UK: Libel Damages: When £30,000 is too Much and £200,000 too Little

Last Updated: 15 November 2002
Article by Julian Pike

At the end of July the Court handed down two judgments concerning the level of libel damages. In one the Court of Appeal reduced general damages from £350,000 to £30,000. In the second the trial judge, sitting without a jury, awarded £200,000 to each of the Claimants. The libel courts are not the lottery that they were in the late 1980's and early 1990's, but what are we to make of these latest decisions.

Campbell-v-News Group

Alan Campbell had been accused by the News of the World in an article published in 1995 of being an active paedophile. The allegations included (a) sexually abusing children lured to his house with the promise of money; (b) making videos of the abuse and marketing the tapes; (c) demanding money for the return of a video; (d) admitting to enjoying watching teenagers through peep-holes and (e) generally having a perverted interest in children.

At trial the paper relied on a video which showed Campbell engaging in sexual activity with another adult male and apparently discussing between themselves watching children in public lavatories. The video provided no justification in respect of allegations (a) to (c) but the paper maintained it could and did justify (d) and (e).

The case and the trial turned out to be most bizarre. Campbell, representing himself, accused the paper of, amongst other matters, relying on a video that had been doctored and of suborning witnesses. The paper made similar allegations against Campbell. The claims and counter claims focused on attempts to respectively explain away and explain the video. The trial in Liverpool was originally listed for June 2000. It was adjourned almost immediately on account of Campbell's remarks to the jury. It then was re-listed for a year later only to be adjourned after 10 days when one of Campbell's principal witnesses, his son –who had at various times purportedly assisted the paper and who had given evidence during the trial – was killed in a car crash. The trial was adjourned for three months.

On its resumption (with the same jury), the judge handed the jury a note outlining the evidence given by Campbell's witnesses before the adjournment without referring to their cross-examination or changes in their evidence. The freelance reporter responsible for the story was, during the trial, exposed as someone with a previous conviction for perjury. The judge directed the jury that it was a matter of impression for them as to whose evidence to believe. The jury awarded Campbell £350,000.

Paper's Appeal

The News of the World appealed against quantum only. It argued that on any analysis of the evidence concerning the video, Campbell's case was a fabrication and therefore the award was perverse; that the judge failed to properly direct the jury on the evidence generally and especially as concerned the video. Furthermore the paper claimed that it had suffered procedural unfairness arising out of the form of the judge's note to the jury and the fact that Campbell had 'broken nearly every rule' which would bind a professional advocate, including putting words into the mouth of witnesses and making assertions of fact when cross-examining.

The paper made a length submission to the Court of Appeal outlining how Campbell's case on the video could not stand up. However, while it could partially justify the article, the News of the World accepted that it could not fully justify the story and therefore Campbell was entitled to some damages, but that any damages that the Court might think of awarding should be further reduced on account of Campbell's conduct.

Findings

The Court of Appeal found that three of Campbell's witnesses' evidence to be wholly incredible. In contrast, with the exception of the freelance journalist, the paper's witnesses were reliable. The Court went further. It found Campbell guilty of the "grossest misconduct up to and including the trial". He had deliberately tried to pervert the course of justice by suborning his son and his son's partner. He had attacked the credibility of and honesty of an entirely innocent third party who had come forward to assist the paper as well as falsely alleging against two solicitors giving evidence for the paper that they were involved in bribing witnesses. As a result, the Court took the view that no reasonable jury could have awarded Campbell £350,000, such a sum being excessive. It also found the judge had misdirected the jury and that there had been procedural unfairness.

Accepting that the video was genuine and the paper had justified Campbell's perverted interest in boys, but acknowledging that the paper accepted it failed to justify actual abuse of boys, the Court considered the maximum it could award was £100,000. However, this was reduced still further on account of Campbell's gross misconduct and the Court of Appeal awarded him £30,000.

Lillie and Reed

Christopher Lillie and Dawn Reed's case against Newcastle City Council and a four-man Review Team was heard over 79 days beginning on 11 January 2002 with judgment handed down on 30 July. The judgment ran to some 1564 paragraphs. Lillie and Reed sued the Defendants in respect of a report published by the Review Team that had been appointed by the Council. The appointment followed allegations made against the pair of sexual abuse of very young children while both were nursery nurses in or about 1993. Both had been dismissed from their jobs for gross misconduct after disciplinary hearings in February 1994. Lillie did not attend on legal advice and Reed chose not to give evidence. Both at the time were also facing criminal charges.

In 1994, they faced 11 criminal charges, the most serious alleging that Lillie had raped a child when she was only 2 or 3 years old. The lead charges were thrown out by the Judge for a number of reasons including one child having exonerated Reed and that Lillie would be prejudiced if the lead case against him went ahead because of the incapacity of the alleged victim where there was no supporting evidence. The five year old girl's incapacity was due to her age and the fact that she would be giving evidence when her video evidence had been filmed a year earlier and the alleged incidents took place 15 months earlier again. With the lead charges dismissed, the Crown decided not proceed with the remaining counts.

The Review Team

By the end of 1993, the Council faced multiple complaints from parents. In December 1993, the Council decided to set up a Review Team to consider the allegations of multiple abuse. After some delay in establishing the team and various changes to its scope, it eventually published its report in November 1998. In summary it concluded that Lillie and Reed had sexually, physically and emotionally abused young children in their care; had made child pornography filming themselves and others in sexual acts with the children and that they had conspired together in their enterprise. The Report was supplied to the Council by the Review Team. The former then distributed it widely to anyone deemed to have a legitimate interest. It was immediately attacked by Counsel for Reed and the prosecution in the criminal proceedings. Reservations were also expressed by the Council's Director of Social Services.

Libel proceedings were issued against the Council and the authors of the report, the Review Team. The Council chose to rely on qualified privilege and not to argue that the allegations were true. This was a tactical decision given it was also defending claims from parents of allegedly abused children. The Review Team relied on Justification and Qualified Privilege. It is not possible in this article even to begin to do justice to the evidence at trial or the judge's summing up of it in his judgment. There were three expert reports, evidence relating to allegations of abuse against 31 children and at least ten witnesses giving evidence in relation to Qualified Privilege.

In short, Mr Justice Eady found that the defence of Justification from the Review Team was not made out: the allegations against Lillie and Reed were untrue. As for qualified privilege, he found that the Council succeeded, but that the Review Team failed in its reliance upon this defence because it had acted with malice. The judge went through, at some length, several examples of conduct amounting to malice and summarised what he described as the "most striking examples" of claims made in the Review Team's report which they must have known to have been false. In summary, he said of them:

"They abused the occasion for which they had striven so hard to ensure that blanket protection. Its four members consciously, after a detailed consideration of the material assembled before them, set out to misrepresent the state of the evidence available to support their joint belief that Mr Lillie and Miss Reed … were child abusers (and indeed abusers on a massive scale) and to give readers the impression that statements by parents and/or children had been corroborated by police enquiries."

On any view, the Judge's conclusions and findings of fact were a crushing indictment on the Review Team, their methodology and the Council's failures in appointing the individuals to the Review Team and the terms on which that Team were to operate. The judge concluded that the Council had only itself to blame. Consequently, despite finding for the Council, he refused to order that the two Claimants meet their costs.

Compensation

As with Campbell, Lillie and Reed claimed special damages as well as general compensatory damages. Again as in Campbell, the special damages claim is to be dealt with at a later hearing. The Judge was of the view that it was difficult to think of a charge "more calculated to lead to the revulsion and condemnation of a person's fellow citizens than that of the systematic and sadistic abuse of children". The possible exception is, of course, murder. In weighing up the level of damages to award, the Judge took account of the following points:

  • Damage to hurt feelings, distress, embarrassment and anxiety and fear of physical attack;
  • The need to compensation for injury to reputation;
  • The need to vindicate or restore their reputation;
  • The seriousness of the allegations;
  • The length of time that they had gone uncorrected;
  • The lack of a retraction or apology;
  • The scale of publication/re-publication;
  • The failure by the Review Team to give Lillie and Reed warning of what was to come on publication of the Report;
  • The pursuit by way of justification of "the wildest and most serious allegations";
  • The Review Team's malice.

In awarding each Claimant £200,000 - the effective ceiling for general damages in libel actions - Mr Justice Eady commented that he was:

"quite satisfied that each of the Claimants have merited an award at the highest permitted level. Indeed, they have earned it several times over because of the scale, gravity and persistence of the allegations and of the aggravating factors."

In awarding the maximum level now permitted, he considered that this vindicated and recognised their innocence and fully justified their right "to exist for what remains of their lives untouched by the stigma of child abuse".

The Court of Appeal in Campbell provided an annex to its judgment which set out a useful summary of the authorities on quantum and the ability of the Court of Appeal to substitute its own award for the jury's where there had been material procedural unfairness and misdirection and where the Court, as in Campbell, had been invited to substitute its own award. While Mr Justice Eady's judgment did not provide a like summary, paragraphs 1534 to 1551 of this judgment clearly set out the factors which caused him to arrive at the sum of £200,000. In both cases, it is difficult, if not impossible, to see that there are any reasonable grounds for appeal on quantum. Nonetheless, one is still left with a feeling that Campbell walked away with too much and Lillie and Reed too little. In Campbell's case, would a reasonable jury, properly directed, consider that up to £100,000 is an appropriate award to justify the gap between what the News of the World proved to the Court of Appeal's satisfaction, namely that Campbell admitted to enjoying watching teenagers through peepholes and generally having a perverted interest in children and what it could not prove, namely its failure to justify him sexually abusing children? Equally, having found him guilty of trying to pervert the course of justice, would a reasonable bystander consider that he should still be awarded the significant sum of £30,000? Some might say that an award of £30,000 merely acts as an incentive and not a deterrent to those who might be minded to follow a similar path. There is a strong argument that, in such circumstances, it is appropriate, as a matter of public policy, that those found to have perverted or to have attempted to pervert, the course of justice should lose any right to damages.

Conversely, in the case of Lillie and Reed, if there ever was an example of two claimants deserving of a sum greater than the general accepted ceiling on compensatory damages, these two claimants satisfy that test. Indeed, the judge said as much. In limiting the award to £200,000, the judge has, quite properly, eliminated any prospect of an appeal on quantum alone, but the catastrophic findings against the Review Team and the Council, coupled with the need to compensate Lillie and Reed, could in this very rare example have justified a much higher award of, say, £500,000. The findings and award to Lillie and Reed will undoubtedly have significant ramifications beyond Newcastle City Council, but how much more powerful - and justly so- would an award of half a million pounds be?

Farrer & Co represented News Group in its appeal against the judgment in favour of Campbell.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

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