On 12 August 2020, HHJ Lewis sitting as a judge of the High Court handed down judgment in Gilham v MGN Ltd & Anor [2020] EWHC 2217 (QB). This was a Part 8 claim for the determination of compensation following the acceptance of a qualified offer of amends, which was issued pursuant to section 3(5) of the Defamation Act 1996. Mr Gilham was awarded £49,000 by way of compensation.

Background

The claim concerned four articles published on 15 to 20 December 2018 by the Sunday Mirror, mirror.co.uk and a local online news website, Kent Live. The articles reported on a decision of the Teaching Regulation Authority (“TRA”) which followed disciplinary proceedings brought against the Claimant. Those disciplinary proceedings followed an incident between the Claimant and a pupil on 3 February 2017, which resulted in the Claimant’s dismissal from the school.

The TRA decision found the Claimant not guilty of unacceptable professional conduct and/or conduct that may bring the profession into disrepute. It was notified to the Claimant by a letter dated 11 December 2018, in which the TRA confirmed that no further action would be taken against him and that his ability to teach remained unaffected.

Following the publication of the articles complained of, the Claimant’s wife contacted the publishers. The Mirror took the online version of the article down immediately, and published an apology online and in the hard copy edition of the Sunday Mirror, on 23 December 2018, which purported to be in full and final settlement of the Claimant’s complaint against the Mirror.

Despite accepting that they had made a “serious error”, Kent Live did not apologise and instead decided to amend their article. As HHJ Lewis noted, “[f]or reasons that are difficult to understand, the second defendant added further defamatory material, to the effect that the claimant might be banned from the classroom. This was simply untrue, as the second defendant would have known from reading the TRA’s letter.” The article was amended again on 21 December 2018, and that last version (which was not within the scope of the Part 8 claim) was ultimately taken down on 22 December 2018.

Following pre-action correspondence passing between the parties, the Defendants made a qualified offer of amends (“QOOA”) on 13 May 2019, which was accepted by the Claimant shortly thereafter. The agreed meaning was that: “[the claimant] was, and had been found to be, guilty of unacceptable professional conduct by the Teaching Regulation Agency and would be the subject of punishment by them having used excessive and unnecessary force when he dragged a 7 year old boy, Robbie Rayner, by the scruff of his neck across his classroom which resulted in [the claimant’s] dismissal with the incidents causing the child to struggle with lessons and become so unsettled that he stopped wanting to go to school.”

However, the parties were unable to agree on the wording of the apologies to be published and the amount of compensation to be paid pursuant to the QOOA. The parties’ failure to agree on the wording of an apology led to the Defendants to publish unilateral apologies in June 2019. In doing so, the Defendants ignored the Claimant’s comments on those apologies, which he considered to be inadequate. The parties’ failure to agree on the amounts to be paid by way of compensation led the Claimant to issue an application for the determination of compensation (which was issued by way of Part 8 proceedings as the QOOA had been made and accepted prior to Part 7 proceedings being issued).

Judgment

In assessing the level of compensation, HHJ Lewis referred to and built on the two-stage process applicable in offer of amends cases. He set out the stages laid down by Eady J in Turner v News Group Newspapers Ltd. & Anor [2005] EWHC 892 (QB) at [45]:

“The first stage is to identify the figure I should award at the conclusion of a hypothetical trial in which the defendant had done nothing to aggravate the hurt to the claimant’s feelings (e.g. by pleading justification or by insulting cross-examination) and nothing to mitigate (e.g. by the publication of an apology). At the second stage, I must consider to what extent, if at all, that figure should be discounted to give effect to any mitigating factors of which this Defendant is entitled to take advantage.”

After considering the impact of the articles on the Claimant (at [45-49]), the extent of publication in a respected national newspapers and a mainstream local news website (at [50-51]), the degree of overlap between both publications (at [53-54]), mitigating factors such as the December 2018 apologies (at [54-56]) and a number of relevant comparators (at [57-59]), HHJ Lewis arrived at a figure of £85,000, which he discounted by 15% to account for the initial apologies, bringing the amount of compensation to the sum of £72,000.

The Defendants relied on various Burstein particulars – these being particulars of mitigation pursuant to the principle established in Burstein v Times Newspapers [2001] 1 WLR 579. HHJ Lewis considered these to be “clearly relevant” but as not justifying more than a 15% to the stage one figure.

In the second stage of the assessment, the judge took into account the promptness of the QOOA, its fullness, and the correspondence which showed the Defendants’ efforts to resolve this matter. However, he weighed this against their decision to publish unilateral apologies which the Claimant had informed them to be inadequate and which HHJ Lewis described as “grudging, unsuitable and insufficient in terms of providing adequate vindication, restoring the claimant’s reputation and reducing the distress and upset caused to him” (at [80]). In the light of this, he applied a further discount of approximately 20%, arriving at a global figure of £49,000. In order to avoid a distortion in the amount to be awarded, he also stood back and checked that the award was “proportionate and appropriate, taking into account the evidence and the respective Article 8 and Article 10 rights of the parties”. Having done this, he reached the conclusion that the sum was “proportionate and appropriate” and “consistent with the wider comparative framework” (at [83]).

Interestingly, this is a figure which is comparable to the general damages awarded to Elton John by the Court in the flagship case of John v MGN Ltd [1995] EWCA Civ 23, when taking inflation into account.

Comment

This judgment, which makes a straightforward application of the assessment of compensation pursuant to section 3(5) of the Defamation Act 1996, deals with a number of interesting points:

  1. As noted by HHJ Lewis, this was an unusual case in that one of the Defendants had published prompt apologies following publication of the articles. Further (unilateral) apologies were published six months later pursuant to the QOOA; and as the judge remarked, “[i]t is rare for two apologies to be published following a libel” (at [30]). One of the points to be decided by the judge involved determining whether the December 2018 apologies should be taken into account in the first or the second stage of the assessment (as contended, respectively, by the Claimant and the Defendants). HHJ Lewis considered the December 2018 were best taken into account at the first stage, in the light of the chronology in this matter: he considered that matters predating the QOOA would have to be taken into account at stage one, and matters postdating it would have to be taken into account at stage two. This approach is in line with the approach taken in Turner v News Group Newspapers Ltd. & Anor [2005] EWHC 892 (QB) and Barron & Others v Collins [2017] EWHC 162 (QB) in respect of mitigation and aggravation respectively. It is worth noting that HHJ Lewis made a further reduction in the light of some of the Burstein particulars relied on by the Defendants, making this (to the author’s knowledge) the only case where a double discount was applied.
  2. There was a discussion as to whether, there being two defendants, the judge should make one or two awards of compensation. HHJ Lewis noted the Court’s discretion to award a single award in the case or two or more libels, as stated in Lisle-Mainwaring v Associated Newspapers [2017] EWHC 543 (QB). It was also relevant that the second defendant was the parent of the first defendant ([4]). The exercise of the discretion involves considerations regarding the nature of the claim against each defendant (e.g. as relates to their readership and the individual circumstances of the case such as, here, the publication of the December 2018 apologies by the First Defendant and the addition of further aggravating libels by the Second Defendant), and any difficulties associated with enforcement. In this case, the Defendants accepted to be jointly and severally liable, and the judge considered that the articles were sufficiently similar, and that the conduct of the case as a single matter by the legal department of Reach would make it artificial to separate out the awards, and would create a risk of double counting (at [44]). He therefore did not split the award, as there was no “compelling” reason that made it necessary of desirable to do so.
  3. Lastly, in determining the discount to be made at the second stage of the assessment, HHJ Lewis remarked on the inadequacy of the Defendants’ unilateral apologies in June 2019. This was a straightforward application of section 2(5) of the Defamation Act 1996, but a useful reminder of its contents, which provide that the court “shall take account of any steps taken in fulfilment of the offer and (so far as not agreed between the parties) of the suitability of the correction, the sufficiency of the apology and whether the manner of their publication was reasonable in the circumstances”.

As the judge remarked, the Defendants were entitled to rely on various, clearly relevant Burstein particulars, but nonetheless

“[t]he publications turned a momentary lapse of judgment considered minor by the regulator into an extremely serious, career-threatening incident that resulted in a child being caused emotional and educational harm” ([71])

and his decision to assess compensation in the overall sum of £49,000 clearly follows from that conclusion.

The Defendants have indicated their intention to apply for permission to appeal against the award of compensation.

Mathilde Groppo is an Associate at Carter-Ruck