Riches v News Group Newspapers Ltd

Exemplary damages for newspaper libel may be considered where there is evidence that the publisher knew the publication was defamatory, or was reckless about that question, and published because the anticipated material advantage outweighed the likely penalty. Publication by a profit-making newspaper does not by itself suffice.

The jury must first assess total compensatory damages, including aggravation. It may increase that total only if it is inadequate to punish and deter. Where one publication injures several plaintiffs, the jury must determine the appropriate total punishment and distribute the exemplary element between them. The publisher must not be punished repeatedly by multiplying the appropriate penalty by the number of plaintiffs.

Ten police officers recovered £300 each in compensatory damages and £25,000 each in exemplary damages for a newspaper article reproducing allegations made by an armed and mentally disturbed man. The publisher did not challenge liability or the compensatory awards. It appealed against the exemplary awards, contending that there was insufficient evidence, that the jury had been misdirected and that the total award was excessive.

The plaintiffs cross-appealed, seeking a retrial of compensatory damages if the exemplary awards were set aside. The central questions were whether the second category of exemplary damages identified in Rookes v Barnard applied, how a jury should be directed where several plaintiffs claimed for one publication, and whether £250,000 in exemplary damages was an award which a reasonable, properly directed jury could make.

1. Disposition. The appeal was allowed and the ten exemplary awards were quashed. A retrial was ordered on exemplary damages alone. The verdict on liability and the compensatory awards remained in force, and the cross-appeal was dismissed.

2. Stephenson LJ, Parker LJ and Park J agreed that there was sufficient evidence to leave exemplary damages to the jury. The jury could infer that the editor knew the article was defamatory, or was reckless about that question, and nevertheless gave it maximum prominence because the expected commercial advantage outweighed the risk of damages. The article, its presentation, the editor's awareness of possible libel proceedings and the weaknesses in the asserted public-spirited explanation supplied the necessary evidential basis. Mere publication by a newspaper conducting a business for profit would not have sufficed.

3. The jury had not received an adequate direction on the exceptional nature and constituent requirements of exemplary damages. The judge had also failed to explain clearly that compensatory damages, including any aggravated element, must be assessed first. An exemplary element could be included only if that compensation was insufficient to punish and deter. References to the defendant's general conduct and failure to apologise created a serious danger that aggravating matters would be counted twice. The jury also required a warning to exercise restraint and a balanced review of the evidence bearing on the editor's knowledge and motive.

4. Per Parker LJ, in reasoning accepted as the proper approach to several plaintiffs, the jury should aggregate the individual compensatory awards, decide whether exemplary damages are legally available, and ask whether that aggregate sufficiently punishes the defendant. If it does not, the jury should determine the total sum required for punishment. The difference should then be divided equally between the plaintiffs and added to their respective compensatory awards. Each plaintiff must receive one undivided award.

5. The £250,000 exemplary total was independently unsustainable. It was grossly disproportionate to the £3,000 compensatory total and to the gravity and circumstances of the publication. It exceeded what any reasonable jury, properly directed, could have awarded.

1. Court of Appeal: Allowed the publisher's appeal, quashed the awards of exemplary damages and ordered a retrial confined to exemplary damages. The plaintiffs' cross-appeal was dismissed.
2. High Court, Queen's Bench Division: Comyn J entered judgment following jury verdicts awarding each of ten plaintiffs £300 compensatory damages and £25,000 exemplary damages. No citation for this decision is stated in the judgment.