Defamation Damages – Assessment of Damages in High Value Cases:
The recent case of Mohammed Hussein Al-Amoudi v Elias Kifle [2011] EWHC 2037 [QB] was a useful case illustrating the assessment of defamation damages in cases were the allegations are of a very serious nature. The Claimant was an international businessman who was born in Ethiopia but then moved to Saudi Arabia. He is one of the richest businessmen in the world.
The Defendant was the editor of the Ethiopian Review, which is an Internet news site. The case concerned the publication of an article which the Court held had the following meaning:
- The Claimant disgracefully and callously married off his thirteen year old daughter, Sarah to an elderly and disabled member of the Saudi Royal family as a gift;
- There were reasonable grounds to suspect the Claimant having knowingly financed international terrorism;
- The Claimant was probably responsible for the murder of the (supposed) long term lover of his daughter and the mutilation, burning, parading and hanging of his body;
- The Claimant was hunting his daughter and his (supposed) grand daughter across London in order to ensure their execution in Saudi Arabia by flogging, stoning to death or otherwise.
The case gave a useful review on the award of general defamation damages for libel. The Judge said that the award of general damages for libel serves three functions:
- To act as a consolation to the Claimant for the distress and embarrassment for which he had suffered from the publication of the defamatory words;
- Compensate for the injury to his reputation;
- To act as vindication for his reputation.
The Judge referred to the overriding principle in Article 10 of the European Convention of Human Rights that any award of damages must be proportionate to the legitimate aim of compensating the Claimant for the injury and distress which is suffered and providing him with his vindication.
The Judge referred to the case of Broome v Cassell [1972] [AC] 1027 where Lord Hailsham stated:
“Not merely can (the liable plaintiff) recover the estimated of his past and future losses, but, in case of libel, driven underground, emerges from its lurking at 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”
The Judge said vindication was the single most important consideration for the Claimant.
He referred to some cases were vindication by reasoned judgment such as in the case of Purnell v Business Magazine Limited [2008] [1WL] where a pre-narrative judgment was given rejecting a defence of Justification. The Judge however referred in the case to other cases where a defence of Justification had been struck out and the Court had not given any meaningful consideration to the merits. In this particular case the judge was giving a reasoned judgment and assessing damages after judgment had been entered in default. In this case because it was not a contested decision and because the Defendant continued to assert the truth in the allegation he had made the judge didn’t consider that the effect on damages of any vindication in his judgment would be marginal.
Considering the level of damages the judge referred to factors that would affect that level including position and standing of the Claimant, the gravity of the allegation in particular as it touches his personal and … business reputation. The Judge referred to an excerpt from Bingham MR in John v MGN (1997) QB 586.
In that case the Judge said that the sum was to compensate for the damage to his reputation, vindicating his good name “and to take into account, hurt and humiliation which the defamatory publication has caused. The Judge went on ….the most important factor is the gravity of the libel; the more closely it touches the plaintiffs 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 the publication was also a factor. If the article had been published to a million people as apposed to just a handful then that would have an affect on the damages awarded.
The Judge considered that it would be difficult to imagine a more serious libel and considered that the upper region of damages for such a case referring back to the case of Lillie v Newcastle City Council [2002] EWHC 1600 were an award was made by Eady of £200,000 having regards to inflation the maximum ceiling was to be in the region of £230,000 -£240,000 the judge awarded a figure of £175,000 and said that the damages had been aggravated by the Defendant’s conduct. His decision to publish the article, refusing to apologise or defend the claim and repeat the libels on his own website.
The case provides a useful tool in the assessment of how damages are to be decided in such cases. It also provides useful assessment of how an online publication abroard can still affect a Claimants reputation in this country provided that the Claimant can show such an effect in evidence.