Christmas.

The kernel of Mr John's evidence, concerning the effect the article had upon him, was well summarised by the judge in his summing up as follows:

'You bear in mind, you remember, the plaintiff's case on this that he had had terrible problems in his life with his addiction to drugs, alcohol and his eating problems. He had determined to give them up and he had worked very hard indeed, and for a year he had done nothing and cured himself of these addictions which, he realised, had made his life terrible. He had attended a hospital in Chicago. He had attended frequent meetings at Alcoholics Anonymous, Narcotics Anonymous, Overeaters or Bulimia Anonymous. He told you he had been to something like 1,350 meetings in order to have himself completely cured. He had cured himself. He had gone on the David Frost show in order to publicise the fact he was a cured man and, at the same time, he said he hoped to help others who had similar problems. Because of that he told you it was particularly distressful for him when this article was published. He told you of the circumstances in which the article came to his attention. He was at his home in Atlanta in America when his mother who had got the newspaper in England telephoned him. "She read the article out in full at my request", he said. "I was incensed, absolutely outraged. The most satisfactory thing I have done in my life is to admit my problems, the drugs and food and face up to it, and this article seemed to say I had problems", in other words, that he had failed to cure himself. Do take that into account in assessing the appropriate damages to award him as compensation for distress.'

Mr Reid described the party, and stated that the two girls had been asked to leave after three-quarters of an hour because they were drunk.

The other representatives testified that their respective offices were open during normal office hours on 23 and 24 December, and that they had no record of any call from Mr Scott. There was then a submission by Lord Williams QC on behalf of the newspaper that exemplary damages should not be left to the jury. One aspect of this submission related directly to the expanded case on exemplary damages, it being Lord Williams' contention that the newspaper was not vicariously responsible for Mr Brenna's recklessness if established. This submission was rejected by the judge, who held that there was evidence fit for the jury to consider: (a) as to the newspaper's own recklessness; and (b) as to the recklessness of Mr Brenna, whom the judge held to have taken part in the publication and for whom in any event the newspaper was vicariously responsible. The newspaper called no evidence.

The summing up and verdict

There were three issues for the jury to consider: (a) whether the words were defamatory; (b) if so, compensatory damages; and (c) exemplary damages. It is unnecessary to say any more about the first issue.

During the course of his summing up the judge considered the issue of compensatory and exemplary damages quite separately. We shall have to consider later the judge's directions on both compensatory and exemplary damages because one of the matters raised in the notice of appeal is that these directions were erroneous.

After a retirement of four hours, the jury returned with a unanimous verdict for the plaintiff on liability, and after a further hour's retirement returned with their award of damages by a ten to two majority.

The grounds of appeal

These may be summarised as follows. (1) That the judge should have withdrawn the question of exemplary damages from the jury at the close of the plaintiff's case. (2) That the judge misdirected the jury on the way they should approach the question whether they should award exemplary damages. (3) That furthermore the sum awarded by the jury for exemplary damages was excessive in that no jury properly directed could have arrived at it as an appropriate sum. (4) That the judge misdirected the jury on the question of compensatory damages. (5) That, furthermore, the sum awarded for compensatory damages was excessive and unreasonable and incompatible with the award of the Court of Appeal in Rantzen v Mirror Group Newspapers (1986) Ltd [1993] 4 All ER 975, [1994] QB 670. (6) That in any event the awards of both compensatory and exemplary damages were so high as to amount to a restriction or penalty upon the defendant's freedom of expression, and therefore contrary to art 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969). Before we come to consider these grounds of appeal, however, it is first necessary to examine in some detail the principles of law relating to damages in defamation and the present guidance given to juries in actions for libel and slander.

PART 2 THE PRINCIPLES OF LAW RELATING TO DAMAGES IN DEFAMATION

Introduction

It is standard practice for plaintiffs in defamation actions to claim damages and also an injunction against repetition of the publication complained of. If the action is compromised, the defendant ordinarily undertakes not to repeat the publication. If the action goes to trial and the plaintiff wins and recovers damages, the defendant ordinarily undertakes not to repeat the publication, and if he is unwilling to give that undertaking an injunction restraining him from further publication will usually be granted. But it is the award of damages, not the grant of an injunction (in lieu of an undertaking), which is the primary remedy which the law provides on proof of this tort, both because, save in exceptional cases, the grant of an injunction in practice follows and is dependent on success in recovering damages, and also because an injunction, while giving the plaintiff protection against repetition in future, gives him no redress for what has happened in the past. It is to an award of damages that a plaintiff must look for redress, and the principles governing awards of damages are accordingly of fundamental importance in ensuring that justice is done to plaintiffs and defendants and that account is taken of such public interests as may be involved.

Compensatory damages

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 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. 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. 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 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.

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 (eg Diplock LJ in McCarey v Associated Newspapers Ltd (No 2) [1964] 3 All ER 947 at 960, [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 & Co Ltd v Broome [1972] 1 All ER 801 at 824, [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 [1965] 1 All ER 563 at 575-576, [1966] 1 QB 273 at 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 [1990] 1 All ER 269, [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 [1990] 1 All ER 269 at 283-284, 289, 293, [1991] 1 QB 153 at 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.

Following the enactment of s 8(2) of the Courts and Legal Services Act 1990 and the introduction of RSC Ord 59, r 11(4) in its present form, the Court of Appeal was for the first time empowered, on allowing an appeal against a jury's award of damages, to substitute for the sum awarded by the jury such sum as might appear to the court to be proper. This power was exercised in Gorman v Mudd [1992] CA Transcript 1076. In that case the plaintiff was a member of Parliament who sued one of her constituents for a libel contained in a mock press release. There was publication to 91 people only, but these were prominent, influential, local and knowledgeable members of the constituency party. The defendant advanced and persisted in pleas of justification and qualified privilege. The plaintiff alleged malice. There was a two-week trial, during which the plaintiff was the subject of insulting and distressing questions. The jury rejected the defence of justification and found that the defendant had been actuated by personal spite. They awarded compensatory damages of GBP150,000. The Court of Appeal held this award to be so grossly and seriously excessive and extravagant as to merit a new trial, but exercised its power to substitute an award and concluded that nothing in excess of GBP50,000 could be justified. Rose LJ observed:

'It was not even open to the judge, for example, to invite the jury to consider whether an award in one, two, three, four, five or six figures might be appropriate. This being the law, the inevitable consequence is that it is something of a lottery what sum a jury will award in an action for defamation . . .'

In Rantzen v Mirror Group Newspapers (1986) Ltd [1993] 4 All ER 975, [1994] QB 670 the newspaper appealed against a jury's award of GBP250,000, contending that the size of the award was wholly disproportionate to the damage done to the plaintiff's reputation. The court concluded that at that time it would not be right to allow reference to be made to awards by juries in previous cases. But it took the view that awards made by the Court of Appeal stood on a different footing: over a period of time awards made by the Court of Appeal would provide a corpus to which reference could be made in subsequent cases (see [1993] 4 All ER 975 at 995, [1994] QB 670 at 694). With reference to the argument advanced for the newspaper that judges should be free to remind juries of conventional levels of awards of general damages for pain and suffering and loss of amenity in personal injury cases, the court reviewed previous authority and said ([1993] 4 All ER 975 at 997, [1994] QB 670 at 695):

'We see the force of the criticism of the present practice whereby a plaintiff in an action for libel may recover a much larger sum by way of damages for an injury to his reputation, which may prove transient in its effect, than the damages awarded for pain and suffering to the victim of an industrial accident who has lost an eye or the use of one or more of his limbs. We have come to the conclusion, however, that there is no satisfactory way in which the conventional awards in actions for damages for personal injuries can be used to provide guidance for an award in an action for defamation. Despite [counsel for the defendant's] submissions to the contrary, it seems to us that damages for defamation are intended at least in part as a vindication of the plaintiff to the public. This element of the damages was recognised by Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150 and by Lord Hailsham LC in Cassell & Co Ltd v Broome [1972] 1 All ER 801 at 824, [1972] AC 1027 at 1071. We therefore feel bound to reject the proposal that the jury should be referred to awards made in actions involving serious personal injuries. It is to be hoped that in the course of time a series of decisions of the Court of Appeal will establish some standards as to what are, in the terms of s 8 of the 1990 Act, "proper" awards. In the meantime the jury should be invited to consider the purchasing power of any award which they may make. In addition they should be asked to ensure that any award they make is proportionate to the damage which the plaintiff has suffered and is a sum which it is necessary to award him to provide adequate compensation and to re-establish his reputation.'

The parties in Houston v Smith [1993] CA Transcript 1544 were general medical practitioners, formerly partners. The male plaintiff claimed damages for slander against the female defendant, who had accused him of sexually harassing her and members of her staff. The accusation was originally made before a small audience in the practice waiting room, but was later repeated and a defence of justification (albeit on a limited basis) was advanced and persisted in. The jury awarded compensatory damages of GBP150,000. The Court of Appeal held that sum to be excessive and substituted an award of GBP50,000. Hirst LJ said:

'I should add that this amount is, in my judgment, at the very top of the range for a slander of this kind, and is only appropriate because of the very grave and exceptional aggravating factors to which I have already referred. Had the slander remained within the confines of the waiting room and, still more, if the defendant had promptly apologised, the appropriate sum would have been a very small fraction of GBP50,000.'

Neill and Beldam LJJ agreed.

For the newspaper in the present case Mr Gray QC repeats the argument which he advanced, and which was rejected, in Rantzen on the permissibility of referring to levels of awards in personal injury cases. He recognises the difficulty of seeking to persuade the court now to accept an argument which it so recently rejected, but contends that a number of factors justify reconsideration of that ruling and a different result.

First, Mr Gray points out that the corpus of experience which the court in Rantzen envisaged as a source of guidance has in practice scarcely developed, with the result that juries still receive little assistance from that source.

Secondly, Mr Gray points to the continuance of what appear to be grossly excessive awards. He instances the award of GBP750,000 to Mr Graham Souness, settled (after the newspaper appealed) for GBP100,000; and the award of GBP1.5m to the plaintiffs in Walker v Shehan [1995] CA Transcript 1092, again settled on appeal.

Thirdly, he draws attention to the changing views of a majority in the High Court of Australia. In Coyne v Citizen Finance Ltd (1991) 172 CLR 211 a minority favoured permitting reference to personal injury awards in directing libel juries. In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 the balance of opinion had swung. It was now a majority, led by Mason CJ, who favoured permitting such reference.

Fourthly, Mr Gray relies on art 10 of the European Convention on Human Rights, coinciding (as this article has been authoritatively held to do: see A-G v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545 at 580-582, 597, 615, 627, 652, 660, [1990] 1 AC 109 at 156-159, 178, 203, 218, 273, 283 and Derbyshire CC v Times Newspapers Ltd [1993] 1 All ER 1011 at 1020, [1993] AC 534 at 550) with the provisions of the English common law. This was an argument also advanced in Rantzen, but since then the European Court of Human Rights has decided Tolstoy Miloslavsky v UK (1995) 20 EHRR 442. In that case an award was made of GBP1.5m compensatory damages, and the court held that the size of the award, in conjunction with the lack of adequate and effective safeguards at the relevant time (before Rantzen) against a disproportionately large award, amounted to a violation of the defendant's rights under art 10 of the convention.

We are persuaded by Mr Gray's argument that this subject deserves reconsideration, despite the short period since the Rantzen ruling was given. Any legal process should yield a successful plaintiff appropriate compensation, that is, compensation which is neither too much nor too little. That is so whether the award is made by judge or jury. No other result can be accepted as just. But there is continuing evidence of libel awards in sums which appear so large as to bear no relation to the ordinary values of life. This is most obviously unjust to defendants. But it serves no public purpose to encourage plaintiffs to regard a successful libel action, risky though the process undoubtedly is, as a road to untaxed riches. Nor is it healthy if any legal process fails to command the respect of lawyer and layman alike, as is regrettably true of the assessment of damages by libel juries. We are persuaded by the arguments we have heard that the subject should be reconsidered. This is not a field in which we are bound by previous authority (Sutcliffe v Pressdram Ltd [1990] 1 All ER 269 at 283, [1991] 1 QB 153 at 178) but it is necessary for us to review the arguments which have found favour in the past.

In considering the criticisms of the present lack of guidance which is given to juries on the issue of compensatory damages we have examined four possible changes in the present practice: (a) reference to awards by other juries in comparable actions for defamation; (b) reference to awards approved by the Court of Appeal or substituted by the Court of Appeal in accordance with Ord 59, r 11(4); (c) reference to the scale of damages awarded in actions for personal injuries; and (d) submissions by counsel as to the appropriate award, coupled with some guidance by the judge as to the appropriate bracket.

Other awards in actions for defamation

We wholly agree with the ruling in Rantzen that juries should not at present be reminded of previous libel awards by juries. Those awards will have been made in the absence of specific guidance by the judge and may themselves be very unreliable markers.

The position may change in the future if the additional guidance which we propose later in this judgment is given and proves to be successful. As was pointed out in the course of argument, however, comparison with other awards is very difficult because the circumstances of each libel are almost bound to be unique. Furthermore, the corpus of such awards will be likely to become unwieldy and time would be expended on the respective parties pointing to features which were either similar or dissimilar in the other cases.Awards approved or substituted by the Court of Appeal.

We agree with the ruling in Rantzen that reference may be made to awards approved or made by the Court of Appeal. As and when a framework of awards is established this will provide a valuable pointer to the appropriate level of award in the particular case. But it is plain that such a framework will not be established quickly: it is now five years since s 8(2) of the 1990 Act and Ord 59, r 11(4) came into force, and there is no case other than Gorman, Rantzen and Houston in which the court has itself fixed the appropriate level of award.

It is true that awards in this category are subject to the same objection that time can be spent by the parties on pointing to similarities and differences. But, if used with discretion, awards which have been subjected to scrutiny in the Court of Appeal should be able to provide some guidance to a jury called upon to fix an award in a later case.

Reference to damages in actions for personal injuries

In Cassell & Co Ltd v Broome [1972] 1 All ER 801 at 824, [1972] AC 1027 at 1071 Lord Hailsham LC gave his reason for rejecting comparison with awards of damages for personal injuries. He said:

'In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, 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. As Windeyer J well said in Uren v John Fairfax & Sons Pty Ltd (1967) 117 CLR 118 at 150: "It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways -- as a vindication of the plaintiff to the public, and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money." This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being "at large". In a sense, too, these damages are of their nature punitive or exemplary in the loose sense in which the terms were used before 1964, because they inflict an added burden on the defendant proportionate to his conduct, just as they can be reduced if the defendant has behaved well -- as for instance by a handsome apology -- or the plaintiff badly, as for instance by provoking the defendant, or defaming him in return. In all such cases it must be appropriate to say with Lord Esher MR in Praed v Graham, (1889) 24 QBD 53 at 55: ". . . in actions of libel . . . the jury in assessing damages are entitled to look at the whole conduct of the defendant [I would personally add 'and of the plaintiff'] from the time the libel was published down to the time they give their verdict. They may consider what his conduct has been before action, after action, and in court during the trial."' (Windeyer J's emphasis.)

This reasoning would weigh strongly against any attempt to equiparate damages for personal injuries and damages for defamation. It would not weigh so heavily, if at all, against reference to conventional levels of award for personal injuries as a check on the reasonableness of a proposed award of damages for defamation.

The reasons given by the Court of Appeal in Sutcliffe v Pressdram [1990] 1 All ER 269, [1991] 1 QB 153 for rejecting any analogy between defamation and personal injury damages were twofold. The first was that the measure of damages is or may be different in the two cases, essentially because defamation damages have to reflect any aggravation caused to the plaintiff by the defendant's subsequent conduct, or any mitigation, and by the need to vindicate the plaintiff's good name (see [1990] 1 All ER 269 at 281, [1991] 1 QB 153 at 175). The second was that Parliament has provided for different modes of trial in the two classes of case.

The first reason given for rejecting reference to personal injury awards was essentially that deployed by Lord Hailsham LC in Cassell & Co Ltd v Broome. We would make the same comment as we have made above. On the second reason we would make three observations. First, we simply do not know whether Parliament gave any thought to the assessment of damages by juries when enacting s 69 of the Supreme Court Act 1981. Secondly, the making of grossly excessive awards by libel juries was not in 1981 the source of concern which it has since become. Thirdly, it is not suggested that juries should not assess damages in defamation actions, only that they should receive guidance when doing so.

In the passage from the judgment of the court in Rantzen which is quoted above, the Court of Appeal essentially adopted the approach of Lord Hailsham LC in Cassell & Co Ltd v Broome in concluding that there was no satisfactory way in which conventional awards in actions for damages for personal injuries could be used to provide guidance for an award in an action for defamation. Much depends, as we now think, on what is meant by guidance: it is one thing to say (and we agree) that there can be no precise equiparation between a serious libel and (say) serious brain damage; but it is another to point out to a jury considering the award of damages for a serious libel that the maximum conventional award for pain and suffering and loss of amenity to a plaintiff suffering from very severe brain damage is about GBP125,000 and that this is something of which the jury may take account.

It is of interest that in the present case Drake J, who has much recent experience in this field, expressed some criticism of the existing rules. He observed:

'. . . counsel made submissions on the extent to which it is proper to address the jury in speeches or in the summing up on the quantum of damages. I need only say that although I think the law is in need of change, I shall have regard to the guidelines given by the Court of Appeal in Rantzen v Mirror Group Newspapers (1986) Ltd [1993] 4 All ER 975, [1994] QB 670. I shall therefore not make any comparison with awards in personal injury cases. I shall invite the jury to consider the purchasing power of any award they make.'

It has often, and rightly, been said that there can be no precise correlation between a personal injury and a sum of money. The same is true, perhaps even more true, of injury to reputation. There is force in the argument that to permit reference in libel cases to conventional levels of award in personal injury cases is simply to admit yet another incommensurable into the field of consideration. There is also weight in the argument, often heard, that conventional levels of award in personal injury cases are too low and therefore provide an uncertain guide. But these awards would not be relied on as any exact guide, and of course there can be no precise correlation between loss of a limb, or of sight, or quadriplegia, and damage to reputation. But if these personal injuries respectively command conventional awards of, at most, about GBP52,000, GBP90,000 and GBP125,000 for pain and suffering and loss of amenity (of course excluding claims based on loss of earnings, the cost of care and other specific financial claims), juries may properly be asked to consider whether the injury to his reputation of which the plaintiff complains should fairly justify any greater compensation. The conventional compensatory scales in personal injury cases must be taken to represent fair compensation in such cases unless and until those scales are amended by the courts or by Parliament. It is in our view offensive to public opinion, and rightly so, 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 or an insensate vegetable. The time has in our view come when judges, and counsel, should be free to draw the attention of juries to these comparisons.

Reference to an appropriate award and an appropriate bracket

It has been the invariable practice in the past that neither counsel nor the judge may make any suggestion to the jury as what would be an appropriate award. This practice was in line with the practice followed in actions for personal injuries when such actions were tried with a jury. In Ward v James [1965] 1 All ER 563 at 576, [1966] 1 QB 273 at 302 the Court of Appeal gave reasons as to why no figures should be mentioned. It was said:

'If the judge can mention figures to the jury, then counsel must be able to mention figures to them. Once that happened, we get into the same trouble again. Each counsel would, in duty bound, pitch the figures as high or as low as he dared. Then the judge would give his views on the rival figures. The proceedings would be in danger of developing into an auction.'

In Sutcliffe v Pressdram [1990] 1 All ER 269 at 292, [1991] 1 QB 153 at 190 Russell LJ gave his reasons for rejecting the argument that counsel or the judge might be allowed to refer to figures. He approved the following passage in the summing up by Michael Davies J in that case:

'"Well, supposing I were to suggest a figure to you or a bracket. Supposing I were to say: 'If she succeeds, what about giving her between so much and so much.' Well, there are two possibilities. One is that you would say I was quite wrong and you would either give much more than I suggested or much less. Well now, can you imagine what would happen then? The party that did not like it, the plaintiff if you have given much less, or the defendant if you have given much more than I suggested, would be off to the Court of Appeal saying: 'Well, look at that jury, they were quite unreasonable. Here was this experienced judge suggesting a figure to them and they ignored it.' You can see readily how that would happen. Supposing you did give the figure, or very close to the figure, that I suggested to you, well then, you would have been wasting your time here on damages, you would simply be acting as a rubber stamp for me . . . So we look to you, as representatives of the public, applying the principles I have indicated, if you come to damages, to come to that figure.'

We have come to the conclusion, however, that the reasons which have been given for prohibiting any reference to figures are unconvincing. Indeed, far from developing into an auction (and we do not see how it could), the process of mentioning figures would, in our view, induce a mood of realism on both sides.

In personal injury actions it is now commonplace for the advocates on both sides to address the judge in some detail on the quantum of the appropriate award. Any apprehension that the judge might receive a coded message as to the amount of any payment into court has not to our knowledge been realised. The judge is not in any way bound by the bracket suggested, but he finds it helpful as a check on his own provisional assessment. We can for our part see no reason why the parties' respective counsel in a libel action should not indicate to the jury the level of award which they respectively contend to be appropriate, nor why the judge in directing the jury should not give a similar indication. The plaintiff will not wish the jury to think that his main object is to make money rather than clear his name. The defendant will not wish to add insult to injury by underrating the seriousness of the libel. So we think the figures suggested by responsible counsel are likely to reflect the upper and lower bounds of a realistic bracket. The jury must, of course, make up their own mind and must be directed to do so. They will not be bound by the submission of counsel or the indication of the judge. If the jury make an award outside the upper or lower bounds of any bracket indicated and such award is the subject of appeal, real weight must be given to the possibility that their judgment is to be preferred to that of the judge.

The modest but important changes of practice described above would not in our view undermine the enduring constitutional position of the libel jury. Historically, the significance of the libel jury has lain not in their role of assessing damages, but in their role of deciding whether the publication complained of is a libel or no. The changes which we favour will, in our opinion, buttress the constitutional role of the libel jury by rendering their proceedings more rational and so more acceptable to public opinion.

Exemplary damages

A summary of the existing English law on exemplary damages in actions for defamation, accepted by the Court of Appeal in Riches v News Group Newspapers Ltd [1985] 2 All ER 845 at 850, [1986] QB 256 at 269 as concise, correct and comprehensive, appears in Duncan and Neill on Defamation (2nd edn, 1983) para 18.27. The passage remains a correct summary of the relevant law. So far as relevant to this case, and omitting footnotes and references, the passage reads:

'(a) Exemplary damages can only be awarded if the plaintiff proves that the defendant when he made the publication knew that he was committing a tort or was reckless whether his action was tortious or not, and decided to publish because the prospects of material advantage outweighed the prospects of material loss. "What is necessary is that the tortious act must be done with guilty knowledge for the motive that the chances of economic advantage outweigh the chances of economic, or perhaps physical, penalty". (b) The mere fact that a libel is committed in the course of a business carried on for profit, for example the business of a newspaper publisher, is not by itself sufficient to justify an award of exemplary damages. (c) If the case is one where exemplary damages can be awarded the court or jury should consider whether the sum which it proposes to award by way of compensatory damages is sufficient not only for the purpose of compensating the plaintiff but also for the purpose of punishing the defendant. It is only if the sum proposed by way of compensatory damages (which may include an element of aggravated damages) is insufficient that the court or jury should add to it enough "to bring it up to a sum sufficient as punishment". (d) The sum awarded as damages should be a single sum which will include, where appropriate, any elements of aggravated or exemplary damages . . . (f) A jury should be warned of the danger of an excessive award. (g) The means of the parties, though irrelevant to the issue of compensatory damages, can be taken into account in awarding exemplary damages . . .'

This summary of the law was not challenged in argument before us, and it was not seriously argued that we could rule (even if we wished) that exemplary damages are not recoverable in defamation if the conditions required by authority for making such an award are established to the proper satisfaction of a jury. We were, however, reminded by the newspaper that in English law the award of exemplary damages is regarded as exceptional and in some ways anomalous. Authority, it was said, does not encourage any broadening of the categories of case in which such awards may be made nor any relaxation of the conditions for making them. Since art 10 of the European Convention on Human Rights requires any restriction on freedom of expression to be prescribed by law and necessary in a democratic society for the protection of reputation, it was argued that the conditions for making an exemplary award should be closely scrutinised and rigorously applied. Our attention was accordingly drawn to certain aspects of the conditions established by authority.

First, the state of mind of the defendant publisher. Little difficulty arises in the straightforward but relatively rare case in which it can be shown that the defendant actually knew that he was committing a tort when he published. The alternative state of mind -- recklessness -- is not so easy.

In Derry v Peek (1889) 14 App Cas 337, [1886-90] All ER Rep 1 Lord Herschell classically defined the state of mind necessary to establish deceit. He made clear that proof of fraud is essential and continued (14 App Cas 337 at 374, [1886-90] All ER Rep 1 at 22):

'Secondly, fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth.'

Important for present purposes is Lord Herschell's assimilation of recklessness and carelessness whether a statement is true or false, with lack of honest belief in its truth. He was at pains to distinguish these states of mind, which were sufficient to ground a claim in deceit, from the making of a false statement through lack of care and the making of a false representation honestly believed though on insufficient grounds, which were not (see eg 14 App Cas 337 at 375, [1886-90] All ER Rep 1 at 22).

It would seem that Lord Devlin was thinking in a similar way, when he spoke in Rookes v Barnard [1964] 1 All ER 367 at 410, [1964] AC 1129 at 1227 of 'a cynical disregard for a plaintiff's rights'. Such, plainly, was the approach of Widgery J in Manson v Associated Newspapers Ltd [1965] 2 All ER 954 at 957, [1965] 1 WLR 1038 at 1040, where he ruled that exemplary damages may be awarded --

'in a case in which a newspaper quite deliberately publishes a statement which it either knows to be false or which it publishes recklessly, careless whether it be true or false . . .'

He defined the question for him as whether he could, on the material available, tell the jury that they could consider exemplary damages if, having considered the material before them, they were driven to the inference that the article in question had been published by the defendants 'conscious of the fact that it had no solid foundation'. In directing the jury he equated recklessness with not really believing a statement to be true at all. He instructed the jury that they had to be satisfied that the defendant had acted in a wicked and callous fashion (see [1965] 2 All ER 954 at 957, 958, [1965] 1 WLR 1038 at 1041, 1043).

In Cassell & Co Ltd v Broome [1972] 1 All ER 801 at 831, [1972] AC 1027 at 1079 Lord Hailsham LC required 'knowledge that what is proposed to be done is against the law or a reckless disregard whether what is proposed to be done is illegal or legal'. Lord Reid spoke of 'contumelious disregard of another's rights' (see [1972] 1 All ER 801 at 838, [1972] AC 1027 at 1088). Lord Morris referred to a defendant wilfully or knowingly or recklessly peddling untruths and Viscount Dilhorne approved that formula (see [1972] 1 All ER 801 at 843, 849, [1972] AC 1027 at 1094, 1101). Lord Diplock regarded this category as consisting of cases where 'an act known to be tortious was committed' and added:

'To bring a case within this category it must be proved that the defendant, at the time that he committed the tortious act, knew that it was unlawful or suspecting it to be unlawful deliberately refrained from taking obvious steps which, if taken, would have turned suspicion into certainty.' (See [1972] 1 All ER 801 at 872, 874, [1972] AC 1027 at 1129, 1130.)

Lord Kilbrandon referred to a publisher knowing or not caring whether his material is libellous and to a publisher knowing or having reason to believe that publication would subject him to compensatory damages (see [1972] 1 All ER 801 at 876, [1972] AC 1027 at 1133).

Where actual knowledge of unlawfulness is not in issue, a jury direction based on reference to 'reckless, not caring whether the publication be true or false' is sanctioned by long usage and is not incorrect. The crucial ingredient of this state of mind is, however, a lack of honest or genuine belief in the truth of what is published. That is what makes the publisher's conduct so reprehensible (or 'wicked') as to be deserving of punishment. Carelessness alone, however extreme, is not enough unless it properly justifies an inference that the publisher had no honest belief in the truth of what he published.

It seems to us therefore that the phrase 'not caring whether the publication be true or false', though an accurate formulation of the test of recklessness, is capable of leading to confusion because the words 'not caring' may be equated in the jury's minds with 'mere carelessness'. We therefore consider that where exemplary damages are claimed the jury should in future receive some additional guidance to make it clear that before such damages can be awarded the jury must be satisfied that the publisher had no genuine belief in the truth of what he published. The publisher must have suspected that the words were untrue and have deliberately refrained from taking obvious steps which, if taken, would have turned suspicion into certainty.

Secondly, the publisher must have acted in the hope or expectation of material gain. It is well established that a publisher need not be shown to have made any precise or arithmetical calculation. But his unlawful conduct must have been motivated by mercenary considerations: the belief that he would be better off financially if he violated the plaintiff's rights than if he did not. Mere publication of a newspaper for profit is not enough.

We do not accept, as was argued, that in seeking to establish that the conditions for awarding exemplary damages have been met the plaintiff must satisfy the criminal, rather than the civil, standard of proof. But a jury should in our judgment be told that as the charge is grave, so should the proof be clear. An inference of reprehensible conduct and cynical calculation of mercenary advantage should not be lightly drawn. In Manson [1965] 2 All ER 954 at 959, [1965] 1 WLR 1038 at 1044 Widgery J directed the jury that they could draw inferences from proved facts if those inferences were 'quite inescapable', and he repeatedly directed that they should not draw an inference adverse to the publisher unless they were sure that it was the only inference to be drawn (see [1965] 2 All ER 954 at 959, 960, [1965] 1 WLR 1038 at 1045).

It is plain on the authorities that it is only where the conditions for making an exemplary award are satisfied, and only when the sum awarded to the plaintiff as compensatory damages is not itself sufficient to punish the defendant, show that tort does not pay and deter others from acting similarly, that an award of exemplary damages should be added to the award of compensatory damages. Since the jury will not know, when making their decision, what costs order will be made, it would seem that no account can be taken of the costs burden which the unsuccessful defendant will have to bear, although this could in itself have a punitive and deterrent effect. It is clear that the means of the defendant are relevant to the assessment of damages. Also relevant are his degree of fault and the amount of any profit he may be shown actually to have made from his unlawful conduct.

The authorities give judges no help in directing juries on the quantum of exemplary damages. Since, however, such damages are analogous to a criminal penalty, and although paid to the plaintiff play no part in compensating him, principle requires that an award of exemplary damages should never exceed the minimum sum necessary to meet the public purpose underlying such damages, that of punishing the defendant, showing that tort does not pay and deterring others. The same result is achieved by the application of art 10. Freedom of speech should not be restricted by awards of exemplary damages save to the extent shown to be strictly necessary for the protection of reputations.

The European Convention on Human Rights

The European Convention on Human Rights is not a free-standing source of law in the United Kingdom. But there is, as already pointed out, no conflict or discrepancy between art 10 and the common law. We regard art 10 as reinforcing and buttressing the conclusions we have reached and set out above. We reach those conclusions independently of the convention, however, and would reach them even if the convention did not exist.

PART 3 OUR CONCLUSIONS ON THE SUMMING UP AND THE AWARDS OF DAMAGES

We can now return to the facts of the case and consider the criticisms of the judge's summing up and of the awards of damages. We shall consider first the summing up on compensatory damages and the award which was made under this heading.

Compensatory damages

We have already set out at the end of Part 1 of the judgment a summary of the alleged misdirections by the judge on the question of compensatory damages. It is therefore necessary to make some further reference to the summing up.

The judge directed the jury that they should have regard to the extent of the publication, to the prominence of the publication and the words used. An article in a national newspaper will reach a much greater readership than one in a local newspaper. It was also necessary to take account of the position of the article in the newspaper. An article on the front page is more prominent than one in the middle of the paper or 'tucked behind the greyhound results'.

The judge told the jury to consider the upset, hurt and distress caused to the plaintiff, and that in addition they should compensate him for the damage they thought had been caused to his character and reputation. He told them to have regard to how well known the plaintiff was.

The judge then reminded the jury of the plaintiff's evidence as to the effect the article had on him. We have already set out this passage in the summing up.

A little later the judge added this warning:

'Against that, do treat matters in proportion, this upset and distress point. It is undoubtedly a form of very real hurt and distress to anyone to have their character defamed. In other words, it is certainly to be hoped that by the successful results of a libel action the matter will have been publicised and put right in the minds of most of the readers who read the original article . . . Bear in mind, therefore, in making any monetary award by compensation that it should be reasonable.'

The judge then reminded the jury that the newspaper had not said that the article was true, though unfortunately he misquoted the letter of 11 March 1993 and gave the jury the impression it was the newspaper rather than the sources who remained convinced of the truth of the article. However, the jury had copies of the letter and would have been able to read it for themselves.

The judge then referred to the apology which had been offered and pointed out that though the apology had not been agreed on behalf of the plaintiff, it was always open to the newspaper to publish its own form of apology at any time. Finally, he directed the jury to bear in mind the value of the money which they were dealing with. He said:

'When you have arrived provisionally at the figure, check again against the value. What would you buy with your figure? What is it worth? Is it worth a compensatory holiday to forget the distress and hurt? If so, is it a weekend in Brighton or a long cruise? Would it purchase a motor car? If so, a fairly old car or a banger or a Rolls Royce or something like that?'

He also invited the jury to consider the income which their award might provide if interest were paid at 10%.

We have considered the criticisms which were made in the grounds of appeal of this part of the summing up. We have come to the conclusion, however, that though there is some force in these criticisms it is impossible to say that they amount to misdirections which caused injustice. As was pointed out in the course of the argument, this was not a long case and the jury had heard all the evidence in the recent past. We consider that the summing up on compensatory damages was sufficient within the existing guidelines to give the jury the help they needed.

We turn therefore to consider the size of the compensatory award, which was GBP75,000.

We take account of the prominence given to this article in the Sunday Mirror and of the distress and hurt which the plaintiff described in his evidence. It is also relevant to note that though an apology was offered it was never published. This was not a trivial libel. The plaintiff had striven hard to overcome his previous disabilities and, because he was a man with an international reputation, probably every reader of the newspaper knew to whom the article referred.

Nevertheless, we have no doubt that the award of GBP75,000 was excessive. Though the article was false, offensive and distressing it did not attack his personal integrity or damage his reputation as an artist. We would substitute the figure of GBP25,000.

We turn therefore to the summing up in relation to exemplary damages and the award of GBP275,000.

Exemplary damages

Under this heading it is necessary to consider a number of issues as follows. (1) Was there sufficient evidence fit to be left to the jury that the newspaper published the article recklessly, not caring whether it was true or false, having regard to its state of mind and that of any relevant agent on 27 December? This involves consideration in particular of whether there was a duty to check, and if so, what was Mr Brenna's position and role vis-a-vis the newspaper, and what if any checks were carried out by Mr Brenna and/or the newspaper. (2) Was there sufficient evidence fit to be left to the jury that the newspaper made the requisite calculation? (3) Was the judge's direction under both these heads adequate? (4) Was the 'if but only if' test satisfied? (5) Was the amount awarded manifestly excessive?

Recklessness

It was apparent from the terms of Mr Brenna's draft article that he himself had not been present at Mr Reid's party, and that the information contained in it was derived from elsewhere, though at that stage only Darla Campbell was mentioned as the source.

Mr Brenna's memorandum followed shortly after on the same day, and confirmed both that there were two sources for the story (Lisa Stanley and Darla Campbell), and that Mr Brenna believed that the former was a reliable source. But it made no suggestion that Mr Brenna had gone behind his two sources or made any other inquiries or cross checks in Los Angeles. Mr Scott himself, as he stated to Mr Presland, regarded the story as 'bizarre'; and it was the newspaper's case, based on the telephone numbers written on Mr Scott's notes, that he had in fact checked or had attempted to check with a number of persons employed professionally by the plaintiff in London, thus suggesting that he himself thought it necessary to check. The one undoubted check which Mr Scott made, when he spoke to Mr Presland, gave him a clear warning that it seemed unlikely that the allegation was true, and advised him to be very careful.

In all these circumstances it seems to us almost beyond argument that it was necessary to check the veracity of the story, for which purpose the obvious reference point was Mr Reid himself or, if he was unavailable, members of his staff, all of whom would of course know the plaintiff, and be able to confirm or deny in answer to the most simple inquiry whether or not the plaintiff had in fact been present at the party, and if so, how he had behaved.

Mr Browne QC's case that, in failing to check, the newspaper was reckless, was based on two alternative propositions: first that the newspaper constituted Mr Brenna as its agent for checking, and that he was reckless in failing to make this very simple inquiry on its behalf; alternatively, if Mr Brenna was not its agent for checking, the newspaper itself was reckless in failing to check the story at the Los Angeles end, or indeed in London, apart from asking Mr Presland, who gave it no confirmation.

We deal first with Mr Brenna. It is common ground that his memorandum was furnished in response to an inquiry from the news editor, though there is no evidence as to the form of that inquiry. Mr Browne submitted that we should infer that it took the form of an instruction to check, and he bases this submission on the footing that Mr Brenna was the obvious person to be entrusted by the newspaper with checking, since he was the author of the article, lived in Los Angeles, was regarded by the newspaper as reliable, and (as his messages on 23 December show) had direct access into the newspaper computer system. Mr Browne also submitted that it is significant that in Mr Brenna's account dated 7 January 1993 he referred to the two women as being willing to testify 'on our behalf' (our emphasis).

In our judgment this evidence is not sufficient to support this inference. The news editor's request could just as well have been for a confirmation as to the reliability of the two sources and no more. The form in which Mr Brenna's account is couched, as Mr Gray rightly pointed out, tends to corroborate this interpretation, since if Mr Brenna had been asked to check it out on a wider basis, he would surely have made some reference to this.

What then is the position of Mr Scott himself and the newspaper executives in London? There is no suggestion that they checked direct with Mr Reid or his staff in Los Angeles. What is suggested by Mr Gray is that they checked with those representatives of the plaintiff whose telephone numbers appear on Mr Scott's hand-written note. Mr Gray invited us to draw the inference simply and solely from the writing down of those numbers that the calls were in fact made. In our judgment no such inference can be drawn in the absence of direct evidence from Mr Scott, since those entries denote no more than that the telephone numbers were in fact obtained by him; furthermore the representatives who gave evidence denied that there had been any such contact, and with no direct evidence to the contrary, it seems almost beyond doubt that the jury must have accepted their evidence. We would only add that even if there had been evidence of inquiries in London, we question whether they would have been any adequate substitute for the inquiry direct to Mr Reid or his staff in Los Angeles.

It follows, as Mr Browne submitted, that there is no evidence whatsoever of any inquiry of any kind being made or even attempted by Mr Scott or the other executives of the newspaper either in this country or in California, apart from that addressed by Mr Scott to Mr Presland, with the result already noted.

Mr Gray's submission is that, even on this basis, there was room for no more than an inference of negligence or even gross negligence, which would fall short of recklessness. It was not, of course, for the judge to decide this point, but rather to rule whether the evidence was capable of supporting a conclusion of recklessness, it being for the jury to decide (as they plainly did) whether the case in recklessness was in fact made out.

It seems to us that the evidence did meet this test for a number of reasons. First, the newspaper itself, for the reasons already noted, regarded such an inquiry as requisite; secondly, the inquiry was extremely simple, involving no more than a telephone call to Mr Reid's home or office in Los Angeles, which the newspaper could easily have instructed Mr Brenna to make; thirdly, there was no urgency about the article, which was not news which would lose all interest if it was deferred a week or more to the next or subsequent issue of the Sunday Mirror; fourthly, it was an obviously damaging story about an extremely well-known public figure. In such circumstances the total failure to check was in our judgment so crass as to be capable of constituting recklessness.

We therefore conclude that there was evidence of recklessness fit to be left to the jury, and that the judge was right so to rule.

Calculation

Perhaps the most helpful authority on the practical application of the requirements under this heading is to found in Riches v News Group Newspapers Ltd. There it was held by the Court of Appeal (Stephenson, Parker LJJ and Park J) that there was evidence fit to be left to the jury on calculation, viz: (i) the article itself with its eye-catching headline, its 'exclusive' caption, and its position on the front page of an edition distributed nation-wide, which was described by Stephenson LJ as the factor on which the plaintiffs 'rested their case'; (ii) the fact that the jury were entitled to disbelieve the evidence of the editor that the motive for publication was public-spirited (see [1985] 2 All ER 845 at 852, 866-867, [1986] QB 256 at 272, 292 per Stephenson LJ and Park J).

The present case is almost a precise counterpart of the Riches case so far as the first heading is concerned. Mr Gray, however, submitted that this, taken by itself, is not enough and that more positive evidence is needed, though he does not of course go so far as to suggest that an actual pen-and-paper calculation must be shown. We would not be prepared to accept this submission, having regard to the great prominence of the presentation here, which (as in Riches) was the factor on which Mr John rested his own case, and which goes well beyond mere reliance on the bare fact that the newspaper is conducted for profit. But the matter does not end there, since in our judgment it was plainly open to the jury to infer from the letter dated 23 August quoted above that the newspaper reckoned that, having regard to the plaintiff's 'self-confessed seventeen years of drug and dietary abuse and his possession of drugs' for which he was 'extremely fortunate not ever to have been prosecuted', the plaintiff was very unlikely to sue. Mr Gray contended that no such inference could be drawn since, as he submitted, the plaintiff is a regular litigator in libel actions, but there was no evidence before the jury that he had any such disposition.

For these reasons we have come to the conclusion that there was sufficient evidence fit to go to the jury on calculation.

The summing up

The major criticisms advanced by Mr Gray are that the summing up was inadequate both in relation to recklessness and in relation to calculation. The question here is not whether the summing up was beyond criticism, but whether it meets the test of adequacy, in the sense that it drew to the jury's attention the relevant issues.

So far as recklessness is concerned, the nub of Mr Gray's criticisms is that a fuller direction was needed along the lines of that given by Widgery J in Manson's case. Here the judge directed the jury not once but several times that the plaintiff had to show on the evidence that the defendants deliberately committed the publication either knowing it was untrue or being reckless and not caring whether it was true or false.

For the reasons already explained, we consider this direction was sufficient, though we feel sure that in future a fuller direction will be given on the lines we have recommended.

So far as calculation is concerned, there is no criticism of the judge's direction as to the need for the plaintiff to prove a calculation, which was closely in line with that of Widgery J in Manson's case. The criticism here is that he failed to give the jury any adequate direction as to the way in which they should approach the question, and that he should have told them that the mere fact that the defendant published the newspaper for profit did not necessarily mean that it carried out any such calculation.

We do not think this criticism is justified. The judge made it crystal clear that the calculation had to be deliberate, and he described it in a manner which seems to us amply sufficient:

'Punitive damages can arise where the defendant deliberately commits the publication either knowing it is untrue or not caring whether it is true or false, and does so because he thinks he will pocket by it; he made the calculation: "Well, it will help the circulation of our newspaper. He may sue. He may not. If he does not so much the better. If he does we will try to settle and get out as quickly as we can. If we cannot do that and it goes to court we still think that the total cost to us, adding everything, damages . . . and the legal costs, all the lot, will still make it worth the gain for us to publish it. So we will go ahead."'

The other less fundamental criticisms are as follows.

(1) That he failed to direct them how they should determine whether or not the case was exceptional. We do not think he had any obligation to do so, and in any event he made it quite clear more than once that, even if the two main criteria were satisfied, the jury still had to consider whether in this case an award of exemplary damages was necessary. He closed his summing up with these words:

'Punitive damages are only rarely awarded. They are generally not encouraged by the court, but they are there for you to award and it is your decision very much whether you think this case is one of those rare cases which does so qualify and, if so, what should be done about it.'

(2) That he should have focused the jury's mind on the facts and matters pleaded in the amended statement of claim. In the upshot this is exactly what the judge did. If, contrary to our view expressed above, Mr Brenna's conduct and state of mind had been relevant, then this would have been a valid criticism, as also would have been the criticism that he failed to give the jury any direction on vicarious liability.

(3) That he failed to give the jury any adequate direction in this context as to the relevant facts, in particular those relied upon by the newspaper that the story was plausible, that Mr Brenna was regarded as a reliable source, and that the two informants did actually attend the party. All these matters were fully canvassed in his summary of the facts to the jury, and we do not think it was necessary for him to elaborate them again in the specific context of exemplary damages.

(4) That the judge misdirected the jury in telling them that the newspaper was a very large company with great means. Here it is not disputed that this could be a relevant consideration, but it is said that there was no evidence of its means. The precise direction on this point was as follows:

'In a case of punishment, of punitive damages, you can bear in mind the means of the defendant because punishment clearly is affected by the means of the party paying. If you make an award which might badly hurt the ordinary man in the street it might be laughable to a large company with very great means. As the purpose of your award of damages is to punish for bad conduct and deter others, you should properly have in mind the means of the party who you are punishing. But having said that, I add again, do not because you may think the Mirror Group are very wealthy, go over the top on that account. Bear in mind always that you are to make an award which is reasonable.'

We do not think that this direction can be faulted in the case of a national newspaper with a circulation running into millions, whether or not, as Mr Gray submitted, this operation may not have been profitable during the era following Mr Robert Maxwell's death, of which there was no evidence.

'If but only if'

It is noteworthy that there is no criticism of the judge's direction on this point, which was clear and specific.

We must nonetheless decide ourselves whether that test is satisfied, bearing in mind the quantum of our award on compensatory damages.

The question is whether the sum which we have awarded for compensatory damages is sufficient to punish the newspaper and deter it and others. In our judgment it is not, since we do not think that this sum adequately reflects the gravity of the newspaper's conduct, or that it would deter it or other national newspapers of a similar character from such conduct in future. An award of exemplary damages is therefore, in our judgment, necessary to meet these two
requirements.

The amount awarded

The jury awarded exemplary damages of GBP275,000, making a grand total of GBP350,000. Mr Browne supports that figure as reasonable, but in our judgment Mr Gray is right in his submission that this sum is manifestly excessive, and goes well beyond the minimum sum needed to meet the two relevant requirements. We think that those requirements will be fully met by an award of GBP50,000 exemplary damages, making a grand total of damages under both headings of GBP75,000, which will ensure that justice is done to both sides, and will also fully secure the public interest involved.