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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wright v McCormack [2023] EWCA Civ 892 (26 July 2023) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2023/892.html Cite as: [2024] 2 WLR 869, [2023] WLR(D) 337, [2023] EWCA Civ 892, [2024] KB 495, [2023] EMLR 20 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
KINGS BENCH DIVISION
MR JUSTICE CHAMBERLAIN
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ANDREWS
and
LORD JUSTICE WARBY
____________________
DR CRAIG WRIGHT |
Claimant/ Appellant |
|
- and |
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PETER MCCORMACK |
Defendant/ Respondent |
____________________
Catrin Evans KC and Ben Silverstone (instructed by RPC LLP) for the Respondent
Hearing date: 15 June 2023
____________________
Crown Copyright ©
LORD JUSTICE WARBY:
Background to the appeal
The lies
The judge's reasoning on damages
"143. In a libel action brought by an individual, compensation is awarded for injury to reputation (objectively assessed) and for injury to feelings. Had it not been for Dr Wright's deliberately false case as to serious harm, a more than minimal award of damages would have been appropriate, though the quantum would have been reduced to reflect the fact that Mr McCormack was goaded into making the statements he did and, having found Dr Wright not to be a witness of truth, I would have rejected in its entirety his case as to the distress he claims to have suffered.
144. But the deliberately false case on serious harm advanced by Dr Wright until days before trial in my judgment requires more than a mere reduction in the award of damages. In my judgment, it makes it unconscionable that Dr Wright should receive any more than nominal damages."
"(a) Dr Wright advanced a deliberately false case as to the disinvitations from academic conferences in his Amended Particulars of Claim and his first witness statement. That case was designed to show that the Publications had caused serious harm, which is now an essential element of the tort of defamation. It was also relevant to the quantum of damages sought. These were both central issues in the claim.
(b) The case was maintained until shortly before the trial and, on my findings, would have been maintained at trial had Mr McCormack not served evidence from two of the organisers of the academic conferences from which Dr Wright said he had been disinvited after previously having had papers accepted following blind peer review.
(c) Dr Wright's response to this evidence was to change his case and withdraw significant parts of his earlier evidence, while seeking to explain that the errors were inadvertent. I have rejected that explanation as untrue.
(d) I have found that the Publications did cause serious harm without reference to the earlier deliberately false case as to the academic conferences. However, I am entitled to take into account my findings as to the earlier false case in assessing damages.
(e) As in Joseph v Spiller, I find that there would be no injustice if Dr Wright were to recover only nominal damages."
"47. Damages in defamation serve three functions: "to act as a consolation to the claimant for the distress he or she suffers from the publication of the statement; to repair the harm to reputation ; and to act as a vindication of the claimant's reputation": Gatley on Libel and Slander (13th ed., 2022), para. 10-004
48. As to distress, I indicated at [143] of my judgment that, having found Dr Wright not to be a witness of truth, I would have rejected in its entirety his case as to the distress he claims to have suffered. As to compensation for injury to reputation and vindication of reputation, I found that Mr McCormack's publications caused serious damage to Dr Wright's reputation at the time when they were made. But any damages would have been awarded at the date of my judgment. By that time, Dr Wright had been shown in a public judgment to have advanced a deliberately false case on an essential part of his claim and to have given deliberately false evidence on oath about it. The question of what award of damages was necessary to "vindicate" his reputation fell to be assessed on that basis. I found that there would be no injustice if he were to receive only nominal damages.
49. The analogy with other torts is, in my judgment, not a good one. Dishonest exaggeration of a personal injury claim does not lead to a reduction in the damages payable (Ul-Haq ), though in an extreme case it may entitle the defendant to strike out the claim, even after trial (Summers ). But damages in personal injury claims compensate for injury to interests which are unaffected by the dishonesty. The award needed to make good the injury suffered by a claimant with a broken leg is the same whether the claimant has been honest or dishonest. A libel claimant who has been found in a public judgment to have dishonestly advanced a deliberately false claim, on the other hand, may have so injured his own reputation that an award of substantial damages is no longer called for to vindicate it. Vindication has a moral element. If, as here, it would be unconscionable for a claimant to receive substantial damages, that is a good indication that damages are not required for the purpose of vindication."
The appeal
"In libel, uniquely, a guiding principle in the assessment of damages is that they should provide appropriate vindication of the claimant's reputation. The established rule, not challenged on this appeal, is that any relevant facts which properly emerge in the course of trial may go to reduce damages. In this case Dr Wright sought vindication in respect of allegations of fraud and mendacity. It emerged that he had conducted his case fraudulently and mendaciously. The right analysis could be that on the particular facts of this case it was necessary or at least legitimate for the judge to take these facts into account "
Assessment
Legal principles
"75. A person who proves they have been libelled is entitled to recover a sum in damages that is enough to compensate for the wrong suffered. The heads of compensation, and the key factors, were identified by Sir Thomas Bingham MR in John v MGN Ltd [1997] QB 586, 607608 (the numbers and letters are added by me):
"That sum must [1] compensate him for the damage to his reputation; [2] vindicate his good name; and [3] take account of the distress, hurt and humiliation which the defamatory publication has caused. A successful plaintiff may properly look to an award of damages to vindicate his reputation "
"76. Heads [1] and [2] can be seen as complementary or overlapping, because the overall aim of compensation is, as usual in the case of civil wrongs, to restore the claimant to the position they would have been in if the wrong had not been committed. Head [3] is parasitic on proof of harm to reputation "
In this case we are not concerned with head [3], injury to feelings. I shall return to the issue of vindication. I shall begin, however, by considering the narrower question of compensation for reputational harm.
" The tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection. Until 9 November 1994 when the newspaper published its first articles about him, the appellant's public reputation was unblemished. But he had in fact acted in a way in which no decent or honest footballer would act It would be an affront to justice if a court of law were to award substantial damages to a man shown to have acted in such flagrant breach of his legal and moral obligations."
At [54] Lord Hobhouse explained why the trial judge should have given the jury "a Pamplin direction":
"A Pamplin direction addresses the situation where a plaintiff is entitled to a verdict in his favour on the justification issue but the evidence properly before the jury on the issue of justification has disclosed that the reputation to which he is entitled is so depreciated that the damages which he should be awarded for the damage to his reputation by the (ex hypothesi) defamatory publication should be reduced below the level that would be appropriate for a plaintiff with an impeccable reputation, maybe even to a nominal figure."
(Again, I have added the emphasis to these citations).
(1) In FlyMeNow the libel was that the claimant had defaulted on its debts due to insolvency. The defendant failed to prove the truth of this imputation but did establish by way of partial justification that the claimant had "failed to pay its debts over many months, was perilously close to insolvency and was financially risky to do business with": [126]. In the attempt to prove insolvency, the defendant also "incidentally proved that the claimant behaved disgracefully by fobbing it off with a series of dishonest excuses": [127]. Further, the central element of the claimant's case was false, and its principal had supported that case with evidence he knew to be untrue. The first of these three matters reduced damages on the basis of the partial justification principle. The second and third matters served to reduce the award on the basis that they were disreputable facts properly before the court which ought to be taken into account in mitigation as "facts which go to a relevant sector of the claimant's business reputation, and show that it is undeserving of a sum which appear to the outside world to represent substantial vindication of its reputation.".
(2) In Dhir v Saddler [2017] EWHC 3155 (QB), [2018] 4 WLR 1 the claim was for slander in respect of the defendant's allegation that the claimant had "threatened to slit my throat". This was not so. The defence of truth failed. But evidence admitted on other issues showed that the claimant had been violent to his daughter and made other threats of violence against the claimant. Applying Pamplin and Turner, Nicklin J reduced the damages on this account, observing that "This conduct is in the same sector of his reputation as the allegation made by the defendant": see [119]-[120].
The judge's decision in this case
Campbell v News Group
(1) The decision in Campbell was that the "wholly disreputable conduct" of the claimant "established in the course of determining the issues in the litigation itself" was "relevant" (see [32]) as it went to the question of what damages the claimant would "merit" for a defamation that "could be shown to have injured his reputation" (see [33]). The reduction was required because it would be "an affront to justice" to do otherwise ([33]), when the claimant had "shown himself prepared" to engage in the misconduct I have outlined [119]. This language reflects that used in the authorities I have mentioned, and is not obviously inconsistent with the principles I have identified. It is the application of these propositions to the particular facts of the case that may appear unorthodox.
(2) That said, apart from citation of Pamplin and Lord Hailsham's dictum, the conclusions I have cited were not explained. The claimant was unrepresented. Campbell is an outlier in the jurisprudence. It does not appear to have been cited to the House of Lords in Grobbelaar or to this court in Turner. We know that it was not cited in Joseph or in the present case until after judgment had been given. It was not cited to me in FlyMeNow at any stage. In Dhir v Saddler, it was cited (see [99]) but not relied on by the judge, whose relied on Pamplin and Turner to reduce damages on the footing that the collateral misconduct was in the same sector of the claimant's reputation as the libel. In Riley v Murray [2021] EWHC 3437 (QB), Campbell was cited but distinguished: see [148].
Ul Haq and Summers
"17. I am unaware of any reported case in which a judge has dismissed the whole of a claim because he has found that the claim has been dishonestly exaggerated. The invariable rule is that, in those circumstances, the judge awards the limited damages which are appropriate to his findings. Of course, a claimant's credibility may be so damaged that he fails to prove any part of his loss, but if he proves some loss, he recovers that even though he has fraudulently attempted to recover far more.
20. . it is well established that a claimant will not be deprived of damages to which he is entitled because he has fraudulently attempted to obtain more than his entitlement."
Conclusion
LADY JUSTICE ANDREWS:
LORD JUSTICE SINGH: