GUR v Avrupa Newspaper Ltd & Anor

In libel damages, personal injury awards are not a pound-for-pound comparator. They may be used only in a general way as a check on reasonableness. The assessment remains compensatory and turns on the gravity and prominence of the libel, its effect on feelings and reputation, aggravating or mitigating conduct, evidence of bad reputation, special damage and vindication. Reasoned awards by judges sitting alone may form a useful corpus, but jury awards should not be used as comparables for a jury. A defendant relying on inability to pay must provide evidence. Serious libels may justify substantial damages despite modest circulation where publication reaches the claimant’s professional or social community.

The defendants appealed against a Queen’s Bench Division assessment of £85,000 damages for three Turkish-language libels published in Avrupa newspaper and on its website. Default judgment had been entered after the defendants failed to defend the claim. The articles alleged that the claimant had sought personal financial benefit from public and charitable funds. The appeal challenged the amount of damages, the treatment of personal injury awards, the defendants’ means, previous awards, and Articles 6 and 10 of the European Convention on Human Rights. The central issues were whether the assessment was excessive or disproportionate and whether the trial had been fair.

Appeal dismissed. Dyson LJ gave the leading judgment, with Tuckey and Buxton LJJ agreeing. The £85,000 award for three serious libels was not excessive or disproportionate.

1. Fair trial. Complaints about late evidence and the second defendant’s late arrival did not identify any prejudice. The deputy judge explained the process, offered the opportunity to give evidence and conducted a fair trial. The complaint under Article 6 of the European Convention on Human Rights was rejected.
2. Personal injury comparators. Defamation damages cannot be equated with personal injury damages: John v MGN Limited [1997] QB 586. Detailed comparisons are inappropriate because the injuries are materially different. General levels of personal injury awards may nevertheless be used as a reasonableness check, consistently with The Gleaner Company Ltd v Abrahams [2003] UKPC 55; [2004] 1 AC 628. The deputy judge had made sufficient use of that general check.
3. Means. The defendants produced no evidence of their resources. Assertions about inability to pay did not establish an evidential foundation. The court declined to accept that Steel and Morris v United Kingdom [2005] EMLR 314 required consideration of means. Any alteration of the long-established common-law principle that a defendant’s means are irrelevant to tort damages would, in any event, have been a matter for the House of Lords; observations on the issue here would be obiter.
4. Previous awards. Article 10(2) of the European Convention on Human Rights requires greater control and predictability in defamation awards. Under Rantzen v MGN [1994] QB 670, jury awards should not be given to juries as comparables, whereas Court of Appeal awards may form a corpus. Reasoned awards by judges sitting alone may also be considered. The general caution against comparables in Kiam v MGN Limited [2003] QB 281 did not prevent that distinction. The deputy judge had made little or no use of previous awards.
5. Assessment. The compensatory purposes of libel damages include vindication, compensation for reputational harm and injury to feelings. The relevant factors included gravity and prominence, effect on feelings and subsequent conduct, mitigation, bad reputation, special damage and vindication, as summarised in Jones v Pollard [1997] EMLR 233. The prominent publication, serious allegations, absence of apology, defiant conduct and importance of the claimant’s Turkish community justified the award. The Court of Appeal was cautious about interfering with the reasoned assessment of an experienced defamation judge where the award fell within the proper range.

Order: appeal dismissed.

• Court of Appeal (Civil Division): [2008] EWCA Civ 594. The defendants’ appeal against the £85,000 assessment was dismissed.
• Queen’s Bench Division (Miss Victoria Sharp QC): On 24 May 2007, damages of £85,000 were assessed for three libels after judgment in default of defence. The assessment was upheld on appeal.