Cairns v Modi; KC v MGN Ltd
Reference:  EWCA Civ 1382
Court: Court of Appeal (Civil Division)
Judge: The Lord Chief Justice; Lord Neuberger; Eady J
Date of judgment: 31 Oct 2012
Summary: Defamation - Appeal - Damages
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Desmond Browne QC - Leading Counsel (Appellant)
Yuli Takatsuki (Appellant)
Andrew Caldecott QC - Leading Counsel (Claimant)
Instructing Solicitors: Collyer Bristow for Mr Cairns; Fladgate LLP for Mr Modi; YVA Solicitors for KC; MGN Legal Department for MGN Ltd
These conjoined appeals concerned the amount of damages awarded by Bean J in libel proceedings.
Cairns v Modi concerned the publication of a tweet which made allegations of match-fixing against a world famous cricketer. The Judge had granted an award of £90,000 following a full trial on justification. The Judge had proceeded by consent to accept the figure of 65 as the approximate number of publishees.
KC v MGN involved a false accusation in a newspaper that the real father of “Baby P”, a man of good character, had been convicted in the 1970s of raping a 14 year-old girl. However, KC was (and remains) anonymous due to a reporting restriction made in the Family Division. The articles did not name or identify KC but referred to Baby P’s ‘real father’. The Judge awarded £75,000 under the offer of amends regime, with a starting point of £150,000. The level of discount applied (50%) was not appealed.
Whether the damages awards were disproportionate/excessive.
Appeal dismissed in respect of Cairns v Modi:
- The Judge had been right to take into account the ‘grapevine effect’ of allegations on the internet.
- There is no general principle that damages should be less following a trial by judge alone, than after jury verdict, on the grounds that the judge will provide a reasoned judgment which may further vindicate the claimant. It is a fact-specific question but in this case, it is unlikely that cricket fans will have read the judgment with close attention and would more likely have been interested in the overall sum awarded.
- The Judge was entitled to increase the damages by £15,000 (i.e. 20%) to take account of the conduct of the trial by previous counsel (presumably on instruction by the defendant).
- The Judge was not obliged to give a more detailed breakdown of the award. A global figure was sufficient. There are three elements to damages in defamation cases – hurt feelings, injury to reputation and the need for vindication. The combination of circumstances and the different features which fall for consideration vary enormously and do not lend themselves to strict categorisation.
- The award was proportionate to the seriousness of the allegation and its direct impact on Mr Cairns.
Appeal allowed in respect of KC v MGN:
- Although the allegation that a man has been convicted of rape of a child is extremely serious, this case involved two distinct features: (i) that KC remained anonymous throughout the currency of the libel; and (ii) the falsity of the allegation was recognised and corrected at a very early stage.
- The reasoning on which the assessment of compensation was based attached too much importance to the large circulation and readership figures for The People. On this basis, the very limited nature and extent of publication as it might have impacted on KC’s reputation was not given sufficient focus.
- The Judge has a wide parameter for damages in libel cases. However, given the limited number of those who might have read or heard of the false allegation and appreciated that it did refer to him, and the relative speed with which it was regretted and withdrawn, the starting point was too high.
- A proportionate starting point would have been £100,000. Therefore, applying the 50% discount, damages should be reduced to £50,000.
This judgment is interesting for the clarification it provides on a number of points relating to libel damages:
Firstly, that there is no general principle that damages should be less following trial by judge alone than after verdict by jury.
Secondly, that a judge need not give a detailed breakdown of the elements that make up a damages award and can reach a global figure taking all aspects of the case into consideration.
Thirdly, where there are issues relating to identification of the claimant, the court should assess the actual number of readers who would have been able to identify the claimant and should not simply take the overall circulation figure as the scope of publication.
Finally, the Court of Appeal took into account the speed with which the Defendant made the offer of amends and apology in determining the starting point for damages, and not just at the subsequent stage of applying the % discount.