Purnell v Business F1 Magazine Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Mr Justice Evans-Lombe,Lord Justice Chadwick |
| Judgment Date | 18 April 2007 |
| Neutral Citation | [2007] EWCA Civ 744 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2006/1100 |
| Date | 18 April 2007 |
[2007] EWCA Civ 744
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE GRAY)
Lord Justice Chadwick
Lord Justice Laws and
Mr Justice Evans-Lombe
Case No: A2/2006/1100
Mr D Price. appeared on behalf of the Appellant.
Mr W Bennett (instructed by Steeles) appeared on behalf of the Respondent.
This is a defendant's appeal against an award of damages of £75,000 in a libel case. It is brought with permission granted by Sedley LJ on 9 August 2006 on one ground only. He declined to grant permission on other grounds and a renewed application in respect of those, save for one which was abandoned, was dismissed by May LJ on 15 November 2006. Thus the only live ground is that for which Sedley LJ granted permission. It consists of what to my mind is in some ways a curious point, arising out of the fact that the jury which made the damages award on 4 May 2006 was dealing with quantum only. Eady J had on 14 March 2006 struck out a defence of justification and entered judgment for the claimant—respondent to this appeal—for damages to be assessed.
The material facts can be stated very shortly. The respondent was the team principal of the Jaguar Racing Formula One Team until January 2005 when he was placed on what is sometimes called “gardening leave”. The first appellant is the publisher of a monthly magazine called BusinessF1, whose subject matter is the motor racing world. The second appellant is the magazine's editor.
The article complained of in the proceedings occupied part of page 13 in the April 2005 issue of BusinessF1. It was written by the second appellant. It was headed “Purnell Bribed Top Journalist to Puff Achievements”. The text of the article contained a number of statements which arguably negated the impression contained in the headline. However, the second appellant, who acted in person throughout in the proceedings, admitted in his defence that the article bore the meanings attributed to it in the respondent's pleading to the effect that the respondent had acted dishonestly and corruptly bribed a journalist with his employer's money. The appellants accept, unsurprisingly, that the allegation was indeed a serious one.
The basis on which Eady J struck out the pleaded defence of justification on 14 March 2006 was that, on the evidence, no reasonable jury could conclude that there had been any bribery by the respondent. There was no other defence and the words were plainly defamatory. Accordingly, Eady J entered judgment for the respondent, as I have said, and granted what has been referred to as a standard injunction against repetition. The respondent might have asked Eady J to dispose of the whole case on a summary basis, pursuant to section 8 of the Defamation Act 1996, but in that case damages would have been limited to £10,000.
As was his right, the respondent chose to seek a greater award from a jury. Accordingly, the case proceeded to a trial on damages before Gray J and a jury on 3 and 4 May 2006. It was submitted by counsel for the respondents that there were three elements to the claim: injury to feelings, injury to reputation and vindication. There was no claim for pecuniary loss or for exemplary damages.
The only live ground of appeal concerns the third of these elements, vindication. This is how it is articulated in the skeleton argument for the appellants prepared by their advocate, Mr Price:
“It was wrong in principle for the Judge [Gray J] to allow the jury to include any element of vindication in its award, as the judgment of Eady J fully vindicated [the claimant] to any extent possible by the legal process.”
Summing up to the jury on the second day of the damages trial, Gray J told them, (or rather reminded them—it had been much referred to) that a judge had earlier struck out the defamation defence; no other defence was relied on, their task was only to decide what sum to award by way of damages. He proceeded to identify the factors which the jury should consider in arriving at a figure to compensate the respondent. On the vindication element the learned judge said this:
“Another thing on which Mr Bennett laid considerable stress in his closing speech to you is the wish of Mr Purnell to achieve, by your award, vindication as it is called. What that means is that what Mr Purnell wants you to do is to award a sum of sufficient size to send a signal to people that there was no truth at all in the allegation that he bribed a journalist. Well, it is perfectly right. You are entitled to take account of that understandable wish on the part of Mr Purnell but be a little cautious, if I may suggest it, members of the jury, for this reason. There was not, in the hearing you have participated in over the last two days, a plea of justification put forward.
“So it is not a case like many libel actions where there is maybe a newspaper justifying, or seeking to justify, some serious slur on a man perhaps in the public eye. The case will be reported day after day, the press box would be full of journalists and the allegation, the slur, would be published repeatedly and very, very widely. In that kind of case the need for vindication is obvious because a lot of people would have come to hear about the slur and it would be right and proper for the jury in those circumstances to treat the need for the claimants to achieve vindication through the jury's award as a major consideration.
“Now, you may think this case is rather different from that, although Mr Rubython has made a number of comments suggesting that there might have been some truth in what was published in the article after all, the fact is there has not been a plea of justification on the record, the subject of evidence before you, nor (for all I know) has there been reporting of the sort of questions that Mr Rubython was asking in the course of his cross-examination yesterday.
“Yes, bear in mind the legitimate wish for vindication but perhaps give it rather less significance in the context of this case than you might have in some other cases where there was a plea of justification being advanced on the subject of evidence. But in the case of vindication, as in the case of all the other factors that come into the mix when deciding the amount of the award, it is for you to decide what weight each of those factors should bear.”
As regards the overall quantum of damage, Gray J in his summing up suggested a bracket of between £25,000 and £60,000, making it clear, however, that that was only an indication and the jury was free to go below or above it. It is well established that general damages in defamation cases serve the three functions submitted by counsel before Gray J: to console the claimant for the injury to his feelings occasioned by publication of the defamatory statement; to repair the harm to his reputation; and as a vindication of his reputation. The learning that is often cited as explaining the element of vindication in defamation damages is this following passage from the speech of Lord Hailsham, Lord Chancellor in Broome v Cassell [1972] AC 1027 at 1071c-e:
“In actions of defamation and in other actions where damages for loss of reputation are involved, the principle of restitution in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. As Windeyer J. well said in Uren v John Fairfax & Sons Pty. Ltd., 117 CLR 115, 50:
“'It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways- as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”
In Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670, Neill LJ giving the judgment of the court said this:
“Despite Mr Gray's submissions to the contrary it seems to us that the damages for defamation are intended at least in part as a vindication of the plaintiff to the public. This element of the damages was recognised by Windeyer J. in Uren v John Fairfax & Sons Pty. Ltd [1966] 117 C.L.R. 118, 150 and by Lord Hailsham of St Marylebone L.C. in Broome v Cassell & Co Ltd [1972] A.C. 1027, 1071.”
Then a little later Neill LJ said this:
“… the jury should be invited to consider the purchasing power of any award which they may make. In addition they should be asked to ensure that any award they make is proportionate to the damage which the plaintiff has suffered and is a sum which it is necessary to award him to provide adequate compensation and to re-establish his reputation.”
The re-establishment of the claimant's reputation there referred to is the same thing as its vindication.
The appellants, through Mr Price, are at pains to emphasise the undoubted proposition that an award of damages for defamation is a restriction upon freedom of expression within the meaning of article...
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