The Media and Communications List of the High Court has helpfully restated the factors it takes into account in calculating and discounting damages awards in defamation claims. Such a calculation resulted in an award of £49,000 to a teacher defamed in online and print media. Partner Emily Cox and Paralegal Palomi Kotecha from our Media Disputes team, consider those factors and how damages awards in defamation claims are not the path to riches some may imagine.
In Gilham v MGN Ltd and Reach Plc, the Media and Communications List of the High Court considered a defamation claim brought by Mr Gilham, a teacher of 40 years, regarding four articles published in the Sunday Mirror newspaper and on the Mirror and Kent Live websites. The articles covered the dismissal of Mr Gilham from his teaching job due to the alleged used of excessive force in lifting a pupil by the collar to move him to the door so as to remove his muddy feet from the classroom. The pupil’s father was outside the door at the time and witnessed the event.
While Mr Gilham was dismissed from his teaching post due to the incident, the Teaching Regulation Agency (TRA) did not consider that Mr Gilham was guilty of professional misconduct and held that his “ability to teach remains unaffected”. The articles nonetheless stated that Mr Gilham had been found guilty of professional misconduct. Mr Gilham objected to these statements as defamatory. The first defendant apologised quickly for the error, while the second defendant did not and instead amended the article to include a further defamatory statement that Mr Gilham might be banned from teaching due to the incident.
The defendants made several qualified offers of amends, that is an open offer to pay costs and damages under section 3(5) of the Defamation Act 1996, which the claimant accepted. However, a fundamental point of disagreement was the extent to which a published apology should refer to the incident. The defendants said that they would consider reporting what was said in a letter from the TRA confirming that no further action would be taken, but they needed to put this into context and not mislead readers about the TRA’s findings, namely that the claimant’s actions were inappropriate and the force used was unreasonable. In the event, the apology was published quickly and in terms with which the claimant was unhappy.
Single award of damages
The court was asked to determine the level of damages to be awarded pursuant to the offer of amends. In an action in respect of two or more libels, the court has discretion to compensate the claimant by a single award of damages. As the defamatory articles in this case were written by the same person, were materially the same, and the negotiations and offers had been for all the publications, Mr Justice Lewis considered that it would be artificial to separate them and would introduce a real risk of double recovery. He therefore made a single award.
Factors for quantifying damages
As to quantifying the award, the judge confirmed that for defamation claims there is a two-stage approach. First, the court will consider the level of damages that would have been awarded at the conclusion of a defamation trial. Secondly, the court will consider any appropriate discounts to the stage 1 award to reflect any attempts at mitigation or amends made by the defendant.
Mr Justice Lewis articulated key factors that will impact on the stage 1 assessment relating to the seriousness of the libel, including:
- Evidence showing that the claimant suffered negative treatment or “shunning” as a result of the defamatory publication;
- The impact on the claimant’s reputation, as it was at the time of publication;
- The level of credibility attributed to the publication making the defamatory statement;
- Whether the statement was published to family or the general public;
- The potential for the defamatory content to circulate via social media; and
- Damages may be aggravated if the defendant acts maliciously.
In this case, the judge considered it significant that the allegations were published locally and would have been highly damaging to the claimant’s professional reputation, not just as a teacher but also in the community as a children’s rugby coach. He also took into account the claimant’s statements as to the hurt and humiliation he had suffered in his local community separately from his professional reputation.
The judge went on to consider mitigating factors that would affect the award of damages including whether an offer of amends was made promptly, whether an apology was offered promptly, whether a defendant had acted inconsistently with any offer made, and whether a defendant’s conduct had increased the overall hurt to the claimant’s feelings.
Mr Justice Lewis noted that the original apology by the first defendant was published quickly and in good faith and, while it would have been better for the claimant to have more time to consider the wording, he was mindful of the publication’s print deadline. In terms of the second apology, the judge considered that it was “grudging, unsuitable and insufficient in terms of providing adequate vindication, restoring the claimant’s reputation and reducing the distress and upset caused to him”.
While the stage 1 award was for £85,000, the judge made a stage 2 deduction for the timely apology made by the first defendant, and took further background information into account before discounting to £61,200, and finally to £49,000.
Media articles about large and flashy cash awards in phone hacking claims (for misuse of private information) may give the impression that it is easy to get large damages in all media law cases. However, Mr Justice Lewis confirmed that “the notional ‘ceiling’” on libel awards is currently about £300,000” (per Mr Justice Warby in 2017 in Barron v Collins), though there has not been anything approaching that level since the Defamation Act 2013 came into force.
This judgment shows that despite a claimant establishing that defamatory content published about him damaged his reputation in his local community, damages awards remain modest in defamation claims. Obtaining high-level awards of damages is difficult in practice, particularly when publications have acted speedily to apologise and otherwise mitigate the harm caused by publication.
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