Full case report

(1) Khaled Undre (2) Down to Earth (London) Ltd v London Borough of Harrow (No.2)

Reference [2016] EWHC 2761 (QB)
Court High Court, Queen's Bench Division

Judge Sir David Eady

Date of Judgment 3 Nov 2016


Summary

Defamation – Offer of Amends – Serious Harm – Burstein Mitigation – Damages


Facts

The First Claimant was the director of the Second Claimant, which operated an ethical vegetarian restaurant. He was convicted of offences involving cruelty to cows after a prosecution brought by the Defendant. The Defendant issued a news release in which it incorrectly stated that the First Claimant had been convicted of offences which led to the death of cows. The Claimants sued for libel. The Second Claimant’s claim was dismissed by Warby J in April 2016. An offer of amends was made to the First Claimant.


Issue

The appropriate level of damages.


Held

The First Claimant should be awarded £9,000 in damages. The Defendant had conceded that the news release had caused serious harm. The words complained lf had been widely republished. However it was difficult to separate the damage caused by the sentence complained of from damage caused by other matters in the news release of which no complaint was made, and from damage caused by other publicity surrounding the prosecution of the Claimant. Burstein mitigation, in the form of the conviction of the Claimant, was significant. The appropriate starting point was £12,000, subject  to a 25% discount for the making of an offer of amends.


Comment

The case demonstrates the inflationary effect on damages of s.1 of the Defamation Act 2016. It is difficult to see how any more than nominal damages would have been awarded had the Defendant not had to concede that the words complained of had caused serious harm.

The Defendant made an offer to pay £10,000 damages in March 2016. The First Claimant was therefore ordered to pay the Defendant’s costs from March 2016, including the costs of the trial. The First Claimant was also made to pay the Second Claimant’s costs, on the basis that he had personally controlled the Second Claimant’s claim in part for his own financial benefit: Dymocks Franchise Systems (NSW) Pty Ltd v Todd and Others (No.2) [2005] 1 Costs LR 52 followed.


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Instructing Solicitors

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