KB-2022-003483 - [2025] EWHC 1912 (KB)

The principles relating to general damages were set out by Warby J in Barron v Vines [2016] EWHC 1226 (QB) at paras 20 – 21:

“[20] The general principles were reviewed and re-stated by the Court of Appeal in John v MGN Ltd [1997] QB 586 … Sir Thomas Bingham MR summarised the key principles at pages 607 – 608 in the following words:

The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must [1] compensate him for the damage to his reputation; [2] vindicate his good name; and [3] take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is [a] the gravity of the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. [b] The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. [c] A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that [d] compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way... ”

[21] I have added the numbering in this passage, which identifies the three distinct functions performed by an award of damages for libel. I have added the lettering also to identify, for ease of reference, the factors listed by Sir Thomas Bingham. Some additional points may be made which are relevant in this case:

(1)

The initial measure of damages is the amount that would restore the claimant to the position he would have enjoyed had he not been defamed: Steel and Morris v United Kingdom (2004) 41 EHRR [37], [45].

(2)

The existence and scale of any harm to reputation may be established by evidence or inferred. Often, the process is one of inference, but evidence that tends to show that as a matter of fact a person was shunned, avoided, or taunted will be relevant. So may evidence that a person was treated as well or better by others after the libel than before it.

(3)

The impact of a libel on a person's reputation can be affected by:

a)

Their role in society. The libel of Esther Rantzen [Rantzen v Mirror Group Newspapers(1986) Ltd [1994] QB 670] was more damaging because she was a prominent child protection campaigner.

b)

The extent to which the publisher(s) of the defamatory imputation are authoritative and credible. The person making the allegations may be someone apparently well-placed to know the facts, or they may appear to be an unreliable source.

c)

The identities of the publishees. Publication of a libel to family, friends or work colleagues may be more harmful and hurtful than if it is circulated amongst strangers. On the other hand, those close to a claimant may have knowledge or viewpoints that make them less likely to believe what is alleged.

d)

The propensity of defamatory statements to
percolate through underground channels and contaminate hidden springs, a problem made worse by the internet and social networking sites, particularly for claimants in the public eye: C v MGN Ltd (reported with Cairns v Modi at [2013] 1 WLR 1051 ) [27].

(4)

…..

(5)

A person who has been libelled is compensated only for injury to the reputation they actually had at the time of publication. If it is shown that the person already had a bad reputation in the relevant sector of their life, that will reduce the harm and therefore moderate any damages. But it is not permissible to seek, in mitigation of damages, to prove specific acts of misconduct by the claimant, or rumours or reports to the effect that he has done the things alleged in the libel complained of: Scott v Sampson (1882) QBD 491, on which I will expand a little. Attempts to achieve this may aggravate damages, in line with factor [d] in Sir Thomas Bingham’s list.

(6)

Factors other than bad reputation that may moderate or mitigate damages ... include the following:

a)

Directly relevant background context within the meaning of Burstein v Times Newspapers Ltd [2001] 1 WLR 579 and subsequent authorities ...

b)

Publications by others to the same effect as the libel complained of if (but only if) the claimants have sued over these in another defamation claim, or if it is necessary to consider them in order to isolate the damage caused by the publication complained of.

c)…

d)

A reasoned judgment, though the impact of this will vary according to the facts and nature of the case.

(7)

In arriving at a figure it is proper to have regard to (a) jury awards approved by the Court of Appeal: Rantzen 694, John, 612; (b) the scale of damages awarded in personal injury actions: John, 615; (c) previous awards by a judge sitting without a jury: see John 608.

(8)

Any award needs to be no more than is justified by the legitimate aim of protecting reputation, necessary in a democratic society in pursuit of that aim, and proportionate to that need: Rantzenv Mirror Group Newspapers (1986) Ltd ... This limit is nowadays statutory, via the Human Rights Act 1998.”

Factors and circumstances that may be regarded as aggravating a claimant’s damage were identified by Nourse LJ in Sutcliffe v Pressdram Ltd [1991] 1 QB 153 at para 184:

“It is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff’s proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation.

The conduct of a defendant which may often be regarded as aggravating the injury to the plaintiff’s feelings, so as to support a claim for ‘aggravated’ damages, includes a failure to make any or any sufficient apology or withdrawal; a repetition of the libel; conduct calculated to deter the claimant from proceeding; …the general conduct either of the preliminaries or of the trial itself in a manner calculated to attract wide publicity; and the persecution of the plaintiff by other means.”

Aggravated damages are sometimes awarded as a separate sum. However, in Lachaux, Nicklin J explained why he considered this practice to be unnecessary and unwise, given that the court’s task is to assess the proper level of compensatory damages due to the claimant taking into account all of the relevant factors (para 227).