Mr Justice
Eady
:
- The purpose
of
this application is for the court to determine the appropriate amount
of
compensation to be paid by News Group Newspapers Ltd to Mr David Turner under section 3(5)
of
the Defamation Act 1996. There is a second Defendant, Arisara Turner, who is one
of
the Claimant's former wives. Judgment was obtained against her, through his former solicitors, on 29th June 2004. The Defendants are sued in respect
of
the same publication, as joint tortfeasors, and it would thus not be appropriate for there to be two awards
of
compensation. The ordinary principles
of
law would apply in this respect, even though any sum fixed in these proceedings would technically be characterised as "compensation" rather than
libel
damages. There could be no question, however,
of
the Claimant recovering twice over.
- Mr Turner complained
of
an article published in The News
of
the World on 15th February 2004 as part
of
more general coverage, spread over two pages, under the headings "How explosion in sex parties can be make-or-break affairs" and "SWINGERS & LOSERS!" The article purports to set out the stories
of
a number
of
people who have had experience
of
"swinging" a term which is defined in the first
of
the articles as being "hooked on sex with strangers". The article covers "wifeswapping" as well. These activities are said to be "booming thanks to the internet explosion that has set thousands hunting for thrills at new sex clubs".
- There is also a complaint about the article appearing on the first Defendant's website.
- The article which particularly concerns Mr Turner is headed "ARISARA 'IT TURNED ME ON BUT IN THE END IT WRECKED MY MARRIAGE' ". There is a photograph alongside the articles
of
Arisara Turner, the second Defendant, who would no doubt be recognisable by some readers as one
of
Mr Turner's former wives. They were married in February 1999. They separated first in 2001 and then, as I understand the position, resumed co-habitation shortly afterwards for another two years or so. People could only identify Mr Turner as the subject
of
the article if they were in a position to recognise the photograph, since he was not mentioned by name.
- The article contains the words complained
of
:
"THE swinging scene was meant to spice up sultry Arisara Turner's marriage but ended up wrecking it.
The beautiful photographer (pictured right) was 25 when she was introduced to a circle
of
middle-class swappers by her businessman husband at a Coventry club.
'I was nervous and needed Dutch courage', recalled Arisara, who lives in west London.
'But inside I spotted a woman eyeing me up and we ended up in a clinch as my husband watched. He couldn't seem to get enough and it turned me on.
Doctors
'But he kept pressuring me to have sex with the men too, and that I didn't like even though they were quite well-to-do people, even policemen and doctors.
'After a while I got fed up with it and decided I didn't want to go any more. That caused furious rows at home and in the end we divorced'. "
- The general message
of
the two page spread overall appears to be that "swinging" and
wife-swapping are risky activities which can lead to jealousy and ultimately the break up
of
relationships.
- Mr Turner relies upon eight sub-paragraphs
of
natural and ordinary meanings which
he attributes to those words:
"5.1 The Claimant is and/or was involved in a twilight world
of
swingers and wife-swapping and was depraved and immoral.
5.2 The Claimant is and/or was a member
of
a Coventry based sex, swinging and/or wife-swapping club and/or circle.
5.3 The Claimant is and/or was accustomed to having sex with strangers and that the consequence
of
the Claimant's 'craze' for sex with strangers was the breakdown
of
his marriage.
5.4 The Claimant introduced the second Defendant to a circle
of
middle-class wife-swappers.
5.5 The Claimant obtained perverse enjoyment from watching the second Defendant 'in a clinch' with another woman.
5.6 The Claimant pressurised the second Defendant to have sex with other men.
5.7 The Claimant is and/or was a swinger and/or a wifeswapper and/or a loser.
5.8 The Claimant's marriage to the second Defendant broke down and they divorced as a consequence
of
swinging and/or wife-swapping".
- Miss Page QC for the first Defendant points out that this is the first case to come before the court by way
of
the
offer of amends
jurisdiction under the 1996 Act in which the Claimant has not been readily identifiable to most readers, and thus can only establish a cause
of
action by pleading and proving a reference innuendo. What is more, it is also the first case in which the court has been invited to apply the principle in Burstein v Times Newspapers Ltd [2001] 1 WLR 57, CA, in the course
of
fixing an award
of
compensation. There is no doubt that it does apply in such cases, since the court has to apply exactly the same principles as govern an award
of libel
damages at a conventional trial or assessment. As I noted in Abu v MGN Ltd [2003] 1 WLR 2201 at [18]:
"I do not need here to explore the implications
of
that decision in any detail. Suffice it to say that, in so far as it may in any way have changed or developed the law in relation to what is relevant to the assessment
of libel
damages, it will be equally effective in any assessment
of
compensation under section 3(5). Parliament rejected the Neill Committee's recommendation for the abrogation
of
the so-called rule in Scott v Sampson (1882) 8 QBD 491, just as earlier it had rejected similar recommendations by the Porter Committee (Report
of
the Committee on the Law
of
Defamation (Cmd 7536)) in 1948 and the Faulks Committee (Report
of
the Committee on Defamation (Cmnd 5909)) in 1975. Thus it would appear still to be the law, subject always to the matters addressed in Burstein's case, that a defendant cannot pray in aid purely for the mitigation
of
damages specific aspects
of
the Claimant's behaviour (as opposed to matters alleged by way
of
general bad reputation)".
- In Burstein at [40] May LJ warned that:
"It will, generally speaking, normally be both unfair and irrelevant if a claimant complaining
of
a specific defamatory publication is subjected to a roving inquiry into aspects
of
his or her life unconnected with the subject matter
of
the defamatory publication".
It would follow that such an inquiry would also be inappropriate on an assessment under section 3(5). On the other hand, as I observed in Abu at [19]:
"It has to be recognised, however, that 'directly relevant background context', properly confined, would be admissible in accordance with the Court
of
Appeal's reasoning.
Of
course, it may not always be easy to draw the line but the principle will have to be applied".
- The tension to which I there referred arises in this case. Although there was at an earlier stage in the proceedings an intention to rely upon "general bad reputation" on Mr Turner's part, and notice was so given, this was subsequently withdrawn. The current position is that Miss Page wishes to rely upon certain admitted or unchallenged facts about Mr Turner and his conduct in relation to his former wife by way
of
"directly relevant background context". Mr Crystal, on his behalf, has made it clear that he does not accept that those matters can properly be characterised as "context" primarily, as I understand it, for the reason that they were not in any sense causative
of
the publication
of
the defamatory words in the article. He submits that, from the Burstein decision as a whole, it is clear that this is a necessary precondition for the admission
of
background context. I shall have to consider these arguments shortly but, first, it is necessary to say a little more about the history
of
the proceedings.
- Mr Turner launched his complaint two days after publication in a letter to the editor, which he introduced with these words:
"Although I am not a reader
of
your newspaper I was given a copy
of
the article by my cleaning lady on Monday morning, 16 February 2004 and was thereby forewarned
of
the inevitable reaction
of
some
of
my staff thereby avoiding the severe embarrassment and total humiliation which I would otherwise have suffered.
Within that article you feature a photograph
of
my ex-wife Arisara Turner and a story line, which makes a number
of
unsavoury and sordid allegations about our marriage and married life, which are factually untrue and which I find wholly abhorrent and deeply upsetting.
I am frankly appalled that you should have carried a story about my private life without first approaching me, particularly when the allegations made are
of
such a personal and offensive nature
"
- There was an unfortunate hiatus during which his complaint appears to have been ignored or, as Mr Crystal put it, treated with contempt. It was necessary for another copy
of
the same letter to be sent. Still there was no response and Mr Turner next had resort to the Press Complaints Commission. Eventually, after a further chasing letter on 25th March 2004, there was a response from Mr Crone, the legal manager, dated 26th March, in which he apologised and acknowledged receipt
of
the earlier correspondence. Following inquiries, he wrote further to Mr Turner
of
5th April, stating:
"Your former wife maintains that she has told the truth. Several other people to whom we have spoken lend support to her account".
Mr Crystal rhetorically inquired who these "other people" were. He invited the inference that there were no such people, and that this was simply a further example
of
a powerful newspaper group giving a relatively unknown complainant the brush off. At all events, the claim form was issued on 13th April 2004 and solicitors gave notice
of
acting on Mr Turner's behalf on 23rd April.
- On 18th June 2004 an unqualified
offer of amends
was made by Farrer & Co on behalf
of
the first Defendant. It would naturally follow that it was no longer being maintained that the allegations complained
of
were true. In the course
of
that letter, however, notice was given
of
"further matters relied upon". The significance
of
the date
of
the
offer
is simply that it was when the defence fell due for service. That was therefore the last opportunity permitted under the statute to take advantage
of
this regime.
- The most significant aspect
of
the "further matters relied upon" was a plea
of
mitigation based on Burstein which accompanied the letter and which ran to some 28 paragraphs settled by counsel. There is no doubt that it would have been a startling document for Mr Turner to receive. He relies upon it as aggravating the hurt to his feelings but, with appropriate sensitivity, neither counsel mentioned its contents in open court during the assessment hearing, since it has subsequently been withdrawn save in certain limited respects, which have been more narrowly defined. For these reasons, it would not be right for me to refer to the contents
of
the document either. It has remained confidential. I shall have to do my best to take it into account, and to make clear how I have done so, without going into its detailed contents.
- The significance
of
these matters was addressed by counsel from opposite ends
of
the spectrum. Miss Page submitted that, once an unqualified
offer of amends
has been made and the claimant therefore knows that he is to receive an apology and compensation, it should not be held against a defendant if steps are taken for the purpose
of
arriving at fair compensation by way
of
introducing "relevant background context", even though it might reflect adversely on the claimant. In support
of
this argument she prayed in aid certain passages
of
the judgment
of
May LJ in Nail v News Group Newspapers Ltd [2004] EWCA Civ 1708, [2005] 1 All ER 1040 at [45]:
"I should perhaps also add that a defendant who takes a judicial determination
of
compensation to the conclusion
of
a contested hearing does not by that fact alone aggravate the damage. [Counsel] did not submit that this should be seen as aggravation. The defendant is simply exercising the statutory right to have compensation determined by the court when, for whatever reason, it cannot be agreed. This is in contrast with some defendants who unsuccessfully contest full
libel
proceedings with, for instance, a plea
of
justification".
- Mr Crystal, by contrast, submitted that here there are indeed certain features which should be taken into account by way
of
aggravation. He referred to words
of
mine in the Nail case at first instance: [2004] EWHC 647, [2004] EMLR 20 at [35]-[40]. He had these passages particularly in mind:
"The
offer of amends
regime provides, as it was supposed to, a process
of
conciliation. It is fundamentally important that when an
offer
has been made, and accepted, any claimant knows from that point on that he has effectively 'won'. He is to receive compensation and apology or correction. In any proceedings which have to taken place to resolve outstanding issues, there is unlikely to be any attack upon his character. The very adoption
of
the procedure has therefore a major deflationary effect upon the appropriate level
of
compensation. This is for two reasons. From the defendant's perspective he is behaving reasonably. He puts his hands up, and accepts that he has to make
amends
for his wrong doing. As to the claimant, the stress
of
litigation has from that moment at least been significantly reduced.
Whereas juries used to compensate for the impact
of
the
libel
'down to the moment
of
the verdict', once an
offer of amends
has been accepted the impact
of
the
libel
upon the claimant's feelings will have greatly diminished and, as soon as the apology has been published, it is also hoped that reputation will be to a large extent restored. It is naturally true that if a defendant or his lawyers thereafter should behave irresponsibly, or try to drag in material to 'justify by the back door', that will be an aggravating factor. On the whole, however, once a defendant has decided to go down this route, it would make sense to adopt a conciliatory approach and work towards genuine compromise over matters such as the terms
of
an apology or the level
of
compensation.
If [media defendants] do not feel confident
of
getting a 'healthy discount' for adopting what is, in effect, a conciliation process, then I suspect (although [counsel] did not put it in this way) that there may a return to the tactic (sometimes encountered on the part
of
media defendants in the old days)
of
using their considerable resources to complicate and prolong litigation with a view to discouraging less wealthy litigants".
(emphasis added)
- Mr Crystal submits that the first Defendant's conduct in this case does not fit comfortably within that template. It is his case that the first Defendant should not receive any "discount", let alone a healthy one. Indeed, its conduct should be taken to aggravate the injury to his client's feelings and thus increase the damages, since:
i) there has, in effect, been an "attack upon his character";
ii) the first Defendant has not been "behaving reasonably";
iii) the first Defendant and/or its lawyers have behaved "irresponsibly" and dragged in material to "justify by the back door";
iv) the first Defendant has not been trying genuinely to implement a conciliation process with Mr Turner but, instead, has been attempting to "see him off";
v) the first Defendant has employed the tactic
of
using its "considerable resources to complicate and prolong litigation with a view to discouraging less wealthy litigants".
- It is necessary in these cases always to have in mind that there are two sides to the coin and to take them both into account. A particular step taken by a defendant in preparation for a section 3(5) hearing may sometimes give a claimant cause for concern or increase the hurt to his feelings, but it does not necessarily follow that the defendant is behaving unreasonably or resorting to impermissible tactics. Material which is relevant to mitigate the amount
of
damages or compensation may very well reflect on the claimant's character. Provided it falls within the ambit
of
what the law permits, and it has been notified at least in general terms to the claimant before he takes his decision to accept the
offer of amends
, its introduction should not automatically be held against the defendant. Fairness requires that a defendant should not be called upon to pay compensation which is unmerited or to vindicate a claimant on a false basis.
- The important question, therefore, is whether or not the material which has been the subject
of
Mr Crystal's strictures is admissible on the quantification issue. The effect
of
the Court
of
Appeal's decision in Burstein was to ease the strict confines
of
the rule in Scott v Sampson and to render admissible, in some circumstances, evidence
of
specific facts (hitherto only considered legitimate for the purposes
of
a plea
of
justification). As Miss Page recognised in the course
of
argument, this is a difficult area, and especially so in the light
of
the decision
of
the legislature in 1996 to reject the Neill Committee recommendation which had found its way into a draft clause 13
of
the Defamation Bill. This was referred to in Burstein at [54] by Sir Christopher Slade, who set out its terms:
(1) In defamation proceedings the plaintiff is not entitled to damages for injury to his reputation beyond what he would be entitled to if all facts affecting or liable to affect his reputation (at the time that damages fall to be assessed), in relation to the sector
of
his life to which the defamatory statement relates, were generally known.
(2) The defendant may, accordingly, in mitigation
of
damages, lead evidence not only as to the plaintiff's general reputation at that time but also as to specific facts which if they were then generally known would affect the plaintiff's reputation in relation to the relevant sector
of
his life.
Notwithstanding the rejection
of
this clause, the Court
of
Appeal felt able in Burstein to introduce more flexibility by resort to considerations
of
"case management and justice": see e.g. [41] and [58]. As May LJ expounded the principle at [42]:
"For practical purposes, every publication has a contextual background, even if the publication is substantially untrue. In addition, the evidence which Scott v Sampson excludes is particular evidence
of
general reputation, character or disposition which is not directly connected with the subject matter
of
the defamatory publication. It does not exclude evidence
of
directly relevant background context. To the extent that evidence
of
this kind can also be characterised as evidence
of
the claimant's reputation, it is admissible because it is directly relevant to the damage which he claims has been caused by the defamatory publication".
It therefore becomes critical to focus upon what, in any given case, can be characterised as "directly relevant background context". Having regard to the fact that the draft clause 13 was not enacted in 1996, it is reasonable to assume that this concept must be narrower than the proposed statutory wording (i.e. "all facts affecting or liable to affect his reputation
in relation to the sector
of
his life to which the defamatory statement relates").
- I must now therefore turn to the three categories
of
material which were admitted in evidence, and as to which Miss Page submits (a) that they would go significantly to reduce the amount
of
the compensation to which the Claimant is entitled, and (b) that her client's reliance upon them (even though it may incidentally cause embarrassment or hurt to he Claimant) should not be held against it. Mr Crystal argues the reverse, since he says that the matters were only introduced "to rough him up".
- The three topics were notified to the Claimant in a document served on 22nd February 2005 as follows:
i) The involvement
of
the Claimant and second Defendant in fetish functions at a club in Coventry called Ceasars, which advertises itself as "the Midlands leading fetish, BDSM and swingers club". Miss Page tells me that BDSM stands for "Bondage in Discipline, Dominance and Submission, Sadism and Masochism".
ii) The very active career
of
the second Defendant as a model posing for what Miss Page described as "open leg shots" and "girl on girl" poses. The Claimant encouraged her in this career, from which she made a modest albeit tax free income, and acted as her agent.
iii) After the Claimant and the second Defendant initially split up, in 2001, she was "slagged off" by the Claimant in The Sun newspaper under the title "Page 3 Thai girl wed me just to get into Britain" and he called for her deportation.
- I shall need to address these topics in turn but, before I do so, I should also consider when it was that the first Defendant first notified the Claimant
of
its intention to pray those factors in aid on quantum. I indicated in Abu v MGN [2003] 1 WLR 2201 at [9]- [10] that neither party should be able to take the other by surprise, by the introduction
of
new material, after an
offer of amends
has been accepted:
"9 It would only accord with most people's sense
of
justice if the
offer of amends
is construed as relating to the complaint as notified. Such an approach would also accord with the modern 'cards on the table' approach to litigation generally and, more specifically, with the thinking behind the Defamation Pre- Action Protocol.
10 By the same token, if an
offer of amends
has been made, whether on a qualified or unqualified basis within the meaning
of
section 2(2), the complainant would not doubt like to know, before accepting it, if his reputation is going to be further undermined during the court process.
"
- Miss Page emphasised that all the three factors identified above were indeed notified to the Claimant prior to the acceptance
of
the
offer of amends
, in that they were included at paragraphs 16, 24 and 26
of
the original Burstein plea (the contents
of
which generally have been regard as verboten for the purposes
of
the hearing before me). I am thus quite satisfied that the Claimant was so informed and that he would have been able to anticipate that the first Defendant intended to raise such material as background context to the publication, as the notice
of
22nd February reaffirmed. One test formulated by May LJ in Burstein at [41] was whether the decision
of
the judge at first instance, to keep the relevant material away from the jury, was "to put them in blinkers".
- It is accepted,
of
course, as it has to be on an application
of
this kind, that the sting
of
the words complained
of
was false and defamatory. Although there are a number
of
variations pleaded, which I have set out above, it seems to me to be clear that the nub
of
Mr Turner's complaint is to be found in the words "But he kept pressuring me to have sex with the men too, and that I didn't like
". Although Mr Turner in the course
of
his evidence attempted to equate this allegation with his having participated in "rape", that was not how he put it in his particulars
of
claim or in his letter before action. For the reasons outlined in Abu therefore, that it is not a meaning he is permitted to pursue at this stage. It is, in any event, an unrealistic meaning in view
of
the headline to the effect that Mrs Turner claimed to have been "turned on". The sting
of
the
libel
, which the first Defendant is not permitted to "justify by the back door", is that
of
pressuring the second Defendant into consenting reluctantly to have sex with the "well-to-do people".
- As will emerge shortly, although the Claimant had no qualms about encouraging his wife to pose for explicit photographs displaying her genitalia and indulging in various sexual activities with women, he drew the line at "boy on girl" because that he regarded as pornography. It is against that background that the decision has to be made whether the three subjects I have described are "directly relevant background context" to the allegation
of
pressurising her to have sex with men; or, in other words, whether I should be assessing the compensation for that allegation in "blinkers" if I were to exclude them from consideration. Since the allegation in the newspaper concerned the circumstances in which the Claimant and his wife attended the Coventry club and the supposed pressure on her to indulge in sexual activities with other people, I am quite satisfied that the first two topics identified at [21] above, at least, are relevant background context. Moreover, since the Claimant complains
of
his distress at the infringement by the first Defendant
of
his privacy, I am equally satisfied that his self-invited exposure in the tabloid newspapers in 2001 is relevant to the extent with which he values that privacy and would, or would not, suffer hurt feelings by tabloid exposure on the subject
of
his marital relations. I am not persuaded that a defendant need always establish a direct causal link between the "background context" and the fact
of
publication: that would be likely to lead to over-elaborate analysis in some cases, and detract from the flexibility which the Court
of
Appeal in the Burstein case clearly intended.
- I must now turn to the evidence that was before me on those three issues. On some five occasions Mr and Mrs Turner attended Caesar's Club in Coventry which, I understand, is situated some 92 miles from Sheffield. They went to the Friday fetish nights for which there was apparently a dress code. The Claimant, eschewing leather or anything more exotic, wore a sober black shirt and trousers. His wife wore a white top and short skirt. He agreed with Miss Page that this was aimed at a "St. Trinian's schoolgirl" effect.
- There was evidence before the court from a Miss Irena Barker who attended one
of
the advertised fetish nights on 8th October 2004, at the request
of
the The News
of
the World, and gave an account
of
the goings on. It seems that most men wore black leather trousers, although two opted for latex dresses and high heels. Various demonstrations were laid on; for example, four middle-aged men were poking at female "demonstrators" with bottle brushes and oven mitts. Another popular activity seemed to involve women having their genitals clamped with various metal clips. Bottoms were on
offer
for tickling, stroking or spanking with "small feather dusters, whips, sticks and other small beating implements". Some people also entered suffocation sacks from which the air was pumped out. Miss Barker left at about 1.30 am.
- These events were,
of
course, some years after Mr and Mrs Turner used to attend. He thought the club must have changed hands as it appeared to be offering more sophisticated attractions than in his day. When he attended, it was "on its last legs". He did remember bottoms being spanked, but nothing as dramatic as Miss Barker's experiences. He took no particular notice
of
the bottoms, however, and treated it really as a "fancy dress" party. His wife, he said, was fascinated by the fetish scene and would make drawings
of
what people were wearing. It was "just something to do on a Friday night". They apparently "made a night
of
it", having a curry before they set out and enjoying breakfast on the M1 on the way back. There was no wife swapping; nor did Mr Turner encourage his wife to have sex with other men.
- The subject seems to have come into this case originally via the draft pleading the Claimant sent to Farrer & Co, solicitors for the first Defendant, on 25th March
of
last year. Miss Page submits that he must therefore himself have, correctly, identified his membership
of
and attendance at the Caesar's Club for fetish nights as being relevant background context. She submits that he would be correspondingly less likely to suffer embarrassment at the allegations
of
"swinging" than someone who had never attended such a club. That is as far as it goes.
- The next subject is that
of
the explicit photographs. As I have said, Mr Turner acted as his wife's representative in arranging for photographic sessions. Quite why she was doing it was unclear. His evidence seemed to be ambivalent, as to whether she was doing it because she enjoyed it or purely to make money. But there is evidence on that subject from two other witnesses, to which I shall refer shortly. It seems that Mrs Turner was something
of
a "trooper" in this enterprise. She appeared on an X-rated Adult Channel, and in magazines such as Men Only, Men's World, Mayfair, For Men, International Park Lane, and Asian Babes. Thousands
of
photographs were taken and some video material,
of
which I was provided with a selection in evidence.
- Mrs Turner was happy, time and again, to go on displaying her perineum from every possible angle. She pulled her labia about to give the viewer opportunities for quasigynaecological inspection. In many shots she had a ring inserted at the upper end
of
her labia. This was no doubt to sparkle things up a bit and also perhaps to give her better purchase. She is shown, for example, in some photographs using it like a ringpull. There were also photographs
of
other women, with whom she was rolling about naked. They were kissing each other at one end or the other. My attention was drawn to certain specific pictures from what was described as "an assorted selection", in one
of
which Mrs Turner was using her tongue on the clitoris
of
an unidentified third party (said by Miss Page to be "a total stranger").
- According to the Claimant, Mrs Turner enjoyed her work: there was no question
of
his "pressuring" her to do it. She was keen to have a measure
of
independence by making some spending money for herself (free
of
tax).
- A somewhat different picture emerged from the evidence
of
one
of
her regular photographers who gave evidence before the court. He was Mr Jeff Kaine, a very experienced (and specialist) professional photographer with his own studio. He was the person who took the "assorted selection" to which I have referred. Originally, in 1999, Mr Kaine was rung up by the Claimant who made an appointment to bring his wife over, because she was "keen to break into modelling". He said he wanted shots
of
her "in compromising positions, preferably with other women".
- He only came to London for the introductory shoot, but thereafter kept in touch with Mr Kaine by telephone. As Mr Kaine said in paragraph 5
of
his witness statement:
"I agreed to the above arrangement with David Turner and Arisara came to my studio about a dozen or so times during the course
of
about a year. To the best
of
my recollection, apart from the first shoot when I met him and Arisara, David Turner never came down from Sheffield with Arisara to my studio for the other shoots but he was always on the telephone giving me instructions as to the sort
of
photographs he wanted me to take
of
Arisara. On every occasion, the photographs were to be
of
Arisara semi or wholly undressed and
of
a 'top shelf' and adult nature. On one occasion I remember how David Turner telephoned me and said that his wife wanted to be photographed with another woman in a 'lesbian display'. I specifically remember how he described Arisara as 'gagging for it'. I never really took 'instructions' from Arisara herself (although I was careful to ensure that she never was doing anything that she did not want to). It was always David Turner who told me what sort
of
photographs (in general terms 'sexy' / 'adult' / 'top shelf') were to be taken. He would usually say to me that the photographs were to be 'the stronger the better'. He also said that if Arisara looked nervous or unwilling to perform then I was to 'dominate' her and force her to pose in an explicit way. I never would do such a thing as it is entirely unprofessional and against my nature. I remember how Arisara told me in fact that she did not mind the photo sessions because she was just doing it to please her husband".
- Mr Kaine added that the Claimant would always expect 20 to 30 photographs from every shoot to be sent to him presumably for his personal records. Mrs Turner signed a separate release form each and every time Mr Kaine sold photographs to a particular magazine. This was unusual, but it was an arrangement stipulated by Mr Turner so that he could keep track
of
where she was appearing. 36. As time went on, Mr Kaine said that there were problems caused by Mr Turner's constantly telephoning publishers to complain over their choice
of
shots in the magazine. One publisher apparently so tired
of
Mr Turner ringing him up that he sent a batch
of
photographs back to Mr Kaine, saying that he never wanted to deal with him again if Mr and Mrs Turner were involved.
- Mr Kaine also made video film
of
Mrs Turner and another woman, originally with the intention
of
using it for his own web site as a "pay to view" item. I have seen a selection
of
stills from that video. It was called "Wan and Rachelle" ("Wan" being one
of
Mrs Turner's professional noms de guerre). It shows the usual activities and, in particular, digital penetration and oral sex. Mr Kaine said it was "arranged under the express instructions
of
David Turner". Although Mr Turner said that Mr Kaine was "mistaken" in that respect, most
of
his evidence was not challenged in crossexamination.
- Another witness was Phil Green, a legal executive from Lincolnshire who has a modelling agency called Supermodel Ltd. He too was contacted by Mr Turner because his wife was keen to work as a "glamour model". Mr Green agreed to act as her agent and took a percentage (except in cases where Mr Turner had arranged matters direct, as he did with Jeff Kaine). Mr Green only dealt with a certain level
of
material, which he characterised as " 'Loaded' and 'FHM' and nothing stronger". But Mr Turner pressed him to arrange for "much more explicit poses for publication in more hard-core pornographic or 'top shelf' magazines".
- As with Mr Kaine, the financial arrangements stipulated by Mr Turner were unusual. Both witnesses explained that the industry-wide practice was for the model concerned to be paid a fixed fee for each session, but Mr Turner wanted the revenues to be shared whenever her photograph was syndicated to a magazine. Relations broke down because Mr Turner insisted on negotiating his own deals with photographers and "he had a liking for Arisara to be photographed for the more explicit and erotic magazines". She only remained on Mr Green's books for about fifteen months. He seems to have got on reasonably well with Mrs Turner and told me:
"Some time after I had finished working as Arisara's agent, I cannot now remember exactly when, Arisara telephoned me out
of
the blue to say that she had left her husband, David Turner and was travelling over to the agency. I remembered Arisara and, in particular, how when I had first met her I had found her to be extremely shy and someone who appeared to be completely under the control
of
her husband. I particularly remember how she was a lot younger than her husband and I was slightly surprised by her telling me that she had now left him. She said to me that I was effectively one
of
the very few people that she knew other than her husband and she asked if I could help. I felt some responsibility towards Arisara having previously acted as her agent and she came to stay at my house for a few days after she had left her husband."
Again, this evidence was not challenged in any material respect.
- Miss Page relies on this category
of
evidence as relevant to the quantum
of
compensation partly because a claimant's conduct is legitimately to be taken into account: see e.g. Kelly v Sherlock (1866) LR 1 QB 686. It is partly also because (she submits) Mr Turner is less likely to have been upset by allegations
of
dominant and exploitative behaviour than the average husband. As Miss Page put it, the assessment
of
compensation requires account to be taken
of
the "open and liberal manner" in which they conducted themselves and
of
their "modern" approach to such matters.
- The third aspect
of
Mr Turner's behaviour she wished to highlight concerned the press publicity at his instigation following shortly after the breakdown
of
the marriage.
- An article appeared in the Mail on Sunday for 18th March 2001 by Alison Gordon, "Social Affairs Editor". It consisted largely
of
quotations from Mr Turner and, to a lesser extent, from Mrs Turner. It was headed "Businessman's wife runs off after row over her modelling career" and "My Page 3 Thai bride fleeced me
of
£33,000". There is a photograph
of
Mrs Turner posing on a bed, although on this occasion wearing her knickers, and underneath the caption states "Arisara won many admirers as a glamour model but husband David Turner, right, disapproved". A much smaller photograph
of
Mr Turner appears in the bottom right hand corner. The text is as follows:
"HE said he only wanted love but a wealthy businessman who married a Thai girl was counting the cost last night.
David Turner was enchanted with his beautiful young bride and she in turn appeared to be very happy with her new life in Britain.
But eight months after being granted a visa to stay here as long as she liked, Arisara who found fame as a glamour model has vanished, taking luxury items worth £33,000 with her.
The break-up came after 50 year-old Mr Turner pleaded with Arisara, 26, to give up the career which had seen her pose naked for The Sun's Page 3, in pornographic magazines and on the X-rated Adult Channel.
She refused and has now left their penthouse home in Sheffield.
Mr Turner, 50, said yesterday: 'I've been totally ripped off. I have been very hurt and shocked. I had grown to love her and I wanted to have a child with her and for us to spend the rest
of
our lives together.
There had been friction because I wanted her to pack in her career but she wanted her independence'.
Mr Turner, who has three children by three previous marriages, had deliberately sought out a Thai bride.
He said: 'I thought a Thai woman would be more loving and caring and faithful than a Western woman.'
Among the possessions allegedly stolen by Arisara were a gold Corum watch valued at £18,000, a gold Rolex worth £9,300, and a £1,000 laptop computer. Police are investigating.
The couple first met in England in 1998 after Mr Turner responded to an advertisement in The Sunday Times by Kentbased Siam Introductions. Arisara was here on a six-month visa, planning to marry an army officer, but their relationship collapsed. Within days she agreed to move in with Mr Turner and they married in a Sheffield register office in February 1999, just days after Mr Turner's third divorce came through.
Seven months later they contacted a photographer to take some glamour pictures 'as a bit
of
fun'. It was the start
of
a flourishing modelling career and Arisara posed as Susie
of
Sheffield on Page 3 and went on to appear in magazines and erotic books.
After she fled three weeks ago, Mr Turner tracked her down at Heathrow as she prepared to fly back to Bangkok. But they argued and she disappeared. Since then Mr Turner has become increasingly suspicious that she may already have been married.
Last night The Mail On Sunday found Arisara at the home
of
a friend. She admitted taking the computer and running up a large bill for cosmetics on Mr Turner's store card, but denied taking watches and cash.
She said: 'He abused me. He tried to treat me like a slave, I had to cook exactly what he wanted to eat and if I did anything wrong he punished me.'
Mr Turner denies the allegations."
It is obvious that the version presented to the public on that occasion is hardly consistent with the unchallenged evidence
of
Mr Kaine and Mr Green, but Miss Page's primary point on the quantification
of
compensation was that Mr Turner seemed content on that occasion to portray himself as a "loser" (one
of
his own meanings).
- A few days later, on 21st March, most
of
a page in The Sun was devoted to the same topic under the heading "PAGE 3 THAI GIRL WED ME JUST TO GET INTO BRITAIN: Boss's fury at runaway bride". On this occasion he called for her deportation:
"A WEALTHY tycoon told yesterday how a Page Three model from Thailand married him then ran off after getting a visa to stay in Britain.
Company director David Turner angrily claimed that his stunning bride Arisara only wed him to escape a life
of
poverty in Bangkok.
Mr Turner, 50, has complained to immigration authorities that the 26-year-old exotic beauty "used" him so she could live permanently in this country.
He said that she cleared their penthouse flat
of
all her belongings and vanished then racked up a £1,000 bill for cosmetics.
Mr Turner, who had been married three times before, fell for Arisara after meeting her through an introduction agency.
They tied the knot on the day his third divorce came through in 1999 and she took up modelling.
Soon she appeared in Playboy and The Sun, under the English name Susie.
But the marriage crumbled after Arisara was granted an indefinite visa to stay in Britain.
Mr Turner said she packed all her things while he was out and fled their flat in Sheffield without any explanation.
Later the same day, he said she ran up the £1,000 bill on his account at a department store.
Mr Turner who wants Arisara sent home said: 'I now realise this was probably a marriage
of
convenience I feel used and hurt. She was everything I ever dreamed
of
in a woman.
I thought she loved me as much as I loved her, but now I can see it was all one-way traffic.
After she got the visa to stay in Britain she seemed to change. I wanted her to give up modelling so we could have a child, but she wasn't keen. The Immigration Service should report her'. But pals
of
Arisara now living in a hostel hit back, claiming she was treated like a slave
Her agent Phil Green said: 'Whatever David says it wasn't a marriage
of
convenience.
She is a timid girl and was totally dominated. She never set out to deceive anyone'.
The Immigration Service said 'We are looking into the matter'".
- Alongside the article appears a page length photograph
of
Mrs Turner, topless. There are two other photographs, one
of
Mr Turner with a caption describing him as "Used", and what purports to be "David's only picture
of
him and Arisara". He said in evidence that he was "mad at the time" and wanted revenge, but later they resumed cohabitation.
- I must now address the assessment
of
compensation having regard to all these circumstances relating to the specific case, as well as to the general principles to be applied in "
offer of amends
" cases, as they have been expounded in the recent cases and, in particular, in Abu v MGN Ltd and Nail v News Group Newspapers Ltd (cited above). The first stage is to identify the figure I should award at the conclusion
of
a hypothetical trial in which the defendant had done nothing to aggravate the hurt to the claimant's feelings (e.g. by pleading justification or by insulting cross-examination) and nothing to mitigate (e.g. by the publication
of
an apology). At the second stage, I must consider to what extent, if at all, that figure should be discounted to give effect to any mitigating factors
of
which this Defendant is entitled to take advantage.
- Most relevant is the
offer of amends
itself, made on 18th June 2004, and the apology published in the newspaper on 15th August. Naturally, in the course
of
carrying out the exercise, I must also weigh in the scales any conduct which, despite the
offer of amends
, has had the effect
of
aggravating matters. This could be relevant to reducing the size
of
the "discount" or, in an extreme case, I suppose it might even, at least theoretically, make it appropriate to allow no discount at all.
- It is clear from the Court
of
Appeal judgment in Nail at [47] that there are no hard and fast rules as to the size
of
the reduction. It will be left to the judge to make the assessment on the particular facts. Cases vary so much.
- The matters I have been considering so far, in the light
of
the evidence introduced by Miss Page, do not go to mitigation in the strict sense, so as to be taken into account at stage two. They are simply part
of
the background context against which I have to make a judgment as to the starting figure at stage one.
- I must proceed, in a case where the
offer of amends
is "unqualified", on the basis
of
the meaning or meanings the Claimant has put forward prior to the
offer
being made. I have set out Mr Turner's meanings at [7] above. It is immediately apparent that they are not at the highest level
of
gravity. The allegations may have been embarrassing and intrusive, but there is no pleaded meaning which suggests criminality or dishonesty on his part. It is relevant also to have in mind the factors sometimes encountered in defamatory publications which were identified by the Court
of
Appeal in John v MGN Ltd [1997] QB 586, 607:
"In assessing the appropriate damages for injury to reputation the most important factor is 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".
It is fair to say in the instant case that these factors do not appear to be significantly engaged.
- The impact
of
the News
of
the World article on Mr Turner's reputation appeared to be relatively minor. According to his evidence, it led those people he knew and who recognised the photographs
of
Mrs Turner to smile or giggle rather than to revile him or to shun or avoid him socially. For example, he said that his secretary "had a great big smile on her face and was obviously amused by this whole sorry state
of
affairs". Moreover, it is quite apparent from the evidence introduced that none
of
the witnesses actually believed the defamatory sting
of
the allegations. Naturally, the relatively few readers who were able to identify him were people known to him socially or from the working environment. They did not apparently think it fitted the Mr Turner they knew. Correspondingly, therefore, the need for vindication
of
his reputation is
of
less significance.
- I am well aware,
of
course, that injury to reputation and the need for vindication are not the only considerations. I must also compensate for hurt feelings, distress and embarrassment. As in the Nail case, that is the most important element in the equation here. Mr Turner gave evidence about the impact
of
the article upon him. In particular, he told me
of
his anxiety about breaking the news
of
the publication to his then fiancιe (also, as it happens, from Thailand). I need to take that into account, albeit against "the relevant background context"
of
the three categories
of
evidence Miss Page has introduced. It is quite apparent, for example, from the articles in The Sun and The Mail on Sunday in 2001 that Mr Turner is far less sensitive to intrusive publications about his marital circumstances, or to being portrayed as a "loser", than would be the average claimant.
- Nowadays, since the decision in John v MGN Limited, it is recognised that the court can have regard to the level
of
general damages in the quite different context
of
personal injury cases. That is not because there is a direct comparison to be made, but rather so as to make sure that
libel
awards are not disproportionately large when set alongside such figures: see e.g. the judgment
of
May LJ in Nail v News Group Newspapers Ltd at [37]. It is simply one aspect
of
keeping in mind the value
of
money and the need to have a sense
of
proportion. There is no point in referring for present purposes to levels
of
awards for particular categories
of
injury, but it is reasonable to suppose that comparisons
of
this kind have played a part in the general moderation
of libel
damages over the years since the John case was determined. It is in accordance with that current scale
of
values that I must measure the appropriate level
of
compensation.
- Bearing all these considerations in mind, at the first stage
of
the assessment exercise, I have decided that the right starting point is £15,000. I now turn to consider the question
of
"discount". In Nail, as it happens concerning the same Defendant, I selected a 50% reduction in the light
of
the
offer of amends
and the circumstances in which it came to be made. That will not always be appropriate,
of
course, but I thought it right on those particular facts, and especially because there had been no significant derogation from the appropriate spirit
of
conciliation through aggravating conduct.
- As I have already made clear, Mr Crystal contends on Mr Turner's behalf that this is a very different case. He relies particularly on what I described as the "startling" first version
of
the Burstein plea. It is important to recall, however, that this was not conjured out
of
thin air, as Mr Turner apparently suspected, as a dishonest attempt to "rough him up". During the hearing it was made clear that it had been based on a statement from Mrs Turner. Mr Crystal complained that he had never been shown it, and he was thus not in a position at that stage to accept that it had been put forward in good faith. He was therefore given a copy to consider. I should make it clear that I was not given a copy and this has not, therefore, affected my mind in making the assessment. I have also ignored, as I was asked to do, the content
of
the original Burstein plea itself. Once a copy
of
the statement was supplied to the Claimant's advisers, no more was heard
of
it. I should therefore proceed on the basis that the Burstein plea was put forward in the first place in good faith. (I am told that Mrs Turner had subsequently moved from her address and the first Defendant's advisers were unable to make contact.)
- As I have suggested earlier, given that the Burstein principle applies in s. 3(5) assessment cases, it is almost inevitable that sometimes the steps which a defendant takes, albeit quite legitimately for the purposes
of
achieving a fair overall assessment, will add hurt to a claimant's feelings. That does not mean that the level
of
compensation goes up automatically. That would be to discourage defendants from seeking to deploy arguments based on Burstein or the more traditional mitigating factors. It would hamper settlements and undermine the utility
of
the "
offer of amends
" procedure. The primary question seems to me, in any given case, whether a claimant has behaved reasonably in raising any particular matters, rather than seeking to introduce irrelevant or scandalous matter to take impermissible advantage
of
the court's process. In the latter case, which in practice one imagines will be very rare, it would
of
course be right to reflect such aggravating conduct in quantifying the compensation. The test needs to be an objective one and cannot be solely determined by reference to the individual claimant's reaction.
- I have seen nothing in this case to persuade me that the first Defendant has acted improperly in the introduction
of
materials following its
offer of amends
, and I do not think it would be right to penalise them in that respect. Having said that, although the original Burstein plea was advanced in good faith, the first Defendant found itself unable to substantiate a significant part
of
the allegations in the absence
of
Mrs Turner. Its impact on the Claimant's feelings must, therefore, be taken into account as one factor tending to detract from the deflationary effect
of
making the
offer of amends
.
- There is criticism
of
the apology published on 15th August 2004. It had been the subject
of
negotiation and largely corresponded to what the Claimant wanted. Inevitably,
of
course, its publication drew his name to the attention
of
far more readers than the original article. It was published under the heading "DAVID TURNER APOLOGY" on page 36 in these terms:
"ON 15 February we published an article, Swingers And Losers, which wrongly stated that Arisara Turner was pressured by her then husband, David Turner, to take part in the swinging and wife-swapping scene, including pressuring her to have sex with other men.
We now accept that neither Mr Turner nor his then wife, Arisara Turner, were involved in swinging or wife-swapping and neither did Mr Turner pressurise his former wife to have sex with other men.
We apologise to Mr Turner for the error."
- No one could pretend that the apology was prominent, but it did at least accord in substance with what Mr Turner was entitled to expect and what he wanted. Indeed, the Claimant himself (in his allocation questionnaire) described it as "a suitable correction and apology". The principal criticism now is that it did not include words to the effect that the first Defendant had agreed to pay damages. A sum
of
compensation would be payable in accordance with the statutory procedure, but very few readers would be aware
of
that. The first Defendant took the approach that, since damages had not yet been agreed, it would not be appropriate to suggest the contrary. The only alternative would be to say something along the lines, "We will pay Mr Turner appropriate compensation in due course. If it cannot be agreed, the matter will be referred to a judge to resolve the dispute under s. 3(5)
of
the Defamation Act 1996". I cannot see that this would have improved the Claimant's position, and indeed it might have given the impression to some readers that he was haggling or being greedy. In these circumstances, I do not believe the omission should count against this Defendant.
- In this context
of
the first Defendant's treatment
of
his complaint, it seems to me that Mr Turner's best point is that he was ignored for some weeks and then told that The News
of
the World had no reason to think that the allegations were false. That is a different situation from that in which a defendant needs time to make inquiries to establish the merits
of
the claim, one way or another, which certainly should not work to his disadvantage: See e.g. Nail [2004] EWHC 647 (QB), [2004] EMLR 20 at [59]. The rather dismissive way in which the complaint was initially treated, and the assertion that the words were true, which appeared to be maintained from 8th April to 18th June 2004, are factors which in my judgment have some impact upon the "discount". It was also the case in Nail that justification was canvassed early on, but that was an aggravating factor which was said in the circumstances to be "short lived". Inevitably,
of
course, the initial delay here meant that the apology was published later than it needed to be (i.e. six months after publication). As I have already recognised, it was also rather tucked away and was likely to have been missed by many
of
the relevant readers. I have also mentioned the failure to make good the Burstein plea in its original form. For those reasons I consider that less credit (or "discount") should be given to the first Defendant than in the Nail case. Once the
offer
was made, however, there does not seem to be anything to justify a significant "penalty".
- In all the circumstances, I think that the right discount should be 40% in this case. I therefore assess the overall award
of
compensation at £9,000. That is intended to embrace not only the newspaper publication but also any "hits" there may have been on the relevant part
of the website.