Kiam v MGN Ltd

Reference: [2002] EWCA Civ 43; [2003] QB 281; [2002] 2 All ER 219; [2002] 3 WLR 1036

Court: Court of Appeal

Judge: Simon Brown, Waller & Sedley LJJ

Date of judgment: 28 Jan 2002

Summary: Defamation- Libel - Damages - Jury trial - Appeal on quantum - whether award of £105,000 was excessive - procedure to determine size of bracket - referrring jury to comparable awards

Appearances: Desmond Browne QC - Leading Counsel (Claimant)  Adrienne Page QC - Leading Counsel (Defendant) 

Instructing Solicitors: Peter Carter Ruck and partners for the Claimant; Olswang for the Defendant

Facts

The Claimant was a well known entrepreneur who sued over an article he said meant that (1) he lost his entrepreneurial ability and was only fit for retirement; (2) he was prepared to give up on the company he ran and close it down with devastating consequences for staff, shareholders and customers and (3) the company’s imminent collapse was attributable to his own professional failures. The article was untrue. No apology was offered until 5 days before trial and the only defence was that the article was not defamatory. The Defendant also suggested to the jury that the Claimant was impossible to satisfy and no amount of money would placate him. At trial after the judge withdrew the issue of exemplary damages at the close of the evidence the Judge suggested to the jury an appropriate bracket for an award of damages of between £40,000 and £75-80,000. The jury awarded the £105,000 in compensatory and aggravated damages. The Defendant appealed the sum awarded.

Issue

Whether the jury’s award of damages was excessive

Held

Dismissing the appeal (Sedley LJ dissenting), the Court could only interfere with a jury’s award if it was excessive. The question the Court needed to ask was whether a reasonable jury could have thought the award was necessary to compensate the C and to re-establish his reputation. The judge’s bracket was not sacrosanct but it was not irrelevant either. In the present case the bracket was entirely reasonable but the jury’s award, although higher, could not be condemned as unreasonable since it was not out of all proportion to what could sensibly have been thought appropriate.

Comment

Guidance was given in this case on the need for counsel to have an opportunity, before the Judge summed up, to argue the size of the bracket to be suggested to the jury. Moreover, if there was a close comparable in point, consideration should be given to an agreed note. Otherwise, counsel should not generally refer the jury to comparables.

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