John v MGN Ltd

SIR THOMAS BINGHAM MR.,LORD JUSTICE NEILL and

This judgment, which is the judgment of the Court, is divided into three Parts.

Part 1. The facts and the history of the action.

Part 2. The principles of law relating to damages in defamation.

Part 3. Our conclusions on the summing-up and the awards of damages.

Part 1. The facts and the history of the action.

Neither the appellant MGN Ltd (the newspaper) nor the respondent Mr Elton John (the plaintiff) needs any introduction in this appeal which arises from a libel action brought by the latter in respect of an article published in the Sunday Mirror on 27th December 1992. At the conclusion of the trial before Drake J. and a jury, the jury awarded the plaintiff £350,000 damages, comprising £75,000 compensatory damages and £275,000 exemplary damages, and judgment was entered accordingly.

The issues in the present appeal concentrate entirely upon this award of damages and its constituent parts. In a nutshell, the newspaper contends that as a matter of principle there is no scope in law for awarding exemplary damages, either generally or in the particular circumstances of the present case, so that the question of exemplary damages should never have been left to the jury at all. Alternatively it submits that the learned judge misdirected the jury both on exemplary and compensatory damages; and that in any event the sums awarded under both headings were grossly excessive.

The argument before us has raised fundamental questions about jury awards of compensatory and exemplary damages, both generally and with reference to the facts of this case. We have thought it necessary and desirable to address these questions in this judgment.

The article

In the top left-hand corner of the front page of the newspaper there appeared in large letters, accompanied by a photograph of the plaintiff, the words in capital letters "World exclusive" and "Elton's "diet of death"". The reader was then invited to see pages 4 and 5, where the article appeared under a large headline reading "Secret of slim Elton's spitting image" and, in smaller letters, "Doctors warn his "don't swallow" diet is a killer". Below this headline appeared the by-line "EXCLUSIVE from Tony Brenna in Los Angeles and Paul Scott in London".

The text was in the following terms:-

"ROCK superstar Elton John is hooked on a bizarre new diet which doctors have warned could kill him.

Millionaire Elton's weight has plummeted since he started eating food then spitting it out without swallowing.

The star, who suffered from the eating disorder bulimia, has told friends in America: 'I am on the "don't swallow and get thin diet" and I can tell you it works.

I have got the best of both worlds. I get the flavour without becoming a blimp.'

But medical experts in Britain called on once-chubby Elton to give up the diet fad before it makes him seriously ill.

One said: 'this is not a diet, it is another form of bulimia, and that can kill people.'

Victims of the slimming disease binge on food then force themselves to vomit.

ELTON, 45, revealed his latest craze at a Christmas party thrown by his manager, John Reid, at his Hollywood mansion.

Guests at the glitzy bash, attended by stars including L.A. Law heart-throb Corbin Bernsen, watched as Elton chewed party snacks, then disposed of them in his napkin.

He told revellers: 'I love food. I love to eat, but what's the point of swallowing it? You can't taste it as it goes down your throat.'

The 5ft 6in star, who has been treated for drug, alcohol, and food addictions, boasted that his weight is almost down to 10 stone, adding: 'I have finally got all my addictions under control.'

But one partygoer, who watched Elton spitting chewed shrimp and crab into his napkin said that the star looked tired and old.

'He was wearing a black turtle-neck jumper and a blazer that hung on him loosely. He didn't look well,' she said.

'He said he was no longer a bulimic, but he often enjoyed eating without actually swallowing.

The star joined Overeaters Anonymous when friends persuaded him to seek help about his constant bingeing.

He checked into a Chicago clinic on rock pal Rod Stewart's advice after ordering Chinese food and steak from a hotel's room service three times in one afternoon.

Last year he confessed he gorged himself on food then made himself sick for six years during 'periods of intense distress'.

Elton, who had jetted into Los Angeles from London, was hugged on his arrival by old pal and manager, John Reid.

John told him: 'You're too thin. You mustn't overdo this dieting thing, Elton. You look as though you need a good meal.'

Professor Hubert Lacey, who specialises in eating disorders at St George's Hospital Medical School in London, warned: 'It is dangerous because the people who do this are abusing food.

It is likely to increase the problem for the bulimic, because by spitting out they are starving themselves.

Three or four hours later they could binge and then vomit.'

Paulette Maisner, who runs the Maisner Centre for Eating Disorders in Brighton, added: 'Chewing food and not swallowing is one form of bulimia.

It will cause all sorts of psychiatric problems and will almost certainly lead to bingeing later. People die from bulimia, although it is not recognised as a cause of death.

They usually die of heart attacks or kidney failure because they become dehydrated.'

A spokesman for Elton said: 'I don't know anything about this.'

But actress Darla Campbell, who chatted to Elton at the party, said: 'He told me, There was a time when I ballooned up to 12 stone 2lb. and those were the unhappiest days of my life. I couldn't look in the mirror.'

Now the star says he is in great shape thanks to his support groups, including Alcoholics Anonymous and Overeaters Anonymous.

'But I was still amazed to see him spitting chewed shrimp into napkins' said Darla.

'Some people turned away politely when he did it, but Elton didn't seem embarrassed.'"

To the left of the article at the top there appeared a photograph of a somewhat obese Mr John with the caption "Fat and up—Elton John looking chubby but cheery". On the opposite side appeared another photograph of a much slimmer Mr John over the caption "slim down—rock superstar Elton seems thinner, but so much more glum".

The copy on which the article was based had been sent by Mr Brenna to the deputy news editor 4 days earlier on 23rd December. This copy was followed shortly after by a memorandum of the same date, in response to an enquiry by the news editor, describing the alleged sources of Mr Brenna's material; viz. Lisa Stanley and Darla Campbell, who were uninvited guests at the party given by Mr John Reid in Los Angeles, and who alleged that they had observed Mr John's eating habits at the party and had spoken to him. It will be necessary in due course to refer to these two documents and to a number of others in order to examine in more detail the provenance of the article as presented by the newspaper. It is also the case for the newspaper, disputed by the plaintiff, that on 23rd and 24th December a number of unsuccessful attempts were made by Mr Scott, the co-author of the article, to contact various professional employees of Mr John in order to check the story.

What is undisputed is that on Christmas Eve Mr Scott telephoned Mr Frank Presland, a partner in Frere Cholmeley Bischoff, the plaintiff's solicitors, and a conversation ensued in which Mr Scott endeavoured to obtain Mr Reid's telephone number in Los Angeles, as recorded by Mr Presland in his contemporaneous attendance note as follows:-

"FILE:Elton John /Sunday Mirror.

DATE:24 December 1992

REF:FGP/WPS

Returning Mr. Paul Scott's telephone call.

Mr. Scott told me he was from the Sunday Mirror and they were thinking about running a story about Elton John but had been unable to contact anybody at John Reid's office. The story, which he said was based upon 'usual reliable sources' in Los Angeles was that Elton John had an eating disorder and had been recently observed chewing food and spitting it out rather then swallowing it. Mr. Scott said it was obviously very bizarre behaviour. I said first of all that I did not know where Mr. Reid was at present, but that it seemed unlikely that his allegation was true, but no doubt he would be very careful. He said that his source was 'very reliable', and I said that I successfully sue many papers who had first of all told me that. I wished him a Merry Christmas."

The correspondence.

The letter before action on 29th December complained that the article was based on a completely invented story and was plainly libellous of the plaintiff, and sought inter alia a full and unqualified apology.

The editor replied that they were investigating the matter, and that their sources remained adamant that the plaintiff attended the party and made the remarks attributed to him, and that they would be interested to...