Case Law: KC v MGN, an offer of amends assessment at the top of the scale

29 03 2012

The father of “Baby P” was awarded compensation of £75,000 under the “offer of amends” procedure.  Judgment in the case of KC v MGN Ltd ([2012] EWHC 483 (QB)) was handed down on 5 March 2012.  Although the case was based on the publication of serious allegations the number of publishees was small and the award appears to be at the top of the scale.  The defendant made an unsuccessful application to the judge for permission to appeal.

Background

The claimant was the father of Peter Connelly, known as “Baby P”, who was separated from the baby’s mother. In 2008 the baby’s mother, Tracey Connelly, and two men were convicted at the Central Criminal Court on a charge of causing or permitting the death of a child,. The claimant is a man of good character who played no part in the death of his child.

On 19 September 2010 the”People” published an article about Baby P’s mother which included the following:

“At just 16 she met the father of Peter – 17 years her senior – and the two were married in Haringey Civic Centre. Her new husband was a sex offender.”

Later in the article was the following paragraph:-

“Peter’s real father had also reappeared and had begun making frequent visits – something that would have set off alarm bells at Social Services as he had been convicted in the 1970s in Leicester for raping a 14 year old girl.”

A letter of complaint was written shortly after publication.  On 12 November 2010, MGN made an offer of amends under s. 2 of the Defamation Act 1996 and offered to publish an apology.

An apology was published on 21 November 2010.  However, no agreement could be reached on the appropriate level of compensation payable.  The case came before the court for a hearing for the assessment of compensation under section 3(5) of the Defamation Act 1996.

Judgment

It was common ground that when assessing compensation in an offer of amends case the judge should follow a two-stage process:

  • The first stage, identifying the figure which would be awarded at the conclusion of a hypothetical trial in which the defendant had done nothing to aggravate the hurt to the claimant’s feelings and nothing to mitigate.
  • The second stage involved considering  the extent to which  figure should be discounted to give effect to any mitigating factors of which the defendant is entitled to take advantage.  A significant reduction is to be made to take account of any actual apology and also of the very willingness of the defendant to use the offer of amends route (see Nail v News Group Newspapers Ltd [2005] 1 All ER 1040)

The Judge rejected MGN’s argument that the vindication by the offer of amends and apology should be taken into account at the first stage as well as the second [21].

In relation to the first stage, the claimant submitted that the appropriate starting point for damages was £200,000.  In contrast, MGN submitted that that the starting point should be £40,000 to £50,000.  It was argued that

“the impact of the libel was limited. …  very few people knew (or know now) that the Claimant was the father of Baby P, and thus the person wrongly accused in the article. There is no evidence of anyone having been led to believe that he was or even contacting him to ask, beyond his uncle and a few friends telephoning him on the day of publication. His friends know him as a man of good character. He was not old enough to have committed the offence of rape in the 1970s” [39].

This argument was rejected by the Judge.  The fact that two items of personal information printed about him in the article were true would have added fuel to the suspicion of anyone who knew him and read the article.

Bearing in mind the seriousness of the allegation, and the the fact that The People has a circulation of about half a million copies and an estimated readership of 1,200,000, the Judge took the view that the appropriate starting point was £150,000 [41].

The fact that “The People” had published a  clear, unqualified apology meant that a discount of 50% was appropriate.  This resulted in an award of compensation of £75,000 [46].  The correspondence and negotiations over the printing of an apology over a few weeks did not diminish the level of discount.

On the handing down of judgment, the Judge  refused MGN permission to appeal but put a stay on payment of £45,000 of the total amount being paid out until after the Court of Appeal decided the permission application.

Comment

This is the first “compensation assessment” in an offer of amends case since Bowman v NGN ([2010] EWHC 895 (QB)) in April 2010.  The basic approach is well-established.  The difficulty which arises in this case concerns the first stage of the assessment.

It is clear that libel damages must:

compensate [the claimant] … 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 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.” (see, for example, John v MGN [1997] QB 586 at 607).

The assessment of damages is subject to the “ceiling” on damages in defamation cases – which the the Judge suggests is now £256,000 ([26]) – although he noted that it was recently stated to be £230-240,000 in Al-Amoudi v Kifle [2011] EWHC 2037 (QB).

In other words, it might be thought that the most serious libels published to millions of people, requiring clear vindication and causing substantial distress should attract awards at the top of the scale and awards should then be scaled down accordingly.

In the KC case, the libel was very serious, however, there were powerful considerations in favour of a lower award at the first stage:

  • Most importantly, the claimant was not named and so the number of publishees who identified him as the subject of the libel was small.  Most of these would have known him personally and would probably have known that the allegations were untrue.  In other words, the actual damage to reputation would not have been extensive.
  • The need for vindication would been reduced both by the small number of publishees and the fact that an apology was made an early stage.
  • Although the libel was plainly distressing the distress would be less because of the small number of publishees.

In these circumstances the Judge’s “starting point” of £150,000 seems to be very high.   The point can be tested by asking what the appropriate figure would have been if the claimant had been named and the libel published to the 1.2 million readers of the “People”.  In such a case a starting point of, say, £250,000 might have been appropriate.   It might be thought that the fact that the damaging publication was made to only a small number of people merited a much more substantial reduction.

It is interesting that a similar issue as to the proper level of damages in respect of a very restricted publication arose in the recent Cairns v Modi case ([2012] EWHC 756 (QB)) where the same judge awarded £90,000 in respect of publication to 65 individuals.

We await an appeal in the KC case with interest.


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2 04 2012
Law and Media Round Up – 2 April 2012 « Inforrm's Blog

[...] Case Law: KC v MGN, an offer of amends assessment at the top of the scale [...]

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