The question whether, in giving juries guidance on the assessment of libel damages, a comparison should be made with awards of general damages in personal injury claims was one of policy.
That such a comparison was now permitted in one jurisdiction did not mean it was desirable to introduce the practice elsewhere, let alone wrong in law to prevent it.
There was an element of deterrence in defamation awards which was largely absent from those in personal injury cases. The fact that a large award might inhibit irresponsible journalism did not infringe the right to freedom of expression.
The Judicial Committee of the Privy Council so held when dismissing an appeal by the defendants, the publishers and the former editor of the Daily Gleaner and The Star newspapers in Jamaica, from the decision of the Court of Appeal of Jamaica (Mr Justice Forte, President, Mr Justice Langrin and Mr Justice Harrison) on July 31, 2000, reducing a jury’s award of damages for libel to the plaintiff, Eric Anthony Abrahams, from J$80.7 million, to J$35 million then equivalent to £1.2 million, or £533.000.
The jury’s award, made in 1996, was in respect of the publication in both newspapers in September 1987 of allegations that Mr Abrahams, when minister of tourism for Jamaica between 1980 and 1984, had accepted bribes in awarding contracts to American companies.
The defendants pleaded justification and qualified privilege but their defences were struck out by the Court of Appeal in 1994 after they were unable to plead any facts to support them.
The sole issue at trial, heard by Mr Justice Smith and a jury, was the amount of damages. The jury heard evidence about the effect of the libel on Mr Abrahams and his career and earning capacity.
The Judge directed the jury on the circumstances in which they could award exemplary damages, but in their verdict they stated that they did not award exemplary damages.
The Judge also told them that they were entitled to have regard, in aggravation of the compensatory damages, to the defendants’ persistence in their plea of justification and to the insincerity of the newspapers’ eventual apology.
The Court of Appeal agreed there was ample evidence on which the jury could have awarded aggravated damages, but nevertheless decided that the sum awarded was excessive.
Although it did not have the power given to the English Courts of Appeal by section 8(2) of the Courts and Legal Services Act 1990 and the Civil Procedure Rules to substitute a lower award, the parties agreed that it should do so by consent, rather than order a new trial.
The defendants appealed on the ground that the substituted award was still excessive and in effect curtailed the right to freedom of expression guaranteed by section 22 of the Constitution of Jamaica.
Lord Lester of Herne Hill, QC and Mr Tom Weisselberg for the defendants; Lord Gifford, QC, Mr Winston Spaulding, QC of the Jamaican Bar, and Miss Heather Rogers for the plaintiff.
Lord Hoffmann, giving the judgment of the Board, said that three ways of giving the jury guidance on the amount of the award had been canvassed in recent English authorities.
First, to remind them of the purchasing power of given capital sums, as recommended in Sutcliffe v Pressdram Ltd ([1992] 1 QB 153).
Second, to suggest a comparison with awards in other libel cases. In Rantzen v Mirror Group Newspapers (1986) Ltd (The Times April 6, 1993; [1994] QB 670) the Court of Appeal held that juries should not be told about awards made by other juries, but they could be referred to awards substituted by the Court of Appeal in exercise of its power under the 1990 Act. By the time of Kiam v MGN Ltd (The Times February 11, 2002; [2003] QB 281 the corpus amounted to six cases.
A third source of guidance was to make a comparison with awards of general damages in personal injuries cases. Although such comparison was rejected in Rantzen’s case, the Court of Appeal reversed itself in John v MGN Ltd (The Times December 14, 1995; [1997] QB 586) and since then English juries had regularly been told to have regard to awards of general damages for pain and suffering and loss of amenity in personal injury actions.
Such figures were themselves conventional: the current scale was fixed by the Court of Appeal in Heil v Rankin (The Times March 24, 2000; [2001] QB 272) with a maximum of £200,000 for the most catastrophic injuries. As a result, there was now a ceiling of £200,000 for compensatory damages in libel cases.
The matter was clearly one on which different opinions might be held. The argument in favour of comparison stressed the moral unacceptability of giving damage to reputation a higher value than catastrophic injury to the person.
It was, however, arguable that the assessment of general damages for both injury and libel was more complicated than trying to value the damage, an impossible exercise giving the incommensurability of the subject matter.
Personal injury awards were nearly always founded on negligence or breach of statutory duty rather than intentional wrongdoing. The damages were usually paid out of public funds by insurers and their exemplary and deterrent elements were minimal or non-existent.
Yet the total sums of compensation paid for personal injury were very large. They had an effect on the economy which libel damages did not.
The awards in personal injury actions therefore depended to some extent on what society could afford to pay victims of accidents over and above their actual financial loss.
Different considerations applied to defamation awards. The damages often served not only as compensation but also as an effective and necessary deterrent.
Indeed, the effectiveness of the deterrent was the whole basis of Lord Lester’s argument that high awards would have a “chilling effect” on future applications.
Awards were necessary to deter the media from riding roughshod over the rights of other citizens. Damages had to be sufficient to demonstrate to the public that an injury had been done and that the plaintiff’s reputation had been vindicated.
Moreover, in defamation cases it was usually difficult to prove a direct causal link between the libel and any particular loss of earnings or expenses of the sort which, in personal injury cases, would be separately assessed as special damages. Nevertheless, juries were entitled to take such matters into account in the award of general damages for libel.
In the present case, in which Mr Abrahams was unable to find remunerative employment for five years, loss of earnings must have played a significant part in the jury’s award.
The defendants contended that the courts below had erred in their approach to the guidance to be given to the jury. In particular, they submitted that the Court of Appeal’s rejection of guidance from personal injury awards was an error of law.
Without expressing any view on the current practice in England, their Lordships considered that the matter was open to legitimate differences of opinion. No question of legal principle was involved.
Whether a link should be established between defamation awards and personal injuries awards was a question of policy: see Australian Consolidated Press Ltd v Uren ([1969] 1 AC 590 644).
Their Lordships were unwilling to say that the Court of Appeal was wrong in considering that in Jamaica no change, such as had occurred in England following John’s case, was desirable.
They were entitled to hold that a conventional figure establishing for an award performing one social function was no guide to what should be conventional figure for an award performing a different social function.
The test for whether an award was excessive, as propounded by Lord Justice Neill in Rantzen’s case, was “Could a reasonable jury have thought this award was necessary to compensate the plaintiff and re-establish his reputation?”
That test was founded on article 10.2 of the European Convention on Human Rights and particularly the requirement that any restriction on freedom of expression should be such as was necessary in a democratic society.
The language of section 22 of the Jamaican Constitution, which required that the provisions of any law restricting freedom of expression should be “reasonably required for the purpose of protecting the reputations … of other persons” was somewhat different but there was no difference in the overall meaning.
In the Court of Appeal of Jamaica the President put the test as: “Could a reasonable jury have thought that this award was one which was reasonable to compensate the plaintiff and to re-establish his reputation?”
He concluded that J$80.7 million was “in excess of an amount which is reasonably required by law to protect the position of the respondent, given the provisions of section 22”. Mr Justice Langrin used the words “reasonably necessary”.
Lord Lester contended that the test had been watered down but their Lordships saw no difference in meaning. However, in future it would be better to adhere to Lord Justice Neill’s formulation.
Lord Lester also criticised the Court of Appeal’s failure to explain how it arrived at the substituted figure. But the matter was not capable of detailed analysis.
The Court of Appeal, as the highest court in Jamaica, and having the benefit of local knowledge, was in a better position to say what should be the right award and was perfectly justified in simply saying, after considering all the circumstances, that J$35 million was the amount necessary to compensate Mr Abrahams.
In reducing the jury’s award the Court of Appeal had well in mind the provisions of section 22 of the Constitution. The defendants accepted, although with bad grace, that publication had been wrongful and fell outside the permissible limits of section 22(1).
The only question was whether the damages were no more than was necessary to adequately to compensate the plaintiff. Although it might have a chilling effect on conduct such as that of the defendants, such a large award would not inhibit responsible journalism.
“The Times” 14th July 2003
