Barron v Vines: How not to mitigate damages
Barron & Healey v Vines [2016] EWHC 1226 (QB)
Two Members of Parliament who brought a libel claim against an former UKIP councillor have been awarded £40,000 in damages each by the High Court. The judgment by Mr Justice Warby concerned only the assessment of damages following his judgment in July last year (covered in this blog post) which held that the defendant's statements were defamatory.
The case is an example of a defendant failing to effectively mitigate damages, and in this instance the defendant's purported attempts to mitigate actually became aggravating factors in part.
Background
Labour MPs Sir Kevin Barron and John Healey brought a defamation claim against the Mr Caven Vines, a UKIP councillor in respect of statements made by Mr Vines during a Sky News interview in January 2015. In the interview, Mr Vines alleged the claimants had known for years of the large scale sexual abuse of children in Rotherham, and that they were still failing to ensure the perpetrators were brought to justice.
In his judgment in July 2015, Warby J held that the natural and ordinary meaning of the words were that:
"(1) that the claimants knew for years most of what was going on by way of large-scale sexual abuse of children in Rotherham, and let it go on despite such knowledge; (2) that they thereby let down the children; and (3) that they were still failing to ensure that the perpetrators were brought to justice."
The first meaning was factual and the other two were expressions of opinion. The claimants did not claim in respect of the second and third meanings.
Summary judgment was granted for damages to be assessed.
The judgment
Warby J set out the key principles for assessing damages in defamation claims. As established in John v MGN Ltd [1997] QB 586 general compensatory damages will compensate a claimant for the damage to his reputation; vindicate his name; and take account of the distress, hurt and humiliation which the defamatory publication has caused
In assessing the level of damages to be awarded, the court will have regard to various factors, including:
- the gravity of the libel (the more seriously it touches the core attributes of the claimant's personality the more serious it is likely to be);
- the extent of publication;
- the identities of the publishes (publication to family or friends may be more harmful than publication to strangers);
- the claimant's role in society;
- the credibility of the publisher of the defamatory statement;
- whether the defendant published the defamatory statement maliciously;
- whether additional injury was caused by the defendant's conduct, such as persisting in the unfounded allegation that the libel was true or refusing to apologise;
- evidence of the scale and harm caused to the claimant's reputation; and
- the propensity of defamatory statements to 'percolate through underground channels and contaminate hidden springs', particularly with regards to social media and the internet.
Warby J applied these factors to the relevant facts. The allegations were serious and went to the core attributes of the claimant's personalities, namely their integrity and professional reputation. Mr Vines was also malicious in making the statements because he was aware that they were untrue.
The interview in which the defamatory statements were made was broadcast by an influential news channel and tens of thousands or at most hundreds of thousands are likely to have viewed it. Those who viewed the interview were likely to have included a substantial number of people in the Rotherham area, as well as others whose opinion of the claimants mattered considerably to them.
On the balance of probabilities, the allegations had 'percolated' beyond the immediate audience through social media and also by people speaking to each other by telephone or face to face. Warby J accepted the claimant's evidence that the allegations had led to a "hostile undercurrent" which was present throughout the 2015 election hustings.
Mr Vines challenged the claimants' evidence that their reputations had actually been harmed, particularly given that both claimants retained their parliamentary seats in the 2015 general election by increased majorities. However, Warby J accepted that it was impossible in fact to treat those election results as any evidence of a lack of harm to reputation, particularly given that many voters vote for the Party rather than the candidate. There was evidence that the interview (and also subsequent conduct of Mr Vines, see further below) had cause significant hurt feelings to both claimants.
Turning to mitigation, a defendant may substantially reduce damages by making an offer of amends under s.2 of the Defamation Act 1996 (the usual discount for a prompt and unqualified offer of amends is 30-50%). Mr Vines asserted that he had made a qualified apology by various communications in 2015. He replied to the claimants' letter before action in January 2015 stating that he wanted to "take the opportunity to clear up any misunderstanding". But in Warby J's view the letter "didn't clear up anything much".
Later in January an article was published in the Rotherham Advertiser (the readership of which is some 53,000) headed "UKIP Chief pledges to fight MPs' libel action" and recorded that Mr Vines "vowed to defend himself". The article went on to quote a statement by Mr Vines "to clear any misunderstanding" of his comments. In his cross-examination, Mr Vines appeared to characterise the article as a retraction. He did not deny that he had been accurately quoted in the article. Warby J believed that the article tended to aggravate rather than mitigate damages and certainly was not an apology or retraction.
In March 2015, Mr Vines wrote to the claimants' solicitors to make proposals "in an effort to settle matters". He offered not to say or publish that the claimants were aware of the scale of the abuse prior to 2012 (when the story first broke in The Times); to ask the Rotherham Advertiser to publish an agreed statement clarifying this and to pay £1,000 towards legal costs. He offered to mediate, if this offer was not agreed. Warby J held that the letter could not be characterised as offer of amends, it did not contain any clear offer to correct anything or offer to apologise or pay compensation as assessed if not agreed. The claimants had ignored this offer, but Warby J believed that they should have responded in an attempt to achieve something closer to their objectives.
However, whatever weight could be attributed to this point was considerably reduced by Mr Vines' subsequent conduct. Despite initially accepting the summary judgment he then attempted to apply to have it set aside three times, such behaviour being an abuse of process and which caused additional hurt feelings to the claimants. Further, the material in Mr Vines' witness statement and his statements in cross-examination involved attempts to establish to some extent that what he said in the interview was true.
Drawing together all the threads, the judge concluded that the appropriate award for each claimant was £40,000.
Comment
This case is a good example of how important an offer of amends or apology can be in circumstances where there are plainly no credible defences to a defamatory statement. Instead of taking stock and accepting that he lacked plausible defences, the defendant persisted in taking actions which served to aggravate more than mitigate. Although an offer of amends under section 2 of the Defamation Act 1996 must be made before service of the defence, an apology and retraction after service of the defence can still serve to mitigate some of the damages that a claimant may be awarded.