Mr Simon Blake v Mr Laurence Fox

Hearing date: 22 nd March 2024

Approved Judgment

This judgment was handed down remotely at 2pm on 25 th April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

THE HONOURABLE Mrs Justice Collins Rice

Introduction

The background to this case appears in full in the liability judgment Blake & Seymour v Fox [2024] EWHC 146 (KB). Mr Fox had, at an early stage in these proceedings, been held to have made factual allegations in two tweets that Mr Blake and Mr Seymour, respectively, ‘ was a paedophile, someone who had a sexual interest in children and who had or was likely to have engaged in sexual acts with or involving children, such acts amounting to serious criminal offences’. That has now been determined to have been a baseless and indefensible libel in each case, and judgment has been entered for Mr Blake and Mr Seymour in their defamation claims against Mr Fox.

The liability judgment (see [166]) itself ‘ stands as the beginning of the legal vindication to which Mr Blake and Mr Seymour are entitled, as successful defamation claimants’. This judgment now deals with the further remedies they seek.

They each ask for (a) an award of a sum of money in damages; (b) an injunction to restrain Mr Fox from publishing the same or similar defamatory statements; and (c) an order compelling Mr Fox to publish a summary of the judgment in these proceedings on his X (Twitter) account.

Legal framework

(a) Libel damages

There is no material dispute between the parties as to the correct legal approach to assessing quantum of damages. It may be shortly stated by way of general framework.

Defamation (libel) is a tort or civil wrong. The starting point for any award of damages in tort is that the court should award the sum of money which will, as nearly as possible, restore the injured party to the same position he would have been in had the tort never been committed. There is of course no penal element to an award of libel damages; the exercise is purely restorative.

But the nature and history of libel, and its focus on reputational harm and the restorative vindication of reputation, has resulted in the evolution of a distinctive approach to assessing damages for defamation. As Nicklin J observed in Monir v Wood [2018] EWHC 3525 QB at [228], ‘ Damages for libel cannot be calculated on any mathematical basis. By definition, they seek to provide compensation for harm that it is almost impossible to quantify in monetary terms’. The exercise is necessarily therefore a broad and holistic one.

That is further underlined by Nicklin J in his observations Lachaux v Independent Print [2021] EWHC 1797 (QB) at [227] about claims for aggravated damages in defamation (of which this is one):

In my judgment, separating out a specific award for aggravated damages is unnecessary and, I consider, generally unwise. The Court's task is to assess the proper level of compensation, taking into account all the relevant factors, which include any elements of aggravation. If, as the authorities recognise, the assessment of libel damages can never be mechanical or scientific, attributing a specific figure to something as nebulous as aggravation has an unconvincing foundation. Worse, as it would represent the imposition of a clearly identified additional sum of money, it risks the appearance of being directly attributed to the conduct of the defendant. That comes perilously close to looking like a penalty. For these reasons, I consider the better course is to fix a single award which, faithful to the principles by which damages in defamation are assessed, is solely to compensate the Claimant. The award can properly reflect any additional hurt and distress caused to the Claimant by the conduct of the Defendants. …

As well as being broad and holistic, the exercise is also, as Mr Green KC, Leading Counsel for Mr Fox, put it, undertaken, within a framework of principle, on an ‘ intensely fact-specific’ basis. That framework of principle does include maintaining broad comparability within the tort and between torts. So regard may be had to other awards in defamation cases of a comparable nature, although the authorities are at pains to emphasise that no two defamation cases are ever really the same. Here, the parties have drawn my attention to a range of example awards for comparative purposes, and I have borne them in mind by way of guideline. But the gulf between the conclusions they urge on me as a result rather underlines the selectivity inherent in the exercise of finding points of similarity to and difference from past decisions. Regard may also be had to the (very differently assessed) awards in personal injury cases to ensure that damages for defamation are, and are seen to be, proportionate and realistic. But these comparative exercises are by way of guidance only, and the focus must remain, intensely, on the circumstances of the individual case.

The relevant legal principles particularly applicable to the tort of defamation were set out clearly by Warby J (as he then was) in Sloutsker v Romanova [2015] EWHC 2053 at [74]–[82] and in Barron v Vines [2016] EWHC 1226 at [20]–[21], and I have directed myself in full to those passages. Broadly, the purpose of an award of damages in defamation proceedings is to compensate for injury to reputation and to feelings, and in particular to vindicate claimants, so far as money can to do that. Vindication and compensation are not to be thought of in compartmentalised terms: the overall purpose of the award remains to restore a claimant, to the extent money can do so, to the position as if the libel had not occurred. But in defamation cases that means not only redressing the balance in terms of quantifiable losses, but unequivocally albeit proportionately restoring a claimant's standing to its previous state. (In the present case, I have already described the Claimants' previous standing as ‘pristine’.) As the authorities put it, the sum awarded must be an outward and visible sign of vindication, sending a message restoring a claimant's good name ‘ sufficient to convince a bystander of the baselessness of the charge’. If an award fails to achieve vindication, it fails properly to compensate and restore the status quo ante.

In assessing damages, the court takes account of all the relevant facts, and in particular the gravity of the defamation, the extent of its publication (including its republication by onward ‘percolation’), and evidence of the harm it has done. Fact sensitivity remains the hallmark of the exercise, and facts must be established in the usual way by evidence. But the authorities' acknowledgment of the essential intangibility and imprecision of the harms and redresses at the heart of the exercise fairly and inevitably read across to the nature of the relevant evidential and fact-finding processes involved.

(b) Injunctive relief

Injunctive relief is regularly afforded to successful defamation claimants, to restrain the publication of the same or similar libel. Final injunctive relief, restraining publication post-judgment, is distinctively different from pre-trial interim relief, since the implication of the judgment is necessarily that the published libel is not a species of free speech protected by Article 10 of the European Convention on Human Rights. Nicklin J's observation about permanent, post-judgment, injunction in Lachaux at [239] was that ‘ it is the natural remedy that flows from the Court's decision’, and, in the absence of satisfactory undertakings, it may be necessary to injunct further publication to give full effect to that decision.

But, importantly, it is a discretionary remedy. It is not available as of right. In considering whether to exercise its discretion, and if so how, a court will have regard to all the circumstances of a case, including the conduct of the parties, and will focus in particular on assessing the risk of repetition of the defamation should injunctive relief not be granted.

(c) Order for publication of judgment summary

Section 12 of the Defamation Act 2013 provides as follows:

Power of court to order a summary of its judgment to be published

(1) Where a court gives judgment for the claimant in an action for defamation the court may order the defendant to publish a summary of the judgment.

(2) The wording of any summary and the time, manner, form and place of its publication are to be for the parties to agree.

(3) If the parties cannot agree on the wording, the wording is to be settled by the court.

(4) If the parties cannot agree on the time, manner, form or place of publication, the court may give such directions as to those matters as it considers reasonable and practicable in the circumstances.

(5)…

The power to order publication of a judgment summary is itself a distinct incursion into a defendant's rights to freedom of expression, protected by Article 10 of the ECHR, and must be exercised mindfully of that. The incursion involved must be justified by reference to the legitimate aim of protecting reputation, and necessary and proportionate to that aim.

Consideration

(a) Quantum of damages

I hold in mind the guidance of the authorities, and the imperative to focus on the key facts and evidence. So I begin with the evidential and factual analysis of...