|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Barron & Anor v Vines (Rev 1)  EWHC 1226 (QB) (01 June 2016)
Cite as:  EWHC 1226 (QB)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) SIR KEVIN BARRON MP
(2) RT HON JOHN HEALEY MP
|- and -
The Defendant in person
Hearing date 18 May 2016
Crown Copyright ©
Mr Justice Warby:
"[Kay Burley] It was particularly unimpressive that UKIP used the fourteen hundred kids that had been abused over sixteen years for party political favour and actually put a poster together saying "1,400 reasons not to vote Labour". Haven't those kids suffered enough? Was that really appropriate?
[Caven Vines] The kids have suffered enough and whether it was appropriate or not I mean they did appalling
[Kay Burley] Was it or not?
[Caven Vines] Well, I thought it was appropriate, yes. People need reminding. Those fourteen hundred kids had been abused and been let go by the Labour Council and the Labour MPs. They knew what were going off, most not Sarah, because she's only the new girl on the block. But certainly the other two, not telling me they did not know. In fact MacShane in his book has openly said so. So yes people need reminding. We cannot forget that they let the kids down and they're still letting them down. There's still no arrests, what's going on? Nothing has altered so we need to get in there and blow it open. This has got to be done.
[Kay Burley] I don't know if Dennis MacShane said that in his book, I'll take your word for it but I haven't read it.
[Kay Burley] How are you going to change things for the better?
[Caven Vines] We've got this CSE problem. We've got to help these girls. We've got to rid the streets of these perpetrators "
Judgment on meaning and liability
" In my judgment the ordinary reasonable viewer of Sky News who saw and heard the Defendant's interview will have understood him to be saying (1) that the claimants knew for years most of what was going on by way of large-scale sexual abuse of children in Rotherham, and let it go on despite such knowledge; (2) that they thereby let down the children; and (3) that they were still failing to ensure that the perpetrators were brought to justice. Applying the principles I have identified, there can in my opinion be no doubt that these meanings are defamatory."
54. The Defence contains nothing that could support a defence of truth to the first, factual defamatory meaning I have identified. The matters which the Defendant has put forward since the service of his Defence as supporting a defence of truth could not in my judgment begin to establish the substantial truth of that meaning. Mr Millar was justified in characterising the Defendant's criticisms of both Claimants as quite different in kind from the imputations conveyed by his words in the interview.
56. The Defendant has no need of an answer to the second meaning I have found, as it is one of which the Claimants do not complain. It does not seem to me, however, that it could be defended. The Defendant does not assert the existence of a sufficient factual foundation for that comment. As to my third meaning, that the Claimants were still failing to act, this is not materially different from the last part of the Claimants' meaning. It is essentially the suggestion for which the Defendant has apologised, and which he retracted, in paragraph 5 of his Defence. The Defendant has not sought to defend anything of that nature at the hearing of the applications.
57. In summary, therefore, the words complained of bore a defamatory factual meaning about both claimants which the Defendant says he did not intend to convey, which he does not seek to defend as true, and which in my judgment he plainly cannot defend as true on the basis of any facts that he has put forward. The words also conveyed a defamatory meaning which is or may be an expression of opinion about the claimants' alleged conduct, but is one of which the claimants do not complain. Thirdly, the words conveyed a defamatory opinion about the claimants' current conduct which the Defendant does not now seek to defend, but has withdrawn and apologised for. Thus far the case would appear to be one where the Defendant has no answer on liability even if he may have points to make in mitigation of damages."
Mr Vines' second thoughts
(1) In October 2015 he applied to Master Leslie for an order setting aside my judgment and order. He put forward a draft Amended Defence prepared by Counsel, advancing a public interest defence. That application was refused.
(2) In February 2016 Mr Vines made a similar application to Sir David Eady, this time asserting truth. Sir David dismissed the application, pointing out that the jurisdiction to re-hear a case which has been the subject of a final judgment is exercised only in exceptional circumstances, and that the proper route was to seek permission to appeal out of time:  EWHC 605 (QB) [13-17].
(3) Undeterred, Mr Vines made a third attempt to set aside judgment at the outset of this hearing. Without issuing an application notice, and relying on a witness statement served the previous Friday, 13 May, he asked me to dismiss the claim and to award him damages. I dismissed that application for much the same reasons as Sir David Eady had dismissed the previous one. I pointed out that I had no power to grant an extension of time for appealing, even if there was a basis for doing so. Only the appeal court has that power: CPR 52.6(1). The claim for damages was of course misconceived.
The Collins case
This assessment hearing
"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  compensate him for the damage to his reputation;  vindicate his good name; and  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. Although the plaintiff has been referred to as "he" all this of course applies to women just as much as men."
(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 , .
(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 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  1 WLR 1051) .
(4) It is often said that damages may be aggravated if the defendant acts maliciously. The harm for which compensation would be due in that event is injury to feelings.
(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, on some of which I will also elaborate below, include the following:a) "Directly relevant background context" within the meaning of Burstein v Times Newspapers Ltd  1 WLR 579 and subsequent authorities. This may qualify the rules at (5) above.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) An offer of amends pursuant to the Defamation Act 1996.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: Rantzen v Mirror Group Newspapers (1986) Ltd  QB 670. This limit is nowadays statutory, via the Human Rights Act 1998.
Misconduct and Burstein background
An offer of amends
The Collins speech
"32 that each of the three Rotherham MPs "knew many of the details of the scandalous child sexual exploitation that took place in Rotherham over a period of sixteen years, in the course of which an estimated 1,400 children were raped, beaten, plied with alcohol and drugs, and threatened with violence by men of Asian origin, yet deliberately chose not to intervene but to allow the abuse to continue."
33 that the MPs "acted in this way for motives of political correctness, political cowardice, or political selfishness", and that each "was thereby guilty of misconduct so grave that it was or should be criminal, as it aided and abetted the perpetrators and made the Claimants just as culpable as the perpetrators."
34. The first meaning represents the factual imputations I considered that the Defendant made in her speech. The other two meanings encapsulate what I considered to be expressions of opinion."
Gravity of the imputations
Authority and extent of publication
Identity of publishees
"Percolation" and social media
Mitigation and/or aggravation by conduct
Evidence of harm or the lack of it
Other aspects of Mr Vines' conduct of the action
Discussion and conclusions
The framework for my awards
"There could never be any precise, arithmetical formula to govern the assessment of general damages in defamation, but if such cases were routinely tried by judges sitting alone there would no doubt emerge a more or less coherent framework of awards which would, while recognising the particular features of particular cases, ensure that broadly comparable cases led to broadly comparable awards."
(1) A table of damages awards in Duncan & Neill on Defamation, 4th Edition, highlighting in particular Rantzen, where the libel was that the claimant, a well-known broadcaster, had protected a teacher she knew to be a child abuser. The Court of Appeal reduced the jury's 1993 award, but approved £110,000.
(2) C v MGN Ltd (above) in which the claimant, falsely accused of having been convicted in the 1970s of raping a 14 year-old girl, recovered £50,000 although he was not named in the article, few would have identified him as its subject, and the defendant had made a prompt offer of amends leading to a 50% discount.
(3) Appleyard v Wilby  EWHC 2770 (QB) where Bean J (as he then was) awarded £60,000 in respect of allegations in tweets and on a website that the Claimant police officer had befriended and protected a celebrity he knew to be a paedophile or rapist, misusing his position as a police officer to do so.
(1) The allegation in Rantzen was one of actively protecting a known child abuser, which is far more serious. Attention is drawn to the fact that the allegation had not affected Ms Rantzen's career, which had a deflationary effect on damages.
(2) In C v MGN also the allegation was far more serious, and created a real possibility that the claimant's other children might be placed in permanent foster care. It was naturally deeply distressing given that the reason for the article was that C was the father of "Baby P", who had been killed by others.
(3) Although Appleyard v Wilby involved a holder of public office the allegations were of knowing complicity in paedophilia and rape, actively engaging in police corruption and using indecent photographs of children, all of which are clearly significantly more serious than the allegations in issue here.
(1) Picardo v Sindicato Colectivo de Functionarions Publicos Manos Limpias & Miguel Bernard Remon 2013-P-160, where a senior politician, a minister, was directly accused of a variety of criminal offences. The minister was a former barrister, the allegations were widely published in Gibraltar, but the award of damages was £30,000.
(2) Kadir v Channel S Television Ltd  EWHC 2305 (QB) involving a broadcast to about 3,500 people alleging evasive and incompetent dealings with concerns of fraud in a company in a highly evasive and incompetent manner.
(3) Royal Brompton & Harefield NHS Foundation Trust v Shaikh  EWHC 2857 (QB), involving repeated publications alleging racism, dishonesty and paedophilia.
(4) Reaching back in time, Mr Vines points to Campbell v News Group Ltd  EMLR 43 and Jones v Pollard  EMLR 233, each involving allegations of direct involvement in criminal activity centred on sexual offences, as a pimp (Jones) or the sexual abuse of children and voyeurism (Campbell). Neither case yielded more than £40,000 in damages.
Article 10 and political expression
The present case