Purnell v Business Magazine Ltd

A prior reasoned judgment rejecting a defence of justification may provide some vindication of a defamation claimant’s reputation. The tribunal assessing damages must consider its actual effect as part of all the circumstances. That effect will usually be marginal and may be negligible where the judgment followed a technical or summary process.

The earlier judgment does not automatically extinguish the vindicatory function of damages. The award may include the sum necessary to re-establish the claimant’s reputation, but must remain proportionate and no greater than necessary consistently with freedom of expression under article 10 of the European Convention on Human Rights.

The defendants appealed against a jury’s award of £75,000 damages for libel. Eady J had struck out their defence of justification because no reasonable jury could find that the claimant had bribed a journalist. He entered judgment for the claimant and left damages to be assessed.

At the damages trial before Gray J and a jury, the defendants continued to suggest that the bribery allegation had substance. Gray J directed the jury that vindication was a legitimate consideration, although it might deserve less weight than in a fully contested justification trial.

The sole issue was whether Eady J’s reasoned judgment had provided complete vindication, so that the damages could contain no vindicatory element, or whether its vindicatory effect was merely one circumstance in assessing the necessary award.

1. Appeal dismissed. A prior narrative judgment rejecting a defence of justification does not invariably exhaust the claimant’s entitlement to vindication. Nor must it invariably be disregarded. The tribunal assessing damages must determine what vindicatory effect, if any, the judgment actually had in all the circumstances.

2. General damages for defamation serve to compensate for injury to feelings and reputation and to vindicate or re-establish the claimant’s reputation. An award restricts freedom of expression under article 10 of the European Convention on Human Rights. It must therefore be proportionate and no greater than necessary to provide adequate compensation and vindication.

3. A reasoned judgment is capable of supplying some vindication and must be considered when deciding what further award is necessary. Its effect will generally be marginal. A public trial producing positive and unequivocal findings after the defendant’s evidence has been rejected may provide appreciable vindication. A technical strike-out involving no consideration of the merits may provide none. Publicity and the way the judgment was presented to the relevant audience may also affect its rehabilitative value.

4. The obiter reasoning in Associated Newspapers v Dingle [1964] AC 371, insofar as it required the assessment to ignore a reasoned judgment’s rehabilitative effect, was not accepted. Its concern to avoid separate tiers of damages for judge-alone and jury trials remained important, but did not justify ignoring a relevant circumstance.

5. Eady J’s decision followed examination of documents rather than a trial with witnesses and cross-examination. Moreover, the defendants subsequently disparaged that decision and attempted before the jury to maintain that the allegation was true. Although the earlier judgment provided some vindication, full vindication could properly require a damages award. Gray J’s direction permitted the jury to give the issue appropriate weight and implicitly required a proportionate award. The award of £75,000 disclosed no error.

1. Court of Appeal (Civil Division): The appeal was dismissed by Laws and Chadwick LJJ and Evans-Lombe J: [2007] EWCA Civ 744.

2. High Court, Queen’s Bench Division: Gray J conducted a jury trial limited to damages. The jury awarded £75,000.

3. High Court, Queen’s Bench Division: Eady J struck out the defence of justification, entered judgment for the claimant with damages to be assessed, and granted an injunction against repetition. No citation is stated.