Baigent v British Broadcasting Corporation
| Jurisdiction | Scotland |
| Judgment Date | 25 October 2000 |
| Docket Number | No 15 |
| Date | 25 October 2000 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
T G Coutts, QC
DefamationDamagesWhether amount of damages awarded by first instance judge excessive
The first to fourth pursuers were proprietors of a nursing home, and the fifth pursuer was employed in that family business. They brought actions of defamation against the British Broadcasting Corporation and two ex-employees arising out of the broadcasting of a television programme. The programme was concerned with the way the home was run and made serious allegations, mostly through the two ex-employees and was severely critical in specific detail as to the way the home was run. After proof, the Temporary Judge (Coutts, QC) rejected the defence ofveritas, found various innuendos established, and awarded damages. In particular, he awarded damages of 60,000 to the first pursuer, 50,000 to the second pursuer and 20,000 to each of the third, fourth and fifth pursuers. The defenders reclaimed on the issue of damages. The defenders argued (1) the damages were grossly excessive set against the level of damages awarded by judges in Scotland; (2) the Temporary Judge made awards to pursuers who were not mentioned in the programme. The respondents argued that the awards were consistent with some previous awards, and that the Temporary Judge's awards did not amount to an affront to justice nor were contrary to common sense, and should be upheld.
Held (1) that the assessment of the damages to be awarded to each pursuer must reflect the scurrilous if not outrageous nature of the untrue allegations (p 288E); (2) that the Temporary Judge's assessment reflected the effect on each pursuer of the slander (p 288F); (3) that as the court was being asked to review the decision of a judge who had given reasons for his decision, the principles to be applied by the court with regard to reviewing of the awards of damages by juries did not have direct application but that the judges of the appeal court must have some idea in their own minds as to what assessment of damages they would have made upon the Lord Ordinary's findings in fact (p 288FH); (4) that in cases of defamation, comparison with awards made in cases of personal injuries or in other cases of defamation were of very limited value (p 288I); (5) that the present awards did not exceed the pattern of previous cases (p 289B); and (6) that the figures awarded were sustainable and supportable by the appeal court, and the only doubt the appeal court had was whether they were high enough (p 290B); (7) that all the pursuers being referred to at least by indirect reference in the innuendos and being involved as a family in the caring operation and slandered, they were entitled to a substantial award (p 290DF) and reclaiming motion refused.
Observed that in looking at the field of damages generally in the context of personal injuries and defamation, it may well be that the levels now being fixed by judges in respect of personal injury are lower than they should be in the modern context (p 289D).
Margaret Elizabeth Baigent and Others brought actions of defamation against the British Broadcasting Corporation and against Sandra McCulloch and Catherine O'Hare in the Court of Session. After proof, the Temporary Judge (Coutts, QC) found for the pursuers and awarded them damages. The defenders reclaimed.
Cases referred to:
Anderson v Palombo 1986 SLT 46
Butler v Adam Lynn LimitedSC 1967 SC 137; 1965 SLT 197
Fraser v MirzaSCSC 1992 SC 150 1993 SC (HL) 27; 1993 SLT 527 reversing 1992 SLT 740
Gecas v Scottish Television plcUNK, Outer House, unreported, 17 July 1992
Gilbert v YorstonUNK 1997 SLT 879 1996 SCLR 1122
Girvan v Inverness Farmers DairySC 1998 SC (HL) 1 (No 2) 1998 SLT 21; 98 SCLR 72
McCluskie v Summers 1988 SLT 55
Muirhead v George Outram & Co Ltd 1983 SLT 201
Purdie v William Allan & SonsSC 1949 SC 477 1950 SLT 29
Smith v Graham 1981 SLT (Notes) 19
Winter v News Scotland Limited 1991 SLT 828
Wray v Associated Newspapers and Another 2000 SLT 869
The cause called before an Extra Division, comprising Lord Prosser, Lord Milligan and Lord Johnston for a hearing on the summar roll.
At advising, on 25 October 2000, the opinion of the court was delivered by Lord Johnston.
Opinion of the Court[1] There are three actions of defamation at the instance of five members of a single family against the British Broadcasting Corporation and against Sandra McCulloch and Catherine O'Hare, two ex-employees of a Nursing Home known as Orchard House, situated at Crossford near Carluke arising out of the broadcasting of a programme under the title of Frontline Scotland on national television on 9 March 1995.
[2] The first to fourth pursuers are, as partners, proprietors of a Nursing Home. The fifth pursuer was employed in the family business at the material time.
[3] The programme was concerned with the way the home was run and made a series of allegations, mostly through the medium of the two ex-employees and was severely critical in specific detail as to the way the home was run. After hearing a proof Temporary Judge Coutts, QC rejected the defence of veritas put forward by the defenders, found the various innuendoes that were pleaded by the pursuers established, and awarded them damages.
[4] Damages against the defenders in the first action, the BBC, were awarded by the judge of 60,000 to the first pursuer, 50,000 to the second pursuer and 20,000 to each of the third, fourth and fifth pursuers. In addition he awarded damages against each of the defenders in the other actions to the first and second pursuers of 5,000 and 3,000 respectively. The defenders in all three actions will be hereafter referred to as the reclaimers, and the arguments presented will be treated as common to all three where applicable.
[5] Originally the defenders and reclaimers reclaimed the Lord Ordinary's entire interlocutor, lodging lengthy grounds of appeal on the merits. However, shortly before the hearing before us the appeals were abandoned on the merits and the matter proceeded before us purely on the issue of damages. However, it has to be noted that no challenge was made in argument to the awards of 5,000 and 3,000, which awards will therefore stand.
[6] The findings of the Temporary Judge in relation to quantum of damage and his reasons for quantification are as follows:
In view of the fact that Mr Taylor could not support the keynote allegation of the broadcast ie that Mr McAdam was kept in a restricted chair for 24 hours a day, nor the lesser version promulgated by Mrs McCulloch that that had occurred on some occasions, it is apparent that the defence, in so far as directed towards that proposition which was persisted in, could not be justified. That was the integral and, in the view of the court, the most serious allegation in the matter. Another matter was the failed attempt to justify the assertion made in the programme that the residents at the home were denied even the basics. The suggestion that the pursuers neglected their residents because of inadequate staffing which was persisted in, was also unjustified, having regard to the fact that staffing levels are set and approved by a supervisory body. The suggestion of a perpetually defective hoist, again persisted in the teeth of the supervisory duties of the Health Board and its requirements about equipment, were all unjustified. I find that there was no justification for the defenders' conduct at the proof in attempting to establish, as a matter of fact independently of the programme, that the pursuers operated a harsh and uncaring regime. They specifically averred that. Such averment and persistence in it at proof plainly must have caused additional and aggravated hurt upset and distress to each and every one of the pursuers and I accept that it is a legitimate consideration for the court. Each of the pursuers gave graphic evidence about the effect of the programme upon them and upon those...
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