Cooper & Anor v Turrell

In a defamation trial, the court determines the natural and ordinary meaning of the words complained of by applying a test of reasonableness. The court must reach its own conclusion, read the publication as a whole, and avoid strained interpretations. A recording of defamatory words left on voicemail is a libel because it is in permanent form. Qualified privilege is defeated where the publisher knowingly makes false allegations maliciously. Injunctive relief may be granted against a defendant abroad where the defendant remains subject to the jurisdiction and the order can operate effectively, subject to an appropriate jurisdictional proviso. Libel damages must compensate, vindicate reputation and reflect the seriousness and extent of publication. Damages for misuse of private information serve a distinct compensatory function, including injury to feelings and distress, and must avoid double recovery.

Three related actions concerned conduct by the former chief executive of a public company after his employment ended. One claimant alleged misuse of private information concerning his health. The company alleged breach of confidence in relation to a secretly recorded conversation involving directors and the company’s solicitors. Both claimants brought libel claims concerning voicemail, emails and internet postings.

Judgment had previously been entered for the claimants in default after the defendant failed to comply with orders. The present hearing assessed damages and considered injunctive, delivery-up and other relief in the defendant’s absence. The central issues were the meaning of the publications, the available defences, the appropriateness of an injunction, and the proper assessment of damages.

1. Meaning. The court applied the principles summarised in Jeynes v News Magazines Limited [2008] EWCA Civ 130. The governing principle was reasonableness. The hypothetical reader was neither naïve nor unduly suspicious, and the publication had to be read as a whole. The court rejected over-elaborate analysis and the relevance of the publisher’s intention. It reached its own conclusion that the meanings pleaded by the claimants were the meanings borne by the words.
2. Defences. A recording of defamatory words on voicemail was in permanent form and therefore constituted libel. The information disclosed in the secret recording was private and confidential, and was sufficiently particularised by identifying the contents of the recording. The defences based on public domain and qualified privilege failed. The evidence established falsity and malice, which defeated qualified privilege.
3. Injunction and delivery up. The claimants were entitled to injunctive relief after judgment in default as they would have been after a full trial. The defendant’s presence abroad did not prevent an injunction. Relevant considerations included his former submission to the jurisdiction, his compliance with an interim order, the absence of evidence that enforcement would be ineffective, and the possibility of notifying third parties within the jurisdiction. The injunction was to contain a proviso reflecting Babanaft International Co v Bassatne [1990] Ch 13. An order for delivery up of the original recording and copies was also sought.
4. Damages. In libel, the extent and seriousness of publication, and the relationship between publisher, publishees and claimant, were material. Publication to a small group in a professional relationship could be as serious as wider publication. Damages had to compensate and vindicate reputation; a merely symbolic award would not suffice. Corporations could recover substantial damages but not compensation for distress or injury to feelings. Misuse of private information had a distinct compensatory purpose, including distress and injury to feelings, and double counting was avoided. Awards of £30,000 and £50,000 were made to the claimants, with additional awards of £10,000 for breach of confidence and £30,000 for misuse of private information.

Further submissions were reserved on the form of the perpetual injunction and other relief.

The judgment itself states that Sharp J had entered judgment for the claimants in default on 21 June 2011, following the striking out of the defendant’s defences for non-compliance with an order requiring an address for service. The present court assessed damages and considered further relief.