Kiam v MGN Ltd

On an appeal against a jury award of libel damages, the Court of Appeal asks whether a reasonable jury could have thought the sum necessary to compensate the claimant and re-establish the claimant’s reputation. A substituted award is not the judges’ uninfluenced estimate. It is the highest sum which any reasonable jury could have awarded. The court must give substantial weight to the jury’s assessment and to the trial judge’s bracket, while using appellate comparables and personal-injury awards as guidance rather than as a fixed tariff. Intervention requires the award substantially to exceed what any reasonable jury could sensibly regard as appropriate. The majority dismissed the appeal against £105,000.

Following a five-day libel trial before Moore-Bick J and a jury, judgment was entered for Victor Kiam for £105,000 in aggravated compensatory damages. MGN Ltd appealed on quantum, arguing that the award was excessive. The judge had directed the jury that an award below £40,000 might not reflect the seriousness of the libel and that an award above approximately £75,000–£80,000 might be excessive. The sole issue before the Court of Appeal was whether the jury’s award was excessive and, if so, what sum should replace it.

Majority: Simon Brown LJ, with Waller LJ agreeing. The appeal was dismissed.

1. Under section 8 of the Courts and Legal Services Act 1990, and the relevant rules of court, the Court of Appeal may substitute a sum only where it already has power to order a new trial because the jury’s award is excessive. The governing question is whether a reasonable jury could have thought the award necessary to compensate the claimant and re-establish his reputation.
2. The proper substituted award is not the court’s own uninfluenced estimate. It is the highest sum which the jury could reasonably have thought necessary. The appellate court must take proper account of the jury’s attitude and must show particularly substantial deference to a libel jury, having regard also to the trial judge’s advantage in hearing the evidence and observing the trial.
3. The approach in Rantzen v Mirror Group Newspapers [1994] QB 670 and John v MGN [1997] QB 586 permitted more searching scrutiny and the use of appellate awards and personal-injury awards as pointers. Those materials did not create a tariff or remove the jury’s evaluative function. A judge’s bracket was not sacrosanct, but it was relevant and reflected the judge’s assessment after hearing the case.
4. The suggested bracket of £40,000–£80,000 was reasonable. Although the jury’s award exceeded its upper end, it was not substantially out of proportion to what could sensibly have been regarded as appropriate, particularly in view of the aggravating features and the increased personal-injury ceiling following Heil v Rankin [2000] 2 WLR 1173. The award should not thereafter be treated as a true comparable.

In an obiter postscript, Simon Brown LJ considered it preferable for brackets to be fixed after formal submissions on authorities. Counsel should not ordinarily conduct a detailed battle of comparables before the jury, and detailed guidance on figures should generally come from the judge.

Dissent: Sedley LJ. He would have allowed the appeal. He considered £105,000 wholly excessive, regarded the bracket as unrealistically high, and argued that compensatory damages should not be inflated to deter publication. Wilful or reckless conduct should aggravate compensation only so far as it worsened the claimant’s injury; punishment belonged, if appropriate, to exemplary damages. He considered that the tension between compensation and deterrence required legislative resolution.

1. High Court of Justice (Queen’s Bench Division). Following a libel trial before Moore-Bick J and a jury, judgment was entered for the claimant for £105,000 on 10 March 2000.
2. Court of Appeal. The appeal on quantum was dismissed by a majority in [2002] EWCA Civ 43. Sedley LJ dissented. Permission to appeal to the House of Lords was refused.