England and Wales Court of Appeal (Civil Division) Decisions

Part 1. The facts and the history of the action.

The article

"ROCK superstar Elton John is hooked on a bizarre new diet which doctors have warned could kill him.

Millionaire Elton's weight has plummeted since he started eating food then spitting it out without swallowing.

The star, who suffered from the eating disorder bulimia, has told friends in America: `I am on the "don't swallow and get thin diet" and I can tell you it works.

I have got the best of both worlds. I get the flavour without becoming a blimp.'

But medical experts in Britain called on once-chubby Elton to give up the diet fad before it makes him seriously ill.

One said : `this is not a diet, it is another form of bulimia, and that can kill people.'

Victims of the slimming disease binge on food then force themselves to vomit.

ELTON, 45, revealed his latest craze at a Christmas party thrown by his manager, John Reid, at his Hollywood mansion.

Guests at the glitzy bash, attended by stars including L.A. Law heart-throb Corbin Bernsen, watched as Elton chewed party snacks, then disposed of them in his napkin.

He told revellers: `I love food. I love to eat, but what's the point of swallowing it? You can't taste it as it goes down your throat.'

The 5ft 6in star, who has been treated for drug, alcohol, and food addictions, boasted that his weight is almost down to 10 stone, adding: `I have finally got all my addictions under control.'

But one partygoer, who watched Elton spitting chewed shrimp and crab into his napkin said that the star looked tired and old.

`He was wearing a black turtle-neck jumper and a blazer that hung on him loosely. He didn't look well,' she said.

`He said he was no longer a bulimic, but he often enjoyed eating without actually swallowing.

The star joined Overeaters Anonymous when friends persuaded him to seek help about his constant bingeing.

He checked into a Chicago clinic on rock pal Rod Stewart's advice after ordering Chinese food and steak from a hotel's room service three times in one afternoon.

Last year he confessed he gorged himself on food then made himself sick for six years during `periods of intense distress'.

Elton, who had jetted into Los Angeles from London, was hugged on his arrival by old pal and manager, John Reid.

John told him: `You're too thin. You mustn't overdo this dieting thing, Elton. You look as though you need a good meal.'

Professor Hubert Lacey, who specialises in eating disorders at St George's Hospital Medical School in London, warned: `It is dangerous because the people who do this are abusing food.

It is likely to increase the problem for the bulimic, because by spitting out they are starving themselves.

Three or four hours later they could binge and then vomit.'

Paulette Maisner, who runs the Maisner Centre for Eating Disorders in Brighton, added: `Chewing food and not swallowing is one form of bulimia.

It will cause all sorts of psychiatric problems and will almost certainly lead to bingeing later. People die from bulimia, although it is not recognised as a cause of death.

They usually die of heart attacks or kidney failure because they become dehydrated.'

A spokesman for Elton said: `I don't know anything about this.'

But actress Darla Campbell, who chatted to Elton at the party, said: `He told me, There was a time when I ballooned up to 12 stone 2lb. and those were the unhappiest days of my life. I couldn't look in the mirror.''

Now the star says he is in great shape thanks to his support groups, including Alcoholics Anonymous and Overeaters Anonymous.

`But I was still amazed to see him spitting chewed shrimp into napkins' said Darla.

`Some people turned away politely when he did it, but Elton didn't seem embarrassed.'"

"FILE: Elton John /Sunday Mirror.

DATE: 24 December 1992

REF: FGP/WPS

_________________________________________________________________

Returning Mr. Paul Scott's telephone call.

Mr. Scott told me he was from the Sunday Mirror and they were thinking about running a story about Elton John but had been unable to contact anybody at John Reid's office. The story, which he said was based upon `usual reliable sources' in Los Angeles was that Elton John had an eating disorder and had been recently observed chewing food and spitting it out rather then swallowing it. Mr. Scott said it was obviously very bizarre behaviour. I said first of all that I did not know where Mr. Reid was at present, but that it seemed unlikely that his allegation was true, but no doubt he would be very careful. He said that his source was `very reliable', and I said that I successfully sue many papers who had first of all told me that. I wished him a Merry Christmas."

The correspondence.

"We have completed exhaustive enquiries into the matters raised in your letter of 29 December 1992.

We would ask you to accept our apologies for the delay in letting you have our substantive response. As you will understand, our enquiries have entailed reverting to sources in California and this has meant that they have taken somewhat longer than we expected. We hope that Mr. John will accept that this is, in fact, an indication that the Sunday Mirror has treated his complaint seriously and with great concern.

Our report was written in good faith relying on sources who attended the party referred to in it. Indeed, the article came from an experienced freelance journalist in Los Angeles whose information is normally very reliable. Even after rigorous and extensive cross-examination by representatives of the Sunday Mirror, these sources still remain convinced in their own minds that the person they saw behaving in the manner described in the article was Elton John. We are therefore happy that our sources were seeking to tell us what they genuinely believed to be the truth.

Be that as it may, the Sunday Mirror accepts Mr. John's word. In the light of his assurance that he did not attend the party (and, of course, did not behave in the manner described) the only possible explanation is that our sources must have made a mistake. In those circumstances we accept that the allegations published about Mr. John should not have been made.

We trust Mr. John will accept that all at the Sunday Mirror sincerely regret that he should have been hurt and embarrassed by the story: please accept our unreserved apologies on his behalf. I would like to publish an appropriate apology and retraction at the earliest opportunity and I now attach a draft which we have prepared on which I would appreciate your comments.

Further, we would be happy to participate in an agreed Statement in Open Court - we assume this is why you were instructed to issue proceedings in any event. Perhaps you would like to let us have a draft Statement for us to consider.

We are keen to bring this matter to an amicable and honourable conclusion as soon as possible. Notwithstanding the observation in your letter of 29 December, we feel sure that Mr. John will share our view that this is not, in fact, a case where `very substantial damages' would be appropriate. Nonetheless, as a mark of our sincerity and that of our proposed apology and in order that Mr. John should be spared the considerable inconvenience of attending Court to secure a sum of damages to vindicate his reputation, we propose that, in return for your client discontinuing his action:-

1. We pay the sum of [figure omitted] to any cause or charity which Mr. John may care to nominate, and look forward to hearing from him in this regard.

2. We publish an apology in an agreed form.

3. We join in, if your client so wishes, a Statement in Open Court.

4. We meet your client's reasonable indemnity costs.

We trust our offer will be accepted in the conciliatory spirit in which it is made, and we look forward to hearing from you at your earliest convenience."

"Elton John - Apology.

On 27 December 1992 the Sunday Mirror published an article headlined `Elton's `diet of death''. This was based on a freelance report of his purported attendance at a party given by his manager John Reid in Hollywood. Although it was published in good faith we are informed by Mr. John, and we fully accept, that he did not attend the party and accordingly our comments about his dietary habits were without foundation.

We apologise unreservedly to Mr. John for the distress caused by the article and we propose to make an appropriate donation to a charity of his choice."

"If your editor is prepared to admit that the article was a wholly invented piece of fiction which was irresponsibly published, then we may be able to make some progress".

"The headline, in itself, would be accurate if it referred to his self-confessed seventeen years of drug and dietary abuse which, if it had gone unchecked, must have brought his life to a premature close. Your client freely admits to the possession and use of illegal drugs and must be extremely fortunate not ever to have been prosecuted for such use".

The introduction of the claim for exemplary damages.

"(1) The plaintiff did not even attend the Christmas party hosted by Mr. John Reid at his house in Hollywood, which is referred to in the words complained of.

(2) Due to his familiar appearance and status as a celebrity, the plaintiff would be distinctly identifiable to persons attending social events in Hollywood. Contrary to the defendant's contention in correspondence, there can in the premises be no question of the persons who are professed by the defendant to be the source of the account of the plaintiff's presence at the said party (that is to say, other party-goers) having simply made a mistaken identification of the plaintiff. A prudent and easy way of verifying the accuracy and reliability of the account of the plaintiff's presence at the said party would in the aforesaid circumstances have been to contact either the plaintiff or Mr. Reid (or a member of the latter's staff) to enquire whether the plaintiff had been present at the said party.

(3) Notwithstanding the matters aforesaid, at no time prior to the publication of the said words did the defendant or anyone on its behalf contact (either adequately or at all) either the plaintiff or Mr. Reid (or a member of the latter's staff) to enquire whether the plaintiff had been present at the said party.

(4) In the premises the defendant published the said words recklessly, not caring whether they were true or false.

(5) The defendant further chose to give the maximum publicity to the said words by promoting them in sensationalist terms on the front page of the Sunday Mirror in the manner set out in paragraph 3 hereof.

(6) The defendant thereby employed the said words to attract members of the public to purchase the Sunday Mirror and it is to be inferred in the premises that the defendant published the said words on the calculated basis that it was likely to gain more financially from such publication than it would have to pay to the plaintiff if he sued and continued the proceedings to judgment."

The eve of the trial

(i) Mr Brenna's original draft article.

(ii) Some shorthand notes of Mr Scott with the telephone numbers of the offices of persons employed professionally by the plaintiff.

(iii) A tape of conversations between Mr Scott and two doctors, on or about 23rd December 1992.

(iv) The memorandum from Mr Brenna dated about 23rd December referred to above.

(v) An account dated 7th January 1993 of an interview between Mr Brenna and the two informants at the party, of which a tape was supplied to the plaintiff's solicitors on 1st November.

(a) original draft article prepared by Mr Brenna and destroyed on his computer by adverse weather on 20th December 1992;

(b) tape of pre-publication (together with transcript) of interview with the two sources by Mr Brenna.

The provenance of the article.

"Rock star Elton John's weight has plunged and his clothes are hanging off him thanks to a bizarre new habit of eating food then spitting it out.

Attending a Hollywood Christmas party given for him by his manager, John Reid, Elton was eating party snacks, then disposing of them in a napkin.

`I love food, I love to eat, but what's the point of swallowing it, you can't taste it as it goes down your throat, Elton explained to puzzled guests.

`I'm on the great don't swallow the food and get thin diet, I can tell you it works.'

Elton, 45 and 5ft 6ins tall, who has been treated for drug, alcohol and food addictions, said his weight had dropped to just over 10 stone - `and I've finally got all my addictions under control.'

But according to a TV reporter [name omitted] who watched Elton depositing chewed shrimp and crab in his napkin, he looked tired and old.

`He was wearing a black turtleneck and a blazer that hung on him loosely, he didn't look well', says Lisa.

`He said that he was no longer a bulimic, binging on food then rushing to the bathroom to vomit it up, but he often enjoyed eating without actually swallowing.'"

Elton, who had just arrived from London, was hugged on arrival by old pal John Reid, who commented:

`Oh, God, you look wonderful, but you're too thin. You mustn't overdo this dieting thing, Elton.

It's not good for you, you look as though you need a good meal.'

But that suggestion didn't please Elton according to actress [name omitted] who chatted with him.

`Elton told me, `there was a time when I ballooned up to 170 pounds - and those were the unhappiest days of my life ... I couldn't look in a mirror.'

Now Elton says he's in great shape, thanks to his various support groups: Alcoholics Anonymous and Overeaters Anonymous.

`But I was still amazed to see him spitting chewed shrimp into napkins,' says [name omitted].

`Some people turned away politely when he did it, but Elton didn't seem in the least bit embarrassed.

`He smiled and said: `I got the best of both worlds, darling, I get the flavour without becoming a blimp.'"

"With reference to Elton John bizarre eating habits story. Lisa Stanley attended the Christmas party given by Elton's manager, George Reid, personally with two of her friends and spoke to Elton John for more than half an hour. During that time he took a shrimp out of his mouth and put them in a napkin. This action was also witnessed by Lisa's fellow guest Darla Campbell, also at the party and quoted in the story. Both women know they are on the record. Stanley is now working as a television reporter for the American programme Hard Copy and has always been an entirely reliable source as far as I am concerned. I have her comments about the party on tape and in writing. Regards."

"So basically Darla started laughing and saying, my God what's he doing, - why swallow it darling, you cannot taste it anyway, so when it goes down you cannot taste it anyway. So he and Darla started laughing and we said oh what a great way to lose weight, and he said `precisely'. So then he said, I'm clean, I'm sober. .... I want to stay healthy, I don't want to overload - I remember what else he said, I don't want to overload my body with too much."

"... I mean they were calling him Elton John, well they weren't calling him Elton John, they were calling him Elton. ... Just the people in the kitchen. OK actually one guy kept coming up to him saying sir, would you like another coke?"

"I had never seen him ... that was my first time in person. Come on, I was born and raised in this town, in my life I have seen him in concert about a dozen times. I am not from the Boondocks. I mean he did look thinner than the normal Elton John, and he does have those hair things."

The trial

"You bear in mind, you remember, the plaintiff's case on this that he had had terrible problems in his life with his addiction to drugs, alcohol and his eating problems. He had determined to give them up and he had worked very hard indeed, and for a year he had done nothing and cured himself of these addictions which, he realised, had made his life terrible. He had attended a hospital in Chicago. He had attended frequent meetings at Alcoholics Anonymous, Narcotics Anonymous, Overeaters or Bulimia Anonymous. He told you he had been to something like 1,350 meetings in order to have himself completely cured. He had cured himself. He had gone on the David Frost show in order to publicise the fact he was a cured man and, at the same time, he said he hoped to help others who had similar problems. Because of that he told you it was particularly distressful for him when this article was published.

He told you of the circumstances in which the article came to his attention. He was at his home in Atlanta in America when his mother who had got the newspaper in England telephoned him. `She read the article out in full at my request' he said, "I was incensed, absolutely outraged. The most satisfactory thing I have done in my life is to admit my problems, the drugs and food and face up to it, and this article seemed to say I had problems," in other words, that he had failed to cure himself. Do take that into account in assessing the appropriate damages to award him as compensation for distress."

The summing-up and verdict.

The grounds of appeal.

(1) That the judge should have withdrawn the question of exemplary damages from the jury at the close of the plaintiff's case.

(2) That the judge misdirected the jury on the way they should approach the question whether they should award exemplary damages.

(3) That furthermore the sum awarded by the jury for exemplary damages was excessive in that no jury properly directed could have arrived at it as an appropriate sum.

(4) That the judge misdirected the jury on the question of compensatory damages.

(5) That furthermore the sum awarded for compensatory damages was excessive and unreasonable and incompatible with the award of the Court of Appeal in Rantzen -v- Mirror Group Newspapers (1986) Ltd.[1994] QB 670.

(6) That in any event the awards of both compensatory and exemplary damages were so high as to amount to a restriction or penalty upon the defendant's freedom of expression, and therefore contrary to Article 10 of the European Convention on Human Rights.

Part 2. The principles of law relating to damages in defamation

Introduction

Compensatory damages

"It was not even open to the judge, for example, to invite the jury to consider whether an award in one, two, three, four, five or six figures might be appropriate. This being the law, the inevitable consequence is that it is something of a lottery what sum a jury will award in an action for defamation..."

"I should add that this amount is in my judgment at the very top of the range for a slander of this kind, and is only appropriate because of the very grave and exceptional aggravating factors to which I have already referred. Had the slander remained within the confines of the waiting room and, still more, if the defendant had promptly apologised, the appropriate sum would have been a very small fraction of £50,000."

(a) Reference to awards by other juries in comparable actions for defamation.

(b) Reference to awards approved by the Court of Appeal or substituted by the Court of Appeal in accordance with RSC Order 59 rule 11(4).

(c) Reference to the scale of damages awarded in actions for personal injuries.

(d) Submissions by counsel as to the appropriate award coupled with some guidance by the judge as to the appropriate bracket.

Other awards in actions for defamation.

Awards approved or substituted by the Court of Appeal.

Reference to damages in actions for personal injuries.

"In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a by-stander of the baselessness of the charge. As Windeyer J. well said in Uren v.John Fairfax & Sons Pty. Ltd., 117 C.L.R. 115, 150 :

"It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a momentary recompense for harm measurable in money."

"...counsel made submissions on the extent to which it is proper to address the jury in speeches or in the summing-up on the quantum of damages. I need only say that although I think the law is in need of change, I shall have regard to the guidelines given by the Court of Appeal in Rantzen v Mirror Group Newspapers. I shall therefore not make any comparison with awards in personal injury cases. I shall invite the jury to consider the purchasing power of any award they make".

Reference to an appropriate award and an appropriate bracket.

"If the judge can mention figures to the jury, then counsel must be able to mention figures to them Once that happened, we get into the same trouble again. Each counsel would, in duty bound, pitch the figure as high or as low as he dared. Then the judge would give his views on the rival figures. The proceedings would be in danger of developing into an auction."

"Well, supposing I were to suggest a figure to you or a bracket. Supposing I were to say `if she succeeds what about giving her between so much and so much.' Well, there are two possibilities. One is that you would say that I was quite wrong and you would either give much more than I suggested or much less. Well now, can you imagine what would happen then? The party that did not like it: the plaintiff if you have given much less, or the defendant if you have given much more than I suggested, would be off the Court of Appeal saying `Well, look at that jury they were quite unreasonable. Here was this experienced judge suggesting a figure to them and they ignored it.' You can see readily how that would happen. Suppose you did give the figure or very close to the figure, that I suggested to you, well then you would have been wasting your time here on damages, you would simply be acting as a rubber stamp for me. ... So we look to you, as representatives of the public, applying the principles I have indicated, if you come to damages, to come to that figure."

Exemplary damages

" in a case in which a newspaper quite deliberately publishes a statement which it either knows to be false or which it publishes recklessly, careless whether it be true or false, ...."

"To bring a case within this category it must be proved that the defendant, at the time that he committed the tortious act, knew that it was unlawful or suspecting it [to] be unlawful deliberately refrained from taking obvious steps which, if taken, would have turned suspicion into certainty".

The European Convention

Part 3. Our conclusions on the summing-up and the awards of damages.

The compensatory damages.

"Against that, do treat matters in proportion, this upset and distress point. It is undoubtedly a form of very real hurt and distress to anyone to have their character defamed. In other words, it is certainly to be hoped that by the successful results of a libel action the matter will have been publicised and put right in the minds of most of the readers who read the original article. ... Bear in mind, therefore, in making any monetary award by compensation that it should be reasonable."

"When you have arrived provisionally at the figure check again against the value. What would you buy with your figure? What is it worth? Is it worth a compensatory holiday to forget the distress and hurt? If so, is it a weekend in Brighton or a long cruise? Would it purchase a motor car? If so, a fairly old car or a banger or a Rolls Royce or something like that?"

Exemplary Damages

(1) Was there sufficient evidence fit to be left to the jury that the newspaper published the article recklessly, not caring whether it was true or false, having regard to its state of mind and that of any relevant agent on 27th December? This involves consideration in particular of whether there was a duty to check, and if so, what was Mr Brenna's position and role vis-a-vis the newspaper, and what if any checks were carried out by Mr Brenna and/or the newspaper.

(2) Was there sufficient evidence fit to be left to the jury that the newspaper made the requisite calculation?

(3) Was the judge's direction under both these heads adequate?

(4) Was the "if but only if" test satisfied?

(5) Was the amount awarded manifestly excessive?

Recklessness.

Calculation.

The summing-up.

"Punitive damages can arise where the defendant deliberately commits the publication either knowing it is untrue or not caring whether it is true or false, and does so because he thinks he will profit by it; he made the calculation: "Well, it will help the circulation of our newspaper. He may sue. He may not. If he does not so much the better. If he does we will try to settle and get out as quickly as we can. If we cannot do that and it goes to court we still think that the total cost to us, adding everything, damages and the legal costs, all the lot, will still make it worth the gain for us to publish it. So we will go ahead."

(i) That he failed to direct them how they should determine whether or not the case was exceptional. We do not think he had any obligation to do so, and in any event he made it quite clear more than once that, even if the two main criteria were satisfied, the jury still had to consider whether in this case an award of exemplary damages was necessary. He closed his summing-up with these words:-

"Punitive damages are only rarely awarded. They are generally not encouraged by the court, but they are there for you to award and it is your decision very much whether you think this case is one of those rare cases which does so qualify and, if so, what should be done about it."

(ii) That he should have focused the jury's mind on the facts and matters pleaded in the amended statement of claim. In the upshot this is exactly what the judge did. If, contrary to our view expressed above, Mr Brenna's conduct and state of mind had been relevant, then this would have been a valid criticism, as also would have been the criticism that he failed to give the jury any direction on vicarious liability.

(iii) That he failed to give the jury any adequate direction in this context as to the relevant facts, in particular those relied upon by the newspaper that the story was plausible, that Mr Brenna was regarded as a reliable source, and that the two informants did actually attend the party. All these matters were fully canvassed in his summary of the facts to the jury, and we do not think it was necessary for him to elaborate them again in the specific context of exemplary damages.

(iv) That the judge misdirected the jury in telling them that the newspaper was a very large company with great means. Here it is not disputed that this could be a relevant consideration, but it is said that there was no evidence of its means. The precise direction on this point was as follows:-

"In a case of punishment, of punitive damages, you can bear in mind the means of the defendant because punishment clearly is affected by the means of the party paying. If you make an award which might badly hurt the ordinary man in the street it might be laughable to a large company with very great means. As the purpose of your award of damages is to punish for bad conduct and deter others, you should properly have in mind the means of the party who you are punishing. But having said that, I add again, do not because you may think the Mirror Group are very wealthy, go over the top on that account. Bear in mind always that you are to make an award which is reasonable."

If but only if.

The amount awarded.

Costs: MGN to recover one half of costs of appeal. Leave to appeal to the House of Lords refused.

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