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||Neutral Citation Number:  EWHC 662 (QB)
||Case No: HQ11000728
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE TUGENDHAT
||- and -
||(1) CFW (2) TFW
Mr Richard Spearman QC (instructed by Farrer & Co LLP) for the Claimant
The Defendants did not appear and were not represented
Hearing dates: 3 March 2011
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Tugendhat:
- This judgment sets out the assessment of the damages for slander and libel, and for harassment, upon which judgment is to be entered in favour of the Claimant against the Second Defendant. Judgment on liability was entered against the Second Defendant on 30 July 2012. My reasons were set out in a public ex tempore judgment which had not been transcribed at the time of the hearing, although there was a note of it available. However, the reasons why I granted the original injunction and other orders ("the Interim Injunctions") are set out in my judgment dated 7 March 2011, which was reserved and is available under the Neutral Citation Number  EWHC 476(QB) ("my 2011 judgment").
- Judgment on all issues was entered by consent against the First Defendant earlier this month (7 March 2013) in the form of a Tomlin Order with a Confidential Schedule (that order included undertakings given by the First Defendant, a provision for anonymity and other provisions to prevent republication of the identity of the Claimant). So there was no reason why the First Defendant should have attended or been represented at this hearing.
- The Claimant is a married man with children who are old enough to be starting out in life on their own. The Claimant has worked in finance for over thirty years. He has held senior positions in businesses which are engaged in the management of funds for investors who include trustees. He has also been the chairman of the board of governors of a school ("the School").
- The Claimant's wife is one of a number of beneficiaries of some substantial family trusts ("the Trusts") based in the Channel Islands. The First Defendant is her sister, and is another beneficiary of the Trusts. The Second Defendant is the First Defendant's husband. The Defendants are thus the sister and brother-in-law of the Claimant.
- The First and Second Defendant have children. The Second Defendant has not enjoyed a livelihood with very remunerative employment in the past, and since these proceedings were commenced in 2011 he has claimed to be living in Italy, separated from his wife and children who remain in England. The Second Defendant is not a beneficiary of the Trusts, but, as the husband of the First Defendant, he has benefited from the Trusts indirectly. In an e-mail of 11 November 2008 the Second Defendant said that he had complete and irrevocable control of all funds relating to the First Defendant and their children. His conduct, which is the subject of this action, has been designed to achieve a financial gain from the Trusts greater than that which his wife and children (and, it seems, he himself) would otherwise obtain. He has been engaged in extortion or blackmail. But whereas what many blackmailers threaten to publish is true information, in the present case what the Second Defendant has published and threatened to publish are allegations which (as I decided on 30 July 2012) are entirely false and without foundation.
- On 30 July 2012, in addition to entering summary judgment for the Claimant against the Second Defendant on liability, I also granted the final (or permanent) injunctions set out in that Order. The Order also provided that the Second Defendant pay the Claimant's costs, and that damages against the Second Defendant be assessed at the trial of the claim against the First Defendant. I was satisfied that the Claimant had proved by the evidence summarised in para  of my May 2011 judgment that the allegations against him were false.
- The date for this hearing was originally fixed for both the trial of all issues in the claim against the First Defendant, and for the assessment of damages against the Second Defendant. However, since the proceedings between the Claimant and the First Defendant have been settled, this hearing is now solely for the assessment of damages as against the Second Defendant.
THE COURSE OF THESE PROCEEDINGS
- These proceedings started on 25 February 2011 with an application by the Claimant for an injunction. That was made without notice to the Defendants. By order of that date I granted injunctions to run until 3 March restraining both the Defendants from (amongst other things) disclosing information concerning the Claimant, which was specified in a Confidential Schedule, and from harassing him, whether by further publishing, or threatening to publish that information.
- At a hearing on 3 March I continued these Interim Injunctions. Although that hearing was on notice to the Defendants, neither of them appeared or was represented. I set out the reasons why I had made these two orders in my 2011 judgment.
- On 4 April 2011 the Master made an order granting the Claimant permission to serve the proceedings at an address in Cambridge, and by e-mail. This was because the Defendants were evading service (see paras  and  of my May 2011 judgment).
- The Second Defendant commenced the course of conduct which I have found to be harassment in November 2008: see paras  to  and  of my May 2011 judgment, and the citations from that judgment below.
- The Second Defendant made the first of the allegations upon which the Claimant sues in defamation in telephone conversations in January and February 2011 with representatives of his employer. These conversations have given rise to three similar claims in slander. The Second Defendant also made the allegations to other family members, together with threats to publish to the world at large if his financial demands were not met. These have given rise to four similar claims in libel. There is a fifth claim in libel in respect of a publication on 9 March 2011 by fax to persons with responsibility for the School.
- When the Claimant did not meet Second Defendant's demands, the Second Defendant carried out his threats. He published the allegations on the internet on and after 4 March 2011 under a heading falsely referring to it as a Super-injunction. By the time of the libel to the School, and the publications on the internet, the Interim Injunctions had been granted, so these publications were prima facie in contempt of court. However, in this judgment I am not concerned with contempt of court (that was the subject of a separate set of proceedings), but with the assessment of damages. The fifth libel is pleaded in the Particulars of Claim, which was dated 22 March 2011.
- The internet publications are relied on as conduct in aggravation of damage, and not as one of the pleaded causes of action. The first of the internet publications consisted of the whole of the Order dated 3 March 2011 (including the Confidential Schedule). It was posted on 4 March 2011, the day after the Order was made and notified to the Second Defendant.
- The Second Defendant's allegations against the Claimant are of two kinds, financial and sexual. The gist of the financial allegation is that the Claimant received a payoff of $22m for countenancing, or participating in, the misapplication, loss or poor investment of the funds of the Trusts and/or that he illegally obtained $22m from the Trusts. The sexual allegation is that he is a paedophile.
- Although the First Defendant served a Defence, she has never at any time suggested that there was any truth whatsoever in either of the allegations. Nor did she raise any other defence available in defamation, such as honest comment or absolute or qualified privilege. Her defence was that she denied all responsibility for the publications and threats of publication.
- The Second Defendant has taken no part in the proceedings. He has not at any time, whether formally or informally, disclosed any information which could give rise to any defence, whether of truth, comment or privilege.
- If this were not so plainly an attempt at extortion, his omission to raise any defence would be surprising. This is because, in making his allegations, he has also claimed to want them to be brought before a court. His financial allegations could, of course, easily have been brought before a court in the Channel Islands, and could also have been raised in this court in these proceedings. But he has not taken the opportunity presented by these proceedings to set out any legal or factual basis for his allegations. If there had been any foundation for the sexual allegation, that too could also have been raised in this court as a defence to this claim. However, the Second Defendant has never identified any details of the sexual allegation: he has identified no victim, and no place or date where the relevant acts might have been performed.
INJUNCTIONS AND FREEDOM OF EXPRESSION
- The principle of freedom of expression, recognised by English law for centuries, provides that there shall be no interim injunction granted to restrain a threatened publication, if there is any basis upon which a court might decide at a trial that the threatened publication may be lawful. So if it is arguable that the threatened publication may not be defamatory, or if there is material before the court which could form the basis of a defence of any kind, no injunction will be granted before a final judgment is entered. This principle is commonly known in England as the rule in Bonnard v Perryman  2 Ch 269 (a nineteenth century case in which this much older principle was re-affirmed).
- As a result of this principle, it used to be extremely unusual for claimants to apply for, or be granted, interim injunctions to restrain the publication of a slander or libel. Unfortunately interim injunctions to restrain defamatory publications are becoming more frequent. This is because defendants can easily publish false and malicious allegations on the internet, and some people choose to do so as a means of extortion, harassment or revenge, or for other motives. These campaigns of vilification existed before the internet, and could be conducted by the use of leaflets, flags and banners, as occasionally they still are. See for example Howlett v Holding  EWHC 41, referred to in my 2011 judgment. The reasons why an interim injunction could be granted in this case are set out in my 2011 judgment: there was no information before the court upon which any defence could have been advanced.
- The Protection from Harassment Act 1997 s.7(4) provides that speech can amount to harassment (as in Thomas v News Group Newspapers Ltd,  EWCA Civ 1233;  EMLR 78 and see Gatley on Libel and Slander 11th ed para 27.17). Interim injunctions are increasingly granted to restrain harassment in the form of campaigns of vilification. Some of these campaigns involve the publication of defamatory allegations (others involve indecent images, or the publication of private or personal information). However, before granting an interim injunction on the basis of harassment, the court considers first whether reliance on the law of harassment is an attempt to by-pass the law on freedom of speech, and will only grant the injunction if satisfied that that is not the case. See eg Howlett v Holding at paras -, and my 2011 judgment at para .
- On the other hand, once a final judgment has been entered, whether after a trial, or summarily, a defendant's right to freedom of expression does not preclude the grant of an injunction. On the contrary, a claimant who succeeds in obtaining a final judgment is normally entitled to a permanent injunction to vindicate the right that he has proved that he has.
- Freedom of expression is valued, amongst other reasons, because it tends to lead to discovery of the truth: R v Secretary of State for the Home Department ex parte Simms  AC 115, 126E-G. So where a defamatory allegation has been proved to be false (as has happened in the present case) there is no public interest in allowing it to be republished, and a strong public interest in preventing the public from being further misinformed. Final or permanent injunctions have been routinely granted after final judgments.
ANONYMITY AND OTHER DEROGATIONS FROM OPEN JUSTICE
- The Interim Injunctions included derogations from open justice, most notably anonymity for the Claimant, and the inclusion of the allegations complained of in a Confidential Schedule (subject to the public judgment which made clear that the allegations included that the Claimant had misappropriated money from trusts: see para ). Anonymity and other provisions in the order were necessary, because this was a case of blackmail, and to ensure that the purpose of the proceedings was not to be defeated by my setting out in a public judgment the very allegations against the Claimant the publication of which he sought to prevent. At that time the publications had been made only to a very limited number of people, and publication to the public at large was being threatened: see para  of my May 2011 judgment.
- Further information about Second Defendant's allegations was published in the order of 30 July 2012.
- However, the Claimant submits that it remains necessary to preserve his anonymity. Mr Spearman advances his case for a permanent order for anonymity on two main bases. First he submits that, as in the Interim Injunctions, so in the final orders, if the Claimant is named that will largely defeat the purpose for which he brought the proceedings. Second he submits that this is a case of harassment by blackmail, that anonymity orders are an established measure in criminal cases of blackmail, and that for the same reasons such an order is necessary in this case.
Anonymity in defamation claims
- The slanders and libels complained of were (until 4 March 2011) to a very limited number of publishees. One purpose of the proceedings was to prevent publication to the public at large.
- Mr Spearman submits that the allegation of financial dishonesty and, in particular, the sexual allegation, is each amongst the most serious allegations that can be made, and engage the Claimant's right to private life under ECHR Art 8. The approach of English law, that an award of damages and/or vindication at the conclusion of legal proceedings is, or is in all cases, an adequate remedy for the publication of defamatory allegations in breach of the Article 8 right to reputation, is far too blunt, and does not comply with the Convention. That approach is exemplified by Greene v Associated Newspapers Ltd  QB 972, in which the Court of Appeal held at  that:
"In a defamation action, on the other hand, while some damage may be done by permitting the publication of what may later turn out to be false, everyone knows that it is at the trial that truth or falsehood will be tested and the claimant vindicated if the defendant cannot prove that the sting of the libel is justified or that he has some other defence the law will recognise".
- He submits that the authors of Clayton and Tomlinson, The Law of Human Rights, 2nd ed, are right to say at [15.28]
"The analysis in the Greene case is unsatisfactory and is inconsistent with the modern jurisprudence of the Court of Human Rights. Once it is accepted that there is an Article 8 right to reputation the Court must carry out a proper 'parallel analysis' in every case in which interim relief is sought".
- Mr Spearman submits that these remarks apply equally to publication of a final judgment, in which not only are the allegations complained of repeated, but also the Claimant is identified.
- Most libel claimants are unlikely to want an anonymity order. If the libel has been widely published, the claimant will want a judgment that is equally widely published, to demonstrate that he has cleared his name. It is in cases where the libel has been published to a small number of publishees that the question of anonymity is likely to arise in a defamation action. In many cases, a publication to a single publishee may not be sufficiently serious to merit a defamation action at all. But in some cases, such as where the publication is to an employer, or prospective employer, a single publication can be more damaging than a publication to the world at large.
- Mr Spearman submits that since the advent of search engines, information which in the past would have been forgotten (even if it had been received front page coverage) will today remain easily accessible indefinitely. So a libel claimant who has a judgment in his favour nevertheless risks having his name associated with the false allegations for an indefinite period.
- Anonymity orders are granted in the criminal and civil courts in cases involving children, and in other circumstances where the public interest in publishing a report of the proceedings which identifies a party (or the normally reportable details) does not justify the resulting curtailment of the rights of the claimant (or others) to respect for their private lives: JIH v News Group Newspapers Ltd  1 WLR 1645;  EWCA Civ 42.
- Mr Spearman submitted that, as the House of Lords noted in Cream Holdings Ltd v Banerjee  UKHL 44,  1 AC 253 para , the court should not, by itself publishing information in a judgment, undermine the rights which a claimant is seeking to protect.
Anonymity and blackmail
- Further, as Mr Spearman submits, the courts when dealing with cases of blackmail or extortion have long been accustomed to granting anonymity. In R v Socialist Worker, ex pa A-G  QB 637 (DC) the publishers and Mr Paul Foot were held to be in contempt of court in disclosing the names of the complainants in a blackmail trial in defiance of the trial judge's direction. Lord Widgery CJ set out the reasons for giving anonymity to blackmail complainants as follows:
"(644)…all of us concerned in the law know that for more years than any of us can remember it has been a commonplace in blackmail charges for the complainant to be allowed to give his evidence without disclosing his name. That is not out of any feelings of tenderness towards the victim of the blackmail, a man or woman very often who deserves no such consideration at all. The reason why the courts in the past have so often used this device in this type of blackmail case where the complainant has something to hide, is because there is a keen public interest in getting blackmailers convicted and sentenced, and experience shows that grave difficulty may be suffered in getting complainants to come forward unless they are given this kind of protection….
(p650) the Crown at this stage had presented a prima facie case of contempt … because to my mind it is quite evident that if witnesses in blackmail actions are not adequately protected, this could affect the readiness of others to come forward in other cases".
- Today there are all too many cases where the victim of blackmail cannot expect any remedy from a complaint to the police, and must have a remedy, if at all, in the form of an injunction (see eg ASG v GSA  EWCA Civ 1574). This is such a case. The Second Defendant cannot be found, and claims to be living outside the jurisdiction. So the criminal law provides no protection unless or until he can be arrested.
- Mr Spearman submits that, while the Interim Injunction has not prevented all further publication (since the Second Defendant has continued to make some publications on the internet), the permanent injunction and this judgment will continue to provide a considerable measure of protection for the Claimant, so long as it is anonymised. The effect of the injunction has been that no reputable newspaper publisher or broadcaster has repeated the allegation, and the permanent injunction, together with the award of damages, will have to be taken into account by anyone within the jurisdiction who might be contemplating repeating the allegations.
- Mr Spearman submits that, whatever the Second Defendant's motives, the court should not so act as to increase the harm done by the Second Defendant, or to provide assistance to the fulfilment of his unlawful aims, or encouragement to him to pursue such means in the future.
- I have decided to grant anonymity to the Claimant on a permanent basis because the Second Defendant is attempting to blackmail him.
- Many campaigns of extortion or revenge that come before the courts relate to information which is either true, or may be believed by the defendant to be true, and the claim is brought in privacy and harassment. See for example: WXY v Gewanter  EWHC 496 (QB) (where some of the information was true, and some of it false and without any foundation); EWQ v GFD  EWHC 2182; and SKA v CRH  EWHC 2236 (QB) (where blackmail was proved at the trial). In some cases the information is pornography: eg Contostavlos v Mendahun  EWHC 850 (QB).
- However, there have been other recent cases (in addition to WXY), where, as in the present case, defendants have conducted campaigns of vilification in which they publish, or threaten to publish, information which they know to be false, or do not believe to be true. These include: Cooper v Turrell  EWHC 3269 (QB) and The Law Society v Kordowski  EWHC 3185 (QB).
- To the extent that, since the action was started, the allegations have been published on the internet, that was because this is a case of extortion: since the Claimant did not give in to the Second Defendant's threats, the Second Defendant has resorted to carrying out his threats in defiance of the injunction. It is very unusual for a defendant to defy an injunction in this way. The Second Defendant was in England when the Interim Injunctions were first granted, and if he returned to England he would be liable to be imprisoned. The Second Defendant is acting either by way of revenge, or, perhaps, as a preparatory step to render more credible further extortionary threats which he may make in the future.
- If the Second Defendant had complied with the Interim Injunctions, and not misreported them, or published in breach of them, then it may be that no anonymity order would have been necessary in this case. But the history of his publications on the internet demonstrates that the Second Defendant would be likely to use any public judgment which named the Claimant to exact further revenge, or support further extortionate demands.
- The court must adapt its procedures to ensure that it does not provide encouragement or assistance to blackmailers, and does not deter victims of blackmail from seeking justice from the courts.
- It is for this reason that I shall make the anonymity order part of the final order in this case. That does not mean that the order can never be revoked. Even a permanent order can be changed on the application of a person affected by it, if the circumstances change, or if the applicant can persuade the court that justice so requires.
- I add the following observations. There is a difference between the position today and the position when I first made the orders on 25 February and 3 March. Since 4 March the Second Defendant has published the allegations to the public at large. And any order made today will be a permanent order, not an interim order.
- Anonymity for a claimant is unusual in a defamation action, although there are examples of both interim and final orders in libel actions. At an earlier hearing, which was attended by reporters, I referred to P v T  1 WLR 1309. In that case Sir Richard Scott V-C granted a Norwich Pharmacal disclosure order to enable a prospective plaintiff to obtain information and documents from his former employer. These were necessary for the bringing of an action of libel or malicious falsehood in respect of allegations which had led to his dismissal for misconduct. The judge did not in his judgment explain the reasons why the names of the parties are anonymised (until recently it was rare for judges to give such reasons). But if he had named the plaintiff, that could only have had the result that the plaintiff would have found it more difficult to obtain employment thereafter.
- As a matter of principle, there is no reason why an anonymity order should not be made in a defamation action. A v UK Application no 35373/97 (2003) 36 EHRR 51 is an example of a libel action which was anonymised to prevent harassment of the claimant and her family. C v Mirror Group Newspapers  EWCA Civ 1290;  1 WLR 131; S v Newham LBC  EMLR 583;  1 F.L.R. 1061, H v Tomlinson  EWCA Civ 1258,  ELR 14 and KC v MGN Ltd reported in Cairns v Modi  EWCA Civ 1382;  WLR(D) 302 are all examples from the law reports of decisions in the Court of Appeal in libel actions where a child was involved, and if the judgment had identified the claimant it would have identified the child.
- One reason why there are relatively few reported cases where anonymity has been given in a libel action is that, until Hodgson v Imperial Tobacco Ltd  1 WLR 1056, interim applications in the Queen's Bench Division were not reported at all, unless there was an appeal to the Court of Appeal. Defamation actions have to be started in the Queen's Bench Division. The fact that P v T  1 WLR 1309 was heard in the Chancery Division (where interim applications were normally heard in public, and could be reported) was therefore exceptional. Since Hodgson judges have taken a number of measures to promote open justice which they did not take before. Hearings in the Queen's Bench Division are now public. And courts now publish on the internet, eg on the Bailii website, very large numbers of judgments that would, before the internet, never have been included in any published law report.
- One reason why there are relatively few reported cases where anonymity has been given in a libel action involving blackmail is that in most cases of blackmail the information which the blackmailer threatens to publish is true, so no libel action could succeed. The action has to be brought in confidence or privacy, if the circumstances make that possible.
- In W v JH  EWHC 399 (QB) the claimant issued libel proceedings in respect of an allegation made to a prospective employer. The hearing had taken place in public, in the normal way. I did not make an anonymity order. If I had given an ex tempore judgment, it would probably not have been transcribed or published, and no one would have known anything about the case, unless they, or a reporter, had happened to be in court. I handed down my judgment in W v JH in writing, but I substituted initials for the names of the parties. The reason for doing this was that the allegation complained of by the claimant was of sexual harassment on an occasion in the past, which he had disputed, and which had received little if any publicity at the time. And the allegation sued on had been made, not to the public at large, but privately, to a prospective employer. If I had named the claimant in the judgment, he would have been worse off as a result of bringing the action, than he would have been if he had brought no proceedings at all. The court would have been publishing the allegation to the world (including other prospective employers whom the defendant had not approached), and the claimant would have had no effective means of vindicating his reputation.
- Since I am persuaded that the blackmail is a sufficient basis for continuing the anonymity order in this case, I do not need to express a view as to whether I would have granted anonymity if there had been no blackmail.
THE PURPOSE OF DAMAGES FOR DEFAMATION AND HARASSMENT
- The purpose for which courts award damages in respect of any civil wrong a defendant has committed is to compensate claimants for the damage they have suffered as a result of the wrong. This used to be known as the principle of restitution in integrum. But damages for defamation serve a further purpose. This was explained by Lord Hailsham in Broome v Cassell & Co  AC 1027 at 1071c-1072a:
"In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. …
Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant…. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being "at large." In a sense, too, these damages are of their nature punitive or exemplary in the loose sense in which the terms were used before 1964, because they inflict an added burden on the defendant proportionate to his conduct, just as they can be reduced if the defendant has behaved well - as for instance by a handsome apology …. In all such cases it must be appropriate to say with Lord Esher M.R. in Praed v. Graham, 24 Q.B.D. 53, 55:
"… in actions of libel … the jury in assessing damages are entitled to look at the whole conduct of the defendant" (I would add personally "and of the plaintiff") "from the time the libel was published down to the time they gave their verdict. They may consider what his conduct has been before action, after action, and in court during the trial."
- These principles have been explained and re-affirmed in a number of subsequent cases, to which Mr Spearman has referred me. In John v MGN Ltd  QB 586 at p607 the Court of Appeal set out the following guidance:
"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. 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. 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 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."
- Other cases are helpful in assisting the court to arrive at a figure which is proportionate to the wrong that has been done in the case the court is considering, and to assist the court in making an award that is consistent with the awards made in other cases. But Mr Spearman rightly accepts that they are an imperfect guide because circumstances vary so much from one case to another.
- The present maximum award of general damages for defamation, allowing for inflation, and without taking account of any uplift consequential on what are usually described as the Jackson reforms taking effect in April 2013, is of the order of £275,000: Cairns v Modi  EWCA Civ 1382 para .
- Other cases that Mr Spearman cited included: Campbell v News Group Newspapers Ltd  EMLR 966, including the summary of Houston v. Smith (unreported, December 16, 1993); Gur v Avrupa Newspaper Ltd  EWCA Civ 594, Emlick v Gulf News (unreported, July 23, 2009) and Al Amoudi v Kifle  EWHC 293 (QB).
- The context in which words complained of have been published is always an important factor in arriving at the meaning of words complained of, and thus at their gravity.
- Damages for harassment are to compensate a claimant for distress and injury to feelings. Mr Spearman rightly submits that where the harassment consists in the publication of defamatory allegations, the harassment may aggravate the damages, but should not lead to any double counting in the award.
- In Vento v Chief Constable of West Yorkshire Police  EWCA Civ 1871;  ICR 318 the Court of Appeal gave guidance on damages for harassment in the workplace. The figures would require adjustment for inflation, and approximate equivalents are in square brackets. It is as follows:
"65. Employment Tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.
i) The top band should normally be between £15,000 and £25,000 [£19,950-£33,250]. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000 [£33,250].
ii) The middle band of between £5,000 and £15,000 [£6,650-£19,950] should be used for serious cases, which do not merit an award in the highest band.
iii) Awards of between £500 and £5,000 [£665-£6,650] are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.
- As Mr Spearman submits, a website publication will remain accessible in ways that a hard copy publication never did. In some cases (where the fame of a person has increased) it may even be viewed with increasing frequency. So a person's reputation may be "damaged forever" in the words of Lord Nicholls in Reynolds v Times Newspapers Ltd  AC 127 at p201. As I remarked in another case, quoting from an article in The Guardian by Siobhain Butterworth, on 20 October 2008, what is to be found on the internet may become like a tattoo (Clarke (t/a Elumina Iberica UK) v Bain & Anor  EWHC 2636 (QB) para ).
- Actual and prospective employers, or other prospective associates, now commonly make checks on people by carrying out internet searches. An old defamatory publication may permanently blight a person's prospects. This may be so, even in those cases where the allegation has been authoritatively refuted, but the refutation is either not on the internet, or, where it is on the internet, its authority is not apparent, or is not credited, on the footing that there is no smoke without fire. There is a reluctance to be associated with a person who attracts negative questions or publicity, even on the part of those who believe the person to be entirely innocent of allegations made against him.
- Mr Spearman also referred me to cases on factors which may mitigate any damage. There is nothing of that kind in the present case so far as the Second Defendant is concerned. And there is nothing that the Claimant has done wrong, and nothing that he has done that might explain the campaign against him.
- Mr Spearman also draws attention to the fact that there is no claim for special damages in this case. In some cases allegations as serious as the ones in this case would, at least if they were credible, be likely to lead to loss of employment and other special damage. It is not alleged that the Claimant has suffered in this way in this case.
- In the light of the guidance given in the case law, it is necessary to review the whole conduct of the Second Defendant, both before and during this action, and to consider the number of persons to whom the defamatory allegations have been published. But before doing that, it is necessary to consider in what ways a claimant may rely in aggravation of damages upon defamatory publications which are not pleaded as causes of action in the Particulars of Claim. In the present case Mr Spearman relies on the internet publications, most of which post-dated the Particulars of Claim.
AGGRAVATED DAMAGES IN DEFAMATION
- Mr Spearman relies on the publications on the internet which are not one of the three slanders or five libels pleaded in the Particulars of Claim as major aggravating features of this case.
- The extent to which a claimant can rely on subsequent publications in this way has been the subject of discussion: see Gatley para 9.14. The two cases cited on the topic are the decision of Gray J in Collins Stewart v Financial Times Ltd  EMLR 100;  EWHC 262 (QB) and my own decision in Clarke v Bain paras -.
- There is no doubt that publications by a defendant subsequent to those which are relied as causes of action can be relied on by the claimant to prove malice, and thus the injury to a claimant's feelings: Pearson v Lemaitre  5 M&Gr 700, Gatley para 9.14. However that is not to be confused with damages for injury to reputation.
- In Clarke v Bain I did not have to decide this issue, because I refused the application to amend to plead the later publications in aggravation of damage on case management grounds alone: para .
- Gray J did decide the issue, but in a case where the claimant was a corporation. Corporations are different from individuals in that they cannot claim injury to feelings. Gray J said at paras -:
"24. The starting point for any discussion of the legitimacy of the use to which Collins Stewart wish to put the subsequent articles is that they could, if they had chosen to do so, have complained of them as separate causes of action. Issues of meaning and any defences could then have been debated at trial in the usual way. ... If … liability were to be established against the newspaper, Collins Stewart would be entitled to further separate awards after the judge had directed the jury (or himself) to take care to avoid double-counting. This is a familiar and workable scenario.
25. However, Collins Stewart, for whatever reason, did not take that course. It is necessary to look with some care at the position which arises as a result of their having confined their cause of action to the original article. …
26. … What is the position where a claimant is the subject of a series of articles? There are various possibilities. Assume that the defendant publishes three defamatory articles referring to the claimant, articles A, B and C. If articles B and C add to the damage caused by the publication of the original article A and are not defensible, then I think that articles B and C should in principle generally be made the subject of separate complaint as separate causes of action. To do so would make matters simpler and clearer for the jury (or judge) if and when it comes to assessing damages. If on the other hand articles B and C, whilst defamatory of and damaging to the claimant, do not repeat the libel which was contained in article A, it appears to me to be objectionable in principle to allow the claimant to rely on articles B and C in connection with damages recoverable for the publication of article A. Articles B and C would be separate torts giving rise to separate claims for damages. If on the other hand articles B and C consist in part of the repetition of the libel contained in article A and in part of other distinct libels on the claimant, formidable problems will in my opinion arise in disentangling the recoverable and the irrecoverable damage in respect of article A.
27. My starting point is therefore that there are sound reasons both of principle and of practice why a claimant, whether an individual or a corporation, should not be permitted to seek to recover increased damages in respect of the publication by the defendant of article A by reason of the publication by that defendant of subsequent articles B and C which are not themselves the subject of complaint".
- In my judgment I should follow that decision in this case. The Claimant could have asked for permission to amend to plead the unpleaded internet publications, or he could have commenced separate proceedings. There are no doubt good reasons why he did not, although I have not been told what they are in this case.
- For example, the primary purpose of libel actions is to vindicate a claimant's reputation, not to recover damages. Further, there is no evidence about the Second Defendant's assets, or the likelihood of any recovery against him. The judgments of English courts are enforceable abroad, and easily so in an EU state such as Italy. But recovery depends upon a defendant's assets. The ability of a defendant to pay the sums due under a judgment is not relevant to the assessment of damages. The assessment of damages will be the same whatever the means of the defendant or the likelihood of enforcement. The value of the award of damages to a libel claimant is not only, or even primarily, the amount he will recover, but the extent to which the award demonstrates the falsity of the libel.
- Accordingly, in considering the number of publishees for the purpose of damages for defamation, I shall have regard to the eight causes of action that are pleaded in the Particulars of Claim, and not the unpleaded internet publications.
- But in considering the harassment and distress caused to the Claimant I shall take into account all the distress he suffered, including distress from observing the effect of all the publications (whatever their date) on his daughter and other family members. This is in support of distress suffered by himself as a result of his observations. It is not in support of a claim for distress suffered by the family members themselves. See Gatley para 34.53.
THE CONDUCT OF THE SECOND DEFENDANT
- The course of conduct of the Second Defendant which I have found to be harassment starting in November 2008 is described in my May 2011 judgment:
"6. First, an email from Y of 11 November 2008. In that email Y said that, so far as concerns the trusts, he had complete and irrevocable control of all funds relating to the First Defendant and her children. Y also suggested that the Claimant had misappropriated money from the trusts, and demanded the liquidation and payment to Y of part of an investment made by the trusts and compensation for losses said to have resulted from the investment. Those demands appear to explain the motive for the matters complained of in this claim.
7. Second, an email from Y to the senior partner in an offshore law firm dated just over two weeks ago. In that email, Y said that he had asked the Defendants' family to forward letters authorising that lawyer to discuss all of their affairs with Y and to negotiate. The email also stated that "The [Defendants'] family in their letters to you will direct you to channel all communications to me (and for [one of the Defendants' children] to [X]). And they insist that all annoyances/threats/cajoling/theatrics cease". It ended "If we have an understanding on these points, I will entreat [X] to back off his global crusade".
8. Third, the response to the letter before action. This is dated 20 February 2011. It came not from the Defendants (to whom the letter before action had been sent), but instead from X (who, as the Claimant contends, must have got it from the Defendants). This response is headed "CLEARED FOR WORLDWIDE PUBLICATION". It is a defiant and provocative response, which gives no indication of acceding to the demands made in the letter before action. Quite the contrary. For example, with regard to an assertion in the letter before action that "there is no more serious allegation" than one of the allegations previously made by X, it states "May I suggest that you are only saying this because you have not yet heard the rest of the allegations that are coming down the pipeline?"
9. Fourth, when Farrers replied on 21 February 2011, asking for confirmation that X is acting as the Defendants' agent, and that it is the intention of X to "disseminate widely the allegations you have so far set out in the three publications identified in [Farrers'] letter", X responded as follows on 22 February 2011. For one thing, X professed not to know who Farrers were referring to when they gave the first names of the Defendants and their children. For another, X wrote that he had seen Farrers' letter on Facebook and "I don't know how, but it seems to be on the verge of going viral". In addition, X wrote "on the subject of deadlines" that "here is one. February 25th" and then followed that with a threat against the Claimant.
10. Fifth, an email from X to the Claimant's wife dated 22 February 2011. This makes remarks about the Claimant's solicitor and ends "Everyone on the WORLD WIDE WEB is with you".
11. Sixth, an email from X to Julian Pike, a partner in Farrers, dated 24 February 2011. This includes the words "Tomorrow is the BIG DAY. Julian's deadline for unleashing the tremendous powers of the UK legal system" and "will some evil person leak the entire proceedings and all the sordid details so that the irresponsible global media … can really get their teeth into [them]", and which ends "Well, you can see this is shaping up to be quite an extraordinary event. Stay tuned!" "
- The three slander claims are as follows. The first relates to a telephone call made on or about 28 January 2011 to a director of the PR representatives of the Claimant's employers, which was repeated by that director to a representative of those employers. This involved the financial allegations – essentially of fraud:
"[he] illegally obtained $22m of funds") and mismanagement on a massive scale ("[since being] managed by him … the funds had decreased to $7m".
- The second claim in slander relates to a telephone call made on or about 3 February 2011 to an employee of the same PR representatives of the Claimant's employers. This involved both the financial and the sexual allegations:
"[he] was implicated in a case involving a paedophile priest".
- The third claim in slander relates to a telephone call made on or about 9 February 2011 to the Chief Executive of the Claimant's employers. This involved the financial allegations:
"[he] received a £22m pay-off … He was meant to be a protector for the family … he was supposed to look after the interests of the … family … and he did not. He took a pay-off …"
- These slanders were not believed by the publishees. They were incapable of being believed by any rational person. The conversation in one of the calls has been transcribed over five closely typed pages. It is clear that the Second Defendant was confused and unable of giving a coherent account of his complaint. At the most basic level he was confused as to whether the sum of $22m, which he alleged the Claimant had received, was the amount of an unlawful benefit to the Claimant, or whether it was the amount of an investment which the Trustees had made, and from which the Claimant might benefit (as he claimed unlawfully) in the form of fund management or other fees, commissions or indirect benefits. The Second Defendant was unable to explain why he did not pursue his complaints against the Trustees, who would be the persons against whom it would obviously be most appropriate to pursue an allegation of misappropriation of trust funds. The Second Defendant's financial complaints to the Claimant's employer made no sense at all.
- The sexual allegation was equally incredible. It lacked any detail at all, and again the Second Defendant did not explain why it was being made to the Claimant's employer, when it had not been made to an appropriate authority which might be responsible for investigating such matters.
- There are also five libel claims. The first relates to an email sent on or about 9 February 2011 to one of the Claimant's brothers-in-law. This involved both the financial allegations, essentially of fraud on a massive scale, and the sexual allegations as well as an allegation that the Claimant is unfit to be a school governor and should and would be asked to resign as such. It included:
"[he] received $22 million as a payoff to look the other way to allow the rape of the … Trust to the tune of 60 million GBP as part of an on-going criminal enterprise."
- The second relates to an email sent on or about 10 February 2011 to the Claimant's same brother-in-law. This involved the sexual allegation.
- The third relates to an email sent on or about 10 February 2011 to the Claimant's same brother-in-law. This involved the sexual allegation.
- The fourth relates to an email sent on or about 11 February 2011 to one of the Claimant's sisters-in-law. This involved the financial allegations, essentially that the Claimant had accepted an illegal bribe, was guilty of theft or there are reasonable grounds to suspect that he is guilty of theft, and had seriously betrayed his family:
"it is time for [him and his wife] … to face up and apologise for their betrayal of family interests in exchange for a $22m bribe … [a property is liable to be seized back from them on the basis of] the allegation that the funds used to purchase [the property] were stolen in a kick-back scheme and were part of an on-going criminal enterprise".
- The fifth relates to a fax sent on or about 9 March 2011 to the Deputy Head, Pastoral Deputy Head, and a fellow governor of the School, and republished to the Headmistress of that school. This involved both the financial allegations and the sexual allegation, essentially that the Claimant is, or that there are reasonable grounds to suspect that he is, involved in on-going serious organised crime including a scheme to defraud the beneficiaries of a family trust of $22m ("alleging that from 2004 onward he was involved in a complex scheme to defraud the Trust beneficiaries of … $22 million"), that he has, or there are reasonable grounds to suspect that he has, perpetrated financial improprieties with trust monies, causing loss to Italian residents ("[he] is the subject of a variety of legal activities in Italy … for various financial improprieties with trust monies involving victims who are Italian residents"), and that he is, or there are reasonable grounds to suspect that he is, a paedophile who has sexually abused at least one child ("I have read a signed affidavit from the parent of a minor child allegedly molested by [him] … and have personally spoken to the child").
- If these are the only publications, the most notable features about them for he purposes of assessing damages would be that the allegations were very grave, but that they were published to a very limited number of people, and not believed. I would consider that, having regard to the character of the publishees (people in responsible positions in life, and a sympathetic family member), there would be little, if any, real risk that any of the publishees would republish the allegations. So the damages would be a sum enough to mark the seriousness of the allegation, and to compensate for the distress such a limited publication caused in circumstances where it was not believed.
- However, matters have not rested there, because in breach of the Interim Injunctions the allegations have been republished on the internet.
- The reason why I find that it is the Second Defendant who is responsible for the publications on the internet is that the material published includes detailed information which was disclosed only to the Defendants. Further, the Defendant demonstrated a willingness to disobey the order with his fax of 9 March. And no one else has a motive to disclose the identity of the Claimant. The publications in breach of the Interim Injunctions, in addition to the two mentioned above (the posting of the Order itself on 4 March and the fax on 9 March 2011), are as follows.
- On or around 17 and 26 March 2011 the identity of the Claimant as a party to the proceedings, and/or as the subject of the material referred to in the Confidential Schedule to the interim Order, appeared on a dedicated website.
- On 12 May 2011, in response to the application to commit her for contempt of court, the First Defendant served an Affidavit denying that she was aware of, or responsible for, the allegations against the Claimant. On 17 May 2011 the First Defendant served a Defence containing denials to the same effect. On 25 May 2011 the Claimant's application for committal came on for hearing before me. The First Defendant was represented, but the Second Defendant did not appear and was not represented.
- I made an Order by consent as between the Claimant and the First Defendant, and adjourned the application as against the Second Defendant. In accordance with that Order (among other things, and subject to various provisos) the First Defendant undertook to the Court, that until after the conclusion of the trial of this claim or further order in the meantime, she would not (amongst other things) disclose any information that might identify the Claimant as a party to the proceedings and/or as the subject of the material referred to in the Confidential Schedule to that Order. The paragraph of the Order of 3 March 2011 which prohibited disclosure of the information in the Confidential Schedule was discharged as against the First Defendant.
- The Second Defendant has never offered any such undertakings, although he claims to be acting in the interests of his and the First Defendant's children.
- Thereafter, there were prolonged attempts to settle the proceedings as against the First Defendant. When these failed, the Claimant issued his application seeking directions against the First Defendant and summary judgment against the Second Defendant. This application was heard by me on 30 July 2102 and resulted in his Order of that date which has already been referred to above.
- Following the hearing on 30 July 2012, on or around 17 September 2012, there was a further publication on an Internet website having a similar but different address to the first website, referring to it again as a Super-injunction. This contained a number of inaccuracies not only about the current proceedings and the purpose and effect of the Orders that I had made, but also about the Claimant's occupation. This item also published the Claimant's identity, the financial allegations, and the sexual allegations (although saying that they were denied by the Claimant).
- The Claimant contends, and I find as a fact, that some of the information contained in this item must have emanated from the Second Defendant, including information about the First Defendant's contact with an MP: for example, the item gives an account (which is disputed by the Claimant's solicitors) of an incident arising out of their attempts to effect service at the First Defendant's home, which would not be widely known.
- A "super injunction" is not a term of art. It came into use following the litigation, involving Trafigura and the publishers of The Guardian, which is referred to in the Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice published by the Master of the Rolls in May 2011 ("the Report"). The term was used to refer to an injunction which prohibits, not only the publication of specified information, but also of the fact the injunction has been granted: The Guardian 14 October 2009 and the Report para 2.1. In 2010 and 2011 orders of this kind were the subject of a public controversy. They are (and have long been) granted, albeit rarely, in actions for breach of confidence (whether official secrets, commercial confidence or personal confidence), or for privacy. There has never been a super-injunction in that sense this action.
- As noted in the Report (para 2.1), the term "super injunction" has occasionally and confusingly been used to refer to an anonymity order (although anonymity orders are usually made independently of any injunction). The Second Defendant has sought to benefit from such confusion, because he made it appear that there was something novel and controversial about the Interim Injunctions in the present case, when in fact there was not.
- If the Second Defendant, or anyone else affected by the Interim Injunctions in this case, had wished to submit to the court that it ought to have been varied or discharged, they would have been free to do so. No one did make any such submission. Those newspapers which published articles about this litigation confined their observations to their editorial pages. They did not communicate to the court any concerns that they may have had, as they were entitled to do, through their lawyers.
- Two false or misleading statements in the press, parts of which the Second Defendant posted on the internet, included the following misstatements of fact. First, that the Claimant had been granted a super-injunction. This was patently false, not only because the Interim Injunctions were in each case in a public order, but also because there was my May 2011 judgment published on the internet. Another misstatement was that an anonymity order in a libel action was a novelty, whereas it is was not (see paras 47and 48 above). One of the articles wrongly stated that the Claimant could have had recourse to the criminal courts, and that if he had done so, he would not have been granted anonymity. It also stated wrongly that the Interim Injunctions were a contempt of Parliament.
- Further, any publication that suggests that there was, or might be, in this case a genuine family row or dispute about the Trust would be misleading, since none of the beneficiaries, and neither of the Defendants, has raised any real dispute: the case is purely and simply one of extortion.
- Later articles written by very experienced media lawyers did not include any misstatements, and correctly stated that there had been no super-injunction, but the Second Defendant did not post the link to these, or to the May 2011 judgment.
- The professional journalists who have written about this case in the national press may have mistakenly been concerned that there was being kept from the public something which it might have been in the public interest to know. But in a blackmail case, where the blackmailer is threatening to publish something he knows to be false, or does not believe to be true, there is no public interest in his allegations being disseminated. The public interest is that the blackmailer's allegations should not be published: that is both the public interest that the public should not be misinformed or deceived, and the public interest that victims of blackmail should receive the protection of the courts.
- The court does not just take at face value a claimant's allegation that he is being blackmailed. The court examines the evidence to support that, and it gives to the defendant an opportunity to dispute, or explain why, he has made the demands and menaces which the claimant alleges. In this case my May 2011 judgment sets out not only the reasons why I accepted that there was in this case convincing evidence of blackmail, but also the fact that the Defendants had chosen not to make any representations to the court.
- The press in performing its watchdog function is bound to look carefully at the procedures and decisions of the courts. The courts must be as much subject to legitimate public criticism as any other organ of the state. But the manner in which they report on the decision of the court in a case such as the present calls for particular care from responsible journalists.
- If journalists misrepresent the facts of the case, or what the court has included in a judgment or order, they run the risk of contributing to an injustice to the claimant, and of being manipulated by the defendant. If it turns out that the claimant can prove (as this Claimant has) that he is the victim of a blackmailer, then any inaccurate report may unwittingly have assisted the blackmailer in causing wholly unjustified damage to the Claimant. This is, of course, the opposite of what responsible journalists intend. Their concern in questioning derogations from open justice is a proper concern, namely that such derogations risk giving rise to injustice. So in addition to the general requirement upon professional journalists that their reports be accurate, this risk of causing injustice to a claimant is a further reason why accuracy is particularly important in reporting on such cases as this.
- The relevance of these observations to this case is twofold. First, as stated above, the unusual circumstance in this case that the Second Defendant has a history of defiance of the Interim Injunctions, misinforming the public as to what the action is about, and manipulation of the national press, supports the case that a permanent anonymity order is necessary. Secondly, the fact that the Interim Injunctions were inaccurately reported in major national newspapers may be relevant to my findings as to the number of readers the Second Defendant has been able to attract to his website publications, and thus to damages, as explained below.
THE NUMBER OF PUBLISHEES
- It is the experience of the courts that websites or blogs through which individuals pursue campaigns of vilification, or air grievances, rarely attract many readers. Recent libel actions involving blogs in which the number of hits has been investigated and found to be small include Mengi v Hermitage  EWHC 3445 (QB) para ) (the readers were very few, and Ms Hermitage was found to have a genuine grievance and succeeded in her defence of truth) and Thompson v James  EWHC 515 (QB) para  (where the numbers of publishees were in the low hundreds). Even in Jameel v Dow Jones  QB 946;  EWCA Civ 75 para , where the publications were on the websites of major American newspapers, the court found that the claimant was able to prove only 5 hits from within in England and Wales. And a website with a sporting following may attract only modest numbers of readers, as appears from Cairns v Modi  EWHC 756 (QB) (about 1000 readers where the publications was available for only a period of hours).
- So the extent of publication through the internet must be proved by a claimant. He cannot rely on a presumption, as a he can if the words complained of are published in a national newspaper. Publication of words from the internet can be proved by a establishing a platform of facts from which the tribunal can properly infer that substantial publication within the jurisdiction has taken place: Al-Amoudi v Brisard  EWHC 1062 (QB);  1 WLR 113 para . In some cases a claimant will adduce expert evidence, but that is not the only form of proof, and the Claimant has not adopted that form in this case. But if a claimant proves that there were a significant number of readers, the court must always have in mind the likelihood of republications by the original readers, however difficult it is to put a figure on these.
- The evidence in this case includes the following. A print out of a search on one of the well known search engines shows that there were two websites in the first ten hits which (in breach of the Interim Injunctions) identified the Claimant as the claimant in this action. It is common knowledge that, for hits to appear high up on the list produced by a search engine, it is likely that a significant number of searchers have searched and read the information that appears in the snippets. That print out was made some time ago, and Mr Spearman informs me that, with the passage of time, and following costly measures taken on behalf of the Claimant, more recent searches are less likely to produce hits that associate his name with this litigation. But the position could easily be reversed.
- Further evidence of re-publication is in a striking form. One of the Claimant's grown up daughters, in the course of a professional activity, was asked by a colleague whether the allegations about the Claimant were true. The colleague had conducted a search on the daughter, and come upon the material about the Claimant.
- Although the articles in national newspapers did not republish the words complained of, I think it probable that those articles attracted the attention of readers with the result that readers of the articles went on to search the internet for the Second Defendant's websites. There has been no other explanation suggested for why the websites identifying the Claimant should appear so high in the list of hits produced by the search engine. March and April 2011 (when the Interim Injunctions were granted and the articles published in the national press) was also the period leading up to the publication of the Report on super-injunctions. By falsely stating that the Claimant had obtained a super-injunction the Second Defendant attracted the articles in national newspapers which he would probably not otherwise have attracted. I infer that those articles which repeated that misstatement were likely to have attracted the attention of readers interested in the controversy on super-injunctions.
- Regrettably, some of these articles contained other inaccurate information about the proceedings (set out above), which might well have led people to search for the Second Defendant's websites when they would not otherwise have done so. If a court is alleged to have acted in a manner which major newspapers allege to be wrong, readers ought to take an interest. It would assist readers to avoid misunderstanding if newspapers were to print the hyperlink to he public judgment.
- In the absence of further evidence it is impossible to arrive with any precision at a figure for the number of persons who read the Second Defendant's publications on the internet.
- Doing the best I can I would estimate that it is probably in the hundreds and at most the low thousands.
ASSESSMENT OF DAMAGES
- The evidence before the court is in the form of witness statements from the Claimant himself and from his solicitor. The Claimant attended court ready to give evidence orally. But since the Second Defendant did not attend, there was no purpose in his formally entering the witness box.
- However, it is important to stress that the fact that the Second Defendant has chosen not to appear does not mean that this is a default judgment. It is not a default judgment. Nor was the judgment on liability. As I made clear in the ex tempore judgment I delivered on 30 July 2012, the Claimant is not relying on the presumption of falsity which the law makes available to claimants in libel actions. He has chosen, as is his right, to put before the court detailed evidence (positive evidence) in support of his case that the words complained of are entirely false, and of the damage and distress that he has suffered. I was satisfied that he had proved the falsity of the allegations, and I so stated in my judgment. If I had not been satisfied that the evidence on both falsity and damage and distress was true, I would not have contemplated making a substantial award of damages.
- I accept the evidence of the Claimant as to his great hurt and distress caused by the publications he has complained of. The allegations of dishonesty in financial matters go to the heart of his professional career in finance, where he has had responsibility for managing other people's funds. The sexual allegations go to the heart of his family life, and to the benevolent voluntary activities which also formed an important part of his life. It is well known that an allegation of being a paedophile is, in contemporary life, viewed as so foul that even the most categorical vindication does not prevent a person so accused of having his name permanently linked with the allegation. It is no doubt for that reason that the Second Defendant chose this allegation to make. Both the allegations are, of course, of serious criminal offences.
- Although there are eight publications pleaded in the Particulars of Claim, it is appropriate to make a single award of damages for defamation. And although there is a separate cause of action in harassment, since the harassment consisted in the making of the defamatory publications, it is not appropriate to make a separate award of damages for harassment.
- If a national newspaper had published the allegations complained of in the present case the damages would have been towards the upper end of the range in which a court can award in general damages for libel.
- The cases most closely comparable to the present case seem to me to be the two considered by the Court of Appeal in Cairns. In Cairns v Modi the allegation was match fixing by a very well known cricketer. This is an allegation comparable in gravity to the financial allegation against the Claimant. The number of immediate publishees of the defendant's tweet was taken to be 65 ( EWCA Civ 1382 para ). The court upheld an award of £90,000. It was made up of £75,000, with the addition of £15,000 for the manner in which the defendant had conducted the trial.
- In KC v MGN Ltd (a case of mistake, not deliberate falsehood) the allegation was of rape of a child, which is similar to the sexual allegation in this case. Although the publication was in a national newspaper, the article did not name the claimant and most of the readers who would have been able to identify the claimant would have known that the allegation was untrue. The Court of Appeal approached the case on the basis that there was very limited publication in a form that would have impacted upon the claimant's reputation ( EWCA Civ 1382 paras -). The Court considered that if the defendants in that case had behaved as Mr Modi had behaved in Cairns¸ and had published as widely as in Cairns, an award of £150,000 would have been inadequate. Given the early apology the Court adopted a starting point of £100,000 and reduced it by half to reflect the fact that the defendant had made an offer of amends.
- In my judgment, for the publications to the small number of publishees identified in the Particulars of Claim, the least sum necessary to compensate the Claimant for the injury to his reputation, and to mark the seriousness of the slanders and libels, is an award of £100,000. In addition, the aggravating factors in this case are particularly grave, and in order to compensate the Claimant for the distress and harassment he has suffered, the least sum necessary to compensate the Claimant is a further £20,000. There will thus be a single award of £120,000 damages to be paid by the Second Defendant to the Claimant.
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