Martin Gilham v MGN Ltd
| Jurisdiction | England & Wales |
| Judge | Lewis |
| Judgment Date | 12 August 2020 |
| Neutral Citation | [2020] EWHC 2217 (QB) |
| Court | Queen's Bench Division |
| Date | 12 August 2020 |
| Docket Number | Case No: QB-2019-004601 |
[2020] EWHC 2217 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Lewis
(sitting as a Judge of the High Court)
Case No: QB-2019-004601
Jacob Dean (instructed by Carter-Ruck) for the Claimant
Christina Michalos QC (instructed by Reach PLC Legal Department) for both Defendants
Hearing date: 19 June 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Lewis
The claimant seeks the court's determination of the amount(s) to be paid to him by way of compensation pursuant to s.3(5) of the Defamation Act 1996, following his acceptance of a qualified offer of amends.
The following matters are in issue:
i) Whether there should be a single award or separate awards of compensation in respect of each defendant;
ii) General damages:
a) the sum or sums to be awarded to the claimant by way of compensation;
b) the admissibility of two of the defendants' Burstein particulars; and
c) the impact, if any, which the defendants' Burstein particulars have on the level of the compensatory award; and
iii) The discount to be applied to the award of general damages to take account of the qualified offer of amends.
I have considered all the evidence in the bundle, including witness statements from the claimant, his wife and the defendants' in-house lawyer.
The claimant has worked as a teacher for over forty years and is also a rugby coach. He lives in Kent. The first defendant is the publisher of the Sunday Mirror newspaper and the website www.mirror.co.uk. The second defendant is the parent company of the first defendant, and publisher of the website www.kentlive.news.
The articles complained of were about an incident that took place at the claimant's school on 3 February 2017, and its aftermath. The following is not disputed, and derives mostly from the claimant's evidence:
i) On 3 February 2017, the claimant noticed that one of the children in his class had walked mud into the classroom. He held a pupil's collar, raising him slightly but not off the ground, and moved him towards the door. This was witnessed by the boy's father, to whom the claimant apologised straightaway.
ii) The school suspended the claimant immediately. There was a formal disciplinary hearing on 26 May 2017. The claimant explained in his witness statement that the incident was found to have amounted to gross misconduct, justifying dismissal without notice. The claimant appealed. There was an appeal hearing on 13 July 2017 at which the dismissal was upheld.
iii) The school referred the matter to the Teaching Regulation Agency (TRA). There was a public hearing on 3 December 2017 at which the TRA heard evidence from the pupil's father. The TRA has published its decision, which the claimant has put in evidence, and on which both parties rely:
a) The allegation considered by the TRA panel was whether the claimant was guilty of unacceptable professional conduct and/or conduct that may bring the profession into disrepute, namely that he engaged in inappropriate physical contact with a pupil which involved the use of unnecessary force. At the TRA hearing, the position advanced on behalf of the claimant was that his actions were misjudged but the contact was neither inappropriate nor involved the use of unnecessary force, and had been used to prevent damage to the carpet from muddy feet.
b) In considering whether to make findings of fact:
i) The TRA panel found the following proven: whilst employed as a teacher at Northdown Primary Academy, the claimant engaged in inappropriate physical contact with Pupil A, on or around 3 February 2017, which involved the use of unnecessary force.
ii) The TRA panel “considered that [the claimant's] actions were inappropriate and that the force used was unreasonable, since there was a less intrusive option available to [the claimant] of halting the children from coming in by use of his voice, rather than engaging in physical contact. This allegation is therefore found proven.”
c) The TRA decision noted: (i) the agreed position was that contact was with the pupil's clothing only; (ii) the pupil's father had felt comfortable for the pupil to return to the classroom; (iii) when asked about whether he felt safe, the pupil's first response did not relate to the incident; (iv) the pupil's father confirmed that the child had subsequently moved school because of the unsettling effect of there being numerous supply teachers; and (v) “it was fair to draw the conclusion that there was no psychological harm” to the pupil as a result of the incident.
d) The TRA panel then went on to consider whether the facts proven amounted to unacceptable professional conduct and/or conduct that may bring the teaching profession into disrepute. It recorded the following:
i) “The panel considered [the claimant's] conduct to have been misjudged but that it did not meet the threshold to constitute misconduct of a serious nature, nor did it fall significantly short of the standard expected of a teacher. Any breach of Part Two of the Teachers' Standards, was relatively minor.”
ii) “The panel did not consider this to be an act of violence… The panel considered this to be a case of [the claimant] having made a poor professional choice as to how he handled the situation, but that a single incident of this nature did not come near to approaching the degree of serious misconduct that warrants action by a regulator.”… “Accordingly, the panel is not satisfied that [the claimant] is guilty of unacceptable professional conduct”. Furthermore, “the panel did not consider his conduct to have been sufficiently serious that the public would consider that it may bring the profession into disrepute”.
iv) On 11 December 2018, the TRA sent a letter to the claimant confirming that he had not been found “guilty of unacceptable professional conduct/conduct that may bring the profession into disrepute”, that “no further action would be taken” and that the claimant's “ability to teach remains unaffected”. The claimant relies on this letter and says its importance cannot be overstated.
There are four articles complained of:
i) An article published by the first defendant on the Mirror's website at 23:11 on 15 December 2018 and removed on 20 December 2018.
ii) An article published by the first defendant in the 16 December 2018 edition of the Sunday Mirror newspaper. It was published on page 18, below the fold, occupying most of the bottom half of the page with the headline in a large font.
iii) An article published by the second defendant on the Kent Live website at 07:43 on 18 December 2018.
iv) An updated version of the Kent Live article published by the second defendant at 13:04 on 20 December 2018 and available until 15:06 or thereabouts on 21 December 2018 (“the Updated Kent Live Article”).
The text of the second article complained of was as follows:
Sunday Mirror Article: 16 December 2018
Headline: I saw teacher drag my son by scruff of his neck
EXCLUSIVE BY JOHN SIDDLE
A teacher grabbed a seven-year-old boy by the scruff of his neck – unaware that the lad's dad was standing at the classroom door.
Martin Gilham lost his temper because little Robbie Rayner and other pupils had come into class with mud on their shoes.
So he dragged tearful Robbie out – and frogmarched him straight into the arms of his dad. Gilham apologised but was sacked and found guilty of using “excessive and unnecessary force” at a tribunal.
Dad Rob Rayner, 38, said: “I had just dropped Robbie off at the classroom and there were other kids who had gone in with muddy shoes.
“Robbie didn't have the tiniest bit of dirt on his shoes but Gilham went straight for him, despite him being the smallest kid in his class. He yelled something like, 'I will not have muddy feet in my classroom.
“He grabbed Robbie by the scruff of his neck and dragged him about five metres to the door. Robbie's clothes were up behind his ears. He was crying his eyes out. He jumped straight into my arms.”
[Picture of Robbie and Rob with caption “SHOCKED Robbie and his dad Rob”]
Mr Gilham was said to have gone “as white as a sheet” when he realised that Rob had witnessed the whole incident at Northdown Primary in Margate, Kent.
Rod said: “He wasn't aware that I was still at the door to the classroom.
“He looked shocked, let go and said. ‘That was out of order, I'm sorry’. I was angry. I had to control myself.
“If there weren't other kids around, I'd probably have dragged him out to the car park and stamped on his head. He had no right to put his hands on my son.” Robbie, now nine, has moved to Palm Bay Primary after struggling with lessons after the incident in February last year.
[Picture of the school with caption “ORDEAL Northdown School”]
“He was really unsettled and he stopped wanting to be at school,” said Mr Rayner, a retail worker who is married to Claire, 37, an NHS worker. “Nearly two years on, he's at a new school and starting to enjoy education again.”
Mr Gilham was found guilty of unacceptable professional conduct by the Teaching Regulation Agency in Coventry. His punishment will be announced later.
Mr Rayner, who gave evidence at the hearing, said: “Gilham had a reputation for being strict and other parents had run-ins with him. He was quite abrupt.”
A school spokesman said: “Following allegations of...
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