UK: From Claimant to Complainant?

According to Rumpole’s creator, John Mortimer, "no brilliance is needed in the law. Nothing but common sense, and relatively clean fingernails". But the laws that govern the media have been a graveyard for common sense in the past, prompting Mark Twain to observe that "whenever a copyright law is to be made or altered, then the idiots assemble".

But quietly, and rather slowly, common sense has been creeping in to the libel Courts. Last week the Guardian won a High Court ruling which averted an expensive libel trial and capped damages for a defamatory article to a maximum of £10,000 after the newspaper utilised the "summary disposal" procedure brought in by the Defamation Act of 1996.

Crucial in persuading Mr Justice Morland to agree that sections 8-10 of the Act should apply was the role of the Guardian Readers Editor, Ian Mayes, who had investigated the complaint and agreed that an apology needed to be published for inaccuracies in the article. A form of words could not be agreed but the Judge said that Mr Mayes had carried out his function "honourably, independently and competently". Praise indeed.

The background to the ruling was a libel claim by James Mawdsley, a Human Rights activist who had been imprisoned in Burma. He complained about an article in June 2001 which, he believed, painted him as a hypocrite who never had any interest in Burma or the campaigner for Burmese democracy Aung San Suu Kyi (when in fact he was one of her biggest fans).

Mr Mawdsley raised the matter with the Guardian readers Editor and, unsatisfied with the form of words offered took the matter to the Press Complaints Commission which decided that the Guardian had complied with its code.

Mr Mawdsley then consulted with solicitors and issued proceedings. He wanted substantial damages and his costs.

The newspaper looked to the 1996 Act which established an underused defence of an offer of amends, which comprises an offer to publish a suitable correction and apology (which has to be sufficient and published with reasonable prominence) together with appropriate compensation up to £10,000 and the Claimant’s legal costs (which have a habit of being rather more than £10,000). If the Claimant decides to refuse the offer the media may rely upon it so long as it does not run another defence. Therefore, one cannot make an offer of amends but say that the article was true just to try to dispose of inconvenient libel actions cheaply.

This sensible idea originated with Lord Hoffman in 1988 but in its execution, a decade later, has become over-complicated.

But, belatedly, it is there and ready to be used. Libel damages have deceased from the heady-heights of a decade ago, when six figure damages were common place. In 1992 Tottenham’s Irving Scholar won £100,000 from the Daily Mail, pop star Jason Donovan £200,000 from The Face Magazine, a Russian got £240,000, some Middle Eastern gentlemen helped themselves to £340,000 and even an MP (not always the most popular of libel litigants) trousered £150,000 from the Daily Mirror.

But in 1991 the Court of Appeal was given the power to substitute its own awards in place of excessive damages. In 1993 they exercised this power declaring that a jury award of £250,000 to television presenter Esther Rantzen was disproportionate to the damage she had suffered (she had remained a successful TV star). The award was reduced to £110,000 but jurors were unimpressed and continued to hand out spectacular damages such as £750,000 to Graeme Souness, the former Liverpool player.

The Court obviously had to do more Elton John was awarded £350,000 in November 1993 after the Sunday Mirror claimed that he had been seen at a party chewing his food and spitting it into a napkin telling guests it was a good way to lose weight. The Court of Appeal got its hands on the case in 1996 and reduced the damages to £75,000 and decreed that in future jurors should be told about the level of damages awarded for the pain and suffering for personal injuries because "it is in our view offensive to public opinion, and rightly so, that a defamation Plaintiff should recover damages for injury to reputation greater …….than if that same Plaintiff had been rendered a helpless cripple or a insensate vegetable".

He was following this thinking when Mr Justice Morland said that £30,000 - equivalent to loss of an eye - would have been an appropriate sum for a jury to have awarded James Mawdsley had there not been any apology from the paper. But he held that the Guardian’s offer of a prompt apology and its general behaviour were substantial mitigating factors. The Claimant was, however, still entitled to some damages and a declaration from the Court that the allegations were indeed false.

The High Court has through changes in the procedural rules and a host of reported decisions, tried to restrict the number of interlocutory applications and to speed up trials - largely to bring the legal costs of the actions down towards something proportionate to the damages awarded. There is much still to be done!

Where a newspaper has got it wrong and accepts this the "summary disposal" procedure provides a cost effective way out where negotiation fails. To help newspapers conclude that they are at error the Reader’s Editor is likely to gain even greater importance.

One day soon it may not be true anymore that libel justice is open to all, like the Ritz hotel.