Law of Defamation

Wednesday, January 31, 2007


Remedies for Defamation (Chapter 4)


The purpose of damages in tort law is to compensate the victim and seek to place him in the position he would have been in had the tort not been committed against him.

In defamation proceedings the jury determines the amount of damages that the claimant shall receive. As discussed in the introduction to this workbook awards are notoriously high, although evidence suggests they may be declining. In his evidence to the Calcutt Committee on Privacy and Related Matters (1991), Mr.Louis Blom-Cooper QC the then Chairman of the Press Council felt that awards were high due to the attitude of juries, he reported, "they reflect the juries' disapproval of the improper disclosure by newspapers of intimate details of an individual's private life".

The damages that may be awarded in defamation proceedings may be divided into two broad categories, compensatory damages and exemplary damages.

Compensatory Damages

Compensatory damages seek as far as is possible to compensate or 'make-up' for the damages suffered by the claimant's reputation as a result of the defamatory statement.

Within this category also falls damages to compensate the claimant for the distress and suffering which has occurred as a result of the defamation. Where the claimant's distress and suffering have been worsened by the defendant's subsequent conduct the award may be increased to include 'aggravated damages', an example may be the defendant's continued persistence of a plea of justification.

Compensatory damages may also include a 'specific' element to compensate for any particular, identifiable pecuniary loss.

Exemplary Damages

These were succinctly described by the Law Commission (Report No. 247) as damages which "aim to punish the wrongdoer". The existence of a punitive element within the civil law is controversial. In 1995 the Law Commission issued a consultation paper on the future of exemplary damages, 28% of respondents were in favour of their abolition. The Law Commission ultimately favoured retention.

There is guidance in statute and case-law as to the directions to be given to a jury to determine the level of damages, the powers of appellate courts and the general degree of damages, in relation to both compensatory and exemplary damages. These matters are discussed below.

The traditional attitude of the Court of Appeal to awards of damages which were appealed on the grounds that they were excessive was not to interfere with the jury's decision. In Blackshaw v Lord [1983] QB 1 Fox LJ stated that the Court of Appeal "is not entitled to seize the matter from the jury and set aside the award merely because our opinion as to the proper amount of damages differs from that of a jury". As such this was the position when the Court of Appeal heard Sutcliffe v Pressdram [1991]. In that case a concession was made as it was held that an excessive award may be set aside if it is unreasonable in the sense that no reasonable jury could have awarded such a sum in the absence of a misdirection, accordingly any such award would be re-assessed by a new jury. In that case an award of £600,000 was set aside and a new trial ordered.

Under section 8 Courts and Legal Services Act, 1990 the Court of Appeal's powers in relation to cases appealed on the grounds of excessive damages were extended to include the power to 'substitute for the sum awarded by the jury such sum as appears to the court to be proper'.

The Court of Appeal used this power in Rantzen v Mirror Group Newspapers Ltd [1994] where an award of £250,000 was considered excessive and an award of £110,000 was substituted.. The Court of Appeal considered how the jury should be directed on assessing damages and made several clear statements concerning:

Matters for consideration by the jury

Rantzen - matters

"It is to be hoped that in the course of time a series of decisions of the Court of Appeal will establish some standard as to what are, in the terms of section 8 of the Act of 1990 '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 [claimant] had suffered and is a sum which is necessary to award him to provide adequate compensation and re-establish his reputation".

References to awards in previous cases

"We are not persuaded that at the present time it would be right to allow references to be made to awards by juries in previous cases. Until very recently it had not been the practice to give juries other than minimal guidance as to how they should approach their task of awarding damages and in these circumstances previous awards cannot be regarded as establishing a norm or standard to which reference can be made in the future. Awards made by the Court of Appeal in its exercise of its powers under section 8 of the Act of 1990 and Ord. 58, r, 11(4) stand on a different footing. It seems to us that it must have been the intention of the framers of the Act of 1990 that over a period of time the awards made by the Court of Appeal would provide a corpus to which reference could be made in subsequent cases".

References to awards in personal injury cases

"We see the force of the criticism of the present practice whereby a plaintiff [claimant] 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...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…We therefore feel bound to reject the proposal that the jury should be referred to awards made in actions involving serious personal injuries."

The Court of Appeal addressed these issues again in John v MGN Ltd [1996] and made clear statements on several matters, these represent current law:

Matters for consideration by the jury in assessing compensatory damages

"The 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 significant factor is the gravity of the libel; the more closely it touches the plaintiff's [claimant'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".

Matters for consideration by the jury in assessing exemplary damages

In summary the court held that in the case of an award for exemplary damages the jury must be certain that the publisher lacked a belief in the truth of the defamatory statement and failed to take any steps to address suspicion as to their truthfulness, and that the compensatory award was insufficient to contain a punitive element and to act as a deterrent to others. Thus in the case itself an exemplary award was considered necessary where a national newspaper had failed to ascertain whether or not the claimant musician had in fact attended a party at which the paper reported he was observed behaving in a such a way that he may be medically considered as suffering from a form of the eating disorder bulimia.

References to awards in previous cases

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

References to awards in personal injury cases

"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 [claimant] should recover damages for injury to reputation greater, perhaps a by a significant factor, than if that same plaintiff [claimant]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".


"The modest but important changes in 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 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 the public opinion".


Where a claimant has brought successful defamation proceedings against a defendant he may easily obtain an injunction to prevent any further publication of the defamatory statement.

However, a claimant may also wish to seek to obtain an injunction against an alleged defamer before proceedings have begun. In Bonnard v Perryman (1891) 2 Ch 269 the court held that whilst it had jurisdiction to prevent or restrain publication by the use of an interloctury injunction this jurisdiction was strictly discretionary and only to be used in cases where, if a jury were to find the words complained of not defamatory, that verdict would be set aside as unreasonable and where, although the defendant swears he has a plea of justification, the Court can be totally sure that it would fail. An injunction was not granted on the facts of the case and the court added that it would only be granted in the most 'exceptional cases', the court would not interfere and wished to leave the relevant matters to the jury.

Lord Denning explained the rationale of this rule in Fraser v Evans [1969] 1 QB 349 and applied and expanded it a little in Harakas and others v Baltic Merchantile and Shipping Exchange Ltd and another [1982] 1 WLR 958.

There is an exception to the rule in Bonnard v Perryman provided by A-G v News Group Newspapers Ltd [1987] QB 1 whereby an injunction shall be granted if the conditions of the Contempt of Court Act, 1981 are fulfilled. In that case an injunction was obtained against the News of the World to prevent it from publishing several allegations. The claimant had already issued defamation proceedings against the News of the World for allegations published in earlier editions. The statements to be published had been published by the Mail on Sunday, against whom the claimant also had an injunction, although the News of the World claimed that its information was from independent investigations.

In cases where a libel is threatened by the defendant the claimant may obtain a quia timet injunction following the decision in British Data Management plc v Boxer Commercial Removal plc and another [1996] 3 All ER 707. The claimant must be able to show to the court with certainty the gist of the threatened libel, a verbatim record is not necessary.

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