Briefing 07 February 2017

Damages in defamation claims

Author:

Zainab Hodgson

Senior Associate
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Summary and implications 

In the case of Mir Shakil-Ur-Raman v ARY Network Ltd, Fayaz Ghafoor [2016] EWHC 3110 (QB), a well-known media magnate and the head of the largest media group in Pakistan succeeded in his defamation claim against his commercial rivals, with the court awarding the claimant substantial damages in the sum of £185,000. The judgment provides a useful examination and reminder of the assessment of damages in defamation cases.

Judgment in Mir Shakil-Ur-Raman v ARY Network Ltd, Fayaz Ghafoor

Background

The claimant complained that in 24 episodes of a programme produced by the defendants, the defendants had mounted a campaign of abuse and defamation against him. The claimant argued that the statements complained of portrayed him as:

  1. a traitor to Pakistan he was alleged to have conspired with foreign powers in an effort to damage the interests of Pakistan in return for payment;
  2. blasphemous;
  3. engaging in acts to obstruct justice by destroying or attempting to destroy evidence of a crime; and
  4. having made threats against the former Chairman of the Pakistan Securities and Exchange Commission.

The programmes were broadcast by the defendants in the UK.

How was the level of damages decided?

The court held that the statements were “clearly defamatory” and none of the statements were successfully defended. Moreover, the allegations in this case were described as “very serious”, going to the “core attributes of the Claimant’s personality”, and they had been extensively published to tens of thousands of viewers.

When calculating damages, the following points were made by the court:

  1. the Court stated that it intended to isolate the damage that flowed from the relevant broadcasts in this jurisdiction and it sought to compensate the claimant only in respect of those matters, given that there were other publications, in other parts of the world, which had caused the claimant damage;
  2. in addition, it took into account when assessing damages two separate “unfortunate” broadcasts that had been made by the claimant which appeared to add to the scorn and vitriol directed his way. Those broadcasts by the claimant were contemporaneous with some of the broadcasts made by the defendants and the court put to one side any damage caused to the claimant's esteem which were brought about by other allegations or publications which the defendants were not responsible for. It observed that in principle that was obviously the correct approach to take, however artificial the exercise might seem;
  3. further, it was critical of the defendants’ position of advancing no substantive defence to the claim, but, nevertheless, making no offer to withdraw their statements or apologise. Defences of truth and justification had been put forward, but, were ultimately struck out by the court, and those defences were held to be an aggravating element that was taken into account when assessing damages;
  4. finally, an added layer of complexity in this case was the “grapevine effect” that a television broadcast could have, as described by the Court of Appeal in Cairns v Modi [2012] EWCA Civ 1382, such that the allegations made in one broadcast can spread, by word of mouth or by means of social media, and cause corresponding damage to a claimant’s reputation. The court noted that it is legitimate to take that factor into account when attributing responsibility to a defendant and assessing damages.

Given the gravity and scale of the publications and the intensity with which the allegations were advanced, the court awarded damages in the sum of £185,000.

Remedies other than damages

Bearing in mind the court’s observations about the absence of substantive defences put forward by the defendants, this appears to have been an apt case for it to use its powers under section 12 of the Defamation Act 2013, requiring the defendants to publish a summary of the judgment to highlight further the falsity of the allegations.

The judgment records that the court was prepared to hear arguments as to whether it was appropriate to grant other remedies, including an order under section 12 of the Act. This demonstrates the court's awareness that a general damages award, on its own, no matter how high, may not always be sufficient to repair the harm caused to a claimant's reputation as a result of the defamation. In some cases, something more may be needed to vindicate the claimant's reputation.

Comment

Damages in defamation claims serve a dual purpose. Firstly, to compensate the claimant for the distress and loss that flows from the defamatory statement. Secondly, damages can be seen as symbolic, serving to vindicate the claimant’s reputation publicly and to mark the seriousness of the defamation.

Damages in defamation claims are “at large” as they cannot be calculated using an arithmetical formula or by adhering to a clear and objective standard. In assessing damages, the court can take into account various factors including the conduct of the claimant, the impact the libel has had on the claimant, the nature of the libel, its severity and how extensively the defamatory statements have been circulated.The motive and conduct of the defendant as well as the manner in which the claim has been defended may also be relevant when assessing damages. The above combined factors all played a part in the court's decision to award significant damages to the claimant in Mir Shakil-Ur-Raman v ARY Network Ltd.

There will clearly be different views as to whether the damages awarded to the claimant in Mir Shakil-Ur-Raman were too high or, perhaps even, too low. In that case, the court remarked that the level of the damages awarded should be sufficient to convince any fair-minded observer of the baselessness of the serious charges made against the claimant and to offer solace to the claimant in respect of the hurt and distress which had so clearly been caused.