England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MISS VICTORIA SHARP QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th April 2008

Lord Justice Dyson:

1. This is an appeal by the defendants, with the permission of Ward LJ, against the assessment of damages in a libel action. On 24 May 2007 Miss Victoria Sharp QC, sitting as a deputy judge in the High Court, assessed damages in the sum of £85,000 in respect of libels published in Turkish in three newspaper articles in a publication called Avrupa. Avrupa is a Turkish language newspaper which is published in this country by the first defendant and edited by Mr Oz, the second defendant. Proceedings were served on 18 August 2006. On 24 January 2007 judgment in default of defence was entered by Underhill J and an order made for the assessment of damages.
2. Mr Gur, the claimant, has been resident in this country for more than thirty years. He is a prominent member of the British Turkish community and he is well known for his charitable work with schools and mosques. He is the chairman of the Turkish-British Chamber of Commerce and Industry ("TBCCI") and a successful businessman. He is the owner and managing director of a substantial group of companies called the Gurman Group. In addition to his work with TBCCI, Mr Gur is on the committee of six non-governmental organisations.
3. Avrupa is one of five Turkish language newspapers published in this country. There was no evidence before the judge as to its exact circulation at the time of the libels, or at all. The defendants failed to respond to written requests by Mr Gur's solicitors for information about the circulation figures. Mr Gur told the judge that the newspaper had a "substantial circulation among the Turkish speaking community in this county". According to an email from the Turkish Embassy, produced on behalf of Mr Gur, the Turkish Embassy estimated that the Turkish population in this county is between 250,000 and 350,000 including Turkish Cypriots. Mr Oz declined to give evidence, but in argument claimed that the newspaper had a circulation of about 1500 copies per week. He did not produce the audited circulation figures which he said supported his evidence. The judge said that in these circumstances she was not prepared to accept Mr Oz's assertions. She accepted the evidence produced by and on behalf of Mr Gur that the readership numbers were in the thousands.
4. The libel. Two of the three articles in which Mr Gur was libelled were published in the edition of 20 April 2006. The first was a lengthy front page article which included the following in English translation:

"Avrupa asks 'Are you attacking the Federation for £6 million? Why was an invoice of £6 million issued for a £3 or £4 million building project? Who will get the rest?"

5. These words were accompanied by a prominent photograph of Mr Gur. The second article appeared on page 8. It included the following in English translation:

"The scene which Islamists yearn for, what is taking place in London, dismissal of Ambassador Altuna (Yigit Alpagon was appointed in his place) for the arrival of Bahadir Khalili in London as the Consul General. What is the connection with Remzi Gur's latest visit to Ankara to submit a £6 million London related building project to his close friend, Mr Tayyip [Erdogon, the Prime Minister of Turkey]."

6. The natural and ordinary meaning pleaded for these two articles was that Mr Gur had attempted to defraud the Turkish authorities in relation to a building project with which he was closely and publicly associated and/or had misled the Turkish authorities by falsely claiming that a building project worth only £3-4 million was worth £6 million. The third article had appeared on page 23 of the addition of Avrupa, which was published on 13 April 2006. It included the following in English translation:

"Dogs bark. Caravan keeps rolling. And Mustafa Koker, who works for Haber newspaper, and Remzi Gur, chairman of the Chamber of Commerce & Industry on the management board of the Foundation of Religious Affairs, you called the Federation a mere signboard association, so why didn't you do something about it? Working through the Foundation of Religious Affairs within the body of the Federation, perhaps you were too busy sharing out the £325,000 and other monies sent from Turkey's Religious Affairs Administration. Let us be clear, gentlemen. The candle of liar burns until nighttime. It is night… I hope I am making myself clear."

7. The natural and ordinary meaning pleaded for this article was that, in his dealings with the charity known as The Foundation of Religious Affairs, Mr Gur was motivated by a desire, improperly and unlawfully, to obtain for his own personal benefit part, at least, of £325,000 and other monies associated with the charity and that he did receive part of these monies. All three articles were also published on Avrupa's website. No attempt has ever been made by the defence to deny these meanings or to justify these libels.
8. The judge's assessment. At paragraph 16 the judge set out her approach to the assessment and damages in these terms:

"In essence, damages are compensatory and have as their threefold object vindication for the claimant and compensation for the damage done to his reputation by the libel or libels, and for the injury to his feelings caused by the libels. They must take account of any mitigating features and any relevant aggravating conduct on the part of the defendants, subject to the principle that damages can only be aggravated by reference to the conduct of the least guilty of two or more defendants sued. The notional ceiling for such awards is currently about £215,000 for the most serious libels with the worst aggravating features."

9. In the next paragraph she referred to paragraph 10 of the judgment of Eady J, in Tierney v Newsgroup Newspapers Ltd [2006] EWHC 3275:

"Libel damages have been scaled down in recent years so that it is widely reckoned that the maximum possible award would be in the order of £215,000 for the most serious libels, taking into account inflation and the impact on personal injury awards of the Court of Appeal's decision in Heil v Rankin [2001] QB 272."

10. The judge said that the allegations were serious, suggesting that Mr Gur was using his prominent position and contacts to line his own pocket, with a particularly offensive suggestion in the third article that, by doing so, he was depriving a charity of its funds. The first article, she said, was prominent, since it was published as the lead item on the front page and was accompanied by a large photograph of Mr Gur. The circulation was to the very community of which he was such a prominent member. It was therefore particularly damaging to his reputation where it mattered most. She then considered the matters relied on by Mr Gur in aggravation of the damages. First, the only response to the letter before action was a large front-page article with a prominent photograph of Mr Gur saying, "Bring it on". The article repeated the substance of the allegations made in the articles, which were the subject of the threatened litigation and, in effect, challenged Mr Gur to sue.
11. Secondly, Mr Oz had attended public meetings to draw attention to the article and had invited support for the defendants' attempt to crush Mr Gur. Thirdly, the application for a judgment in default had been met by an article published by the defendants, saying that they would never apologise. Fourthly, since the grant of the permanent injunction by Underhill J, the defendants had published advertisements in Avrupa which had reproduced the "bring it on" article. Finally, the defendants had never apologised.
12. The judge then referred to the suggestion by Mr Oz in oral argument that an apology had been proffered through intermediaries. The judge referred to a letter at page 115 of the bundle. She said that the letter appeared to be directed to the question of resolving the issue of costs. She did not accept that any apology had been proffered. At paragraph 24 she said:

"Mr Oz was also permitted, without objection from Mr Sherrell, to cross-examine the claimant in relation to matters, of which no previous notice has been given in this action, which Mr Oz said were relevant to damages. In cross-examination, Mr Oz then made a series of allegations against the claimant, apparently supported by material from the internet, which I do not propose to repeat. Suffice to say I am wholly unpersuaded as to their relevance and, in particular, as to their mitigation of damages under the Burstein principle. Nor am I persuaded that the matters undermine the evidence of Mr Gur as to his reputation within the jurisdiction."

The judge concluded her judgment by saying this:

"27. I propose to make one award for the three articles complained of. In deciding to do so, I take account of the fact that the articles all relate to the same sector of the claimant's reputation, that identical aggravation is relied on for each, and that the claimant's evidence as to the overall effect of the libels on him does not distinguish between the effect of the articles. What he complains of, naturally enough, is their overall presentation of him as using, in the words of Mr Sherrell, 'his prominent position and contacts to line his own pocket'.

28. In my judgment, having regard to all the matters to which I have referred, the sum that should be awarded in this case in relation to the three articles complained of is £85,000.

13. The grounds of appeal. There are seven grounds of appeal. The first six are different complaints about the assessment. The seventh is a complaint that, in breach of article 6 of the European Convention on Human Rights ("the Convention"), the defendants did not receive a fair trial. The six specific grounds of appeal are: 1) the damages awarded were excessive, disproportionate to the scale of awards approved by the Court of Appeal for personal injury awards and to the legitimate aim served by libel damages; 2) the damages far exceeded those that a reasonable jury could have awarded as being necessary to compensate Mr Gur and restore his reputation; 3) the judge misdirected herself in failing to have regard to the level of damages awarded for personal injury and the income and resources of the defendants; 4) the damages awarded breached Article 10 of the Convention because a) they were very substantial when compared with the modest income and resources of the defendants, and b) they were more than a reasonable jury could have awarded to compensate Mr Gur and restore his reputation; 5) the judge misdirected herself in failing to have regard to previous awards of damages in the Court of Appeal and in having regard to the award of juries; 6) the judge misdirected herself in failing to have regard to the decision of the European Court of Human Rights in Steel and Morris v United Kingdom [2005] EMLR 314, which requires the court to have regard to the publishers' income and resources in assessing damages in libel claims.
14. The seventh ground of appeal comprised particulars of six respects in which the defendants were denied a fair trial in breach of their rights under Article 6 of the Convention. Most of these have been abandoned, two remain. As Mr Crystal did in oral argument, I shall start with these. The first is that Mr Gur failed to provide his evidence and skeleton argument in sufficient time for the defendants to prepare for the trial. Paragraph 3 of the order made by Underhill J on 24 January 2007 required service of Mr Gur's evidence by 20 February 2007. Mr Gur's first witness statement and exhibits dated 13 December 2006 had already been served. His second statement and exhibits were served on or about 2 April 2007. The witness statement of Aynur Gokyildiz was served on 23 May. Mr Gur's skeleton argument was served on or about 22 May.
15. The trial started on 24 May. Mr Gur was present and represented by Mr Sherrell. Mr Oz did not appear until about one hour after the trial had started. During that hour Mr Sherrell took the judge through the articles and the evidence. Mr Gur then gave brief oral evidence to supplement his witness statements. He was then cross-examined by Mr Oz. Mr Crystal points out that no permission was obtained to rely on the witness statements of Mr Gokyildiz or the second witness statement of Mr Gur. He also complains that the transcript shows that the judge was shown an album of photographs which had not previously been part of Mr Gur's evidence. It is true that permission was not expressly obtained to adduce this evidence out of time, but no objection was taken to its admission and Mr Oz had read the witness statements. It is also clear from the transcript that he is an intelligent man with a good command of English. If he had been disadvantaged by the late production of the witness statements, I am confident that he would have told the judge. Even today, Mr Crystal cannot point to any prejudice caused to the defendants as a result of the admission of his evidence, nor is there anything in the point about the photograph album. This was looked at very briefly and added nothing to the substance of the witness statements (see transcript at page 194 in the core bundle).
16. The second criticism is that when Mr Oz arrived one hour late, after the trial had started, the judge failed to restart the trial. Again, Mr Crystal cannot point to any prejudice caused to the defendants by the judge's failure to take this course. The allegations that the defendants did not have a fair trial are wholly without foundation and in my judgment should never have been made. A reading of the transcripts shows that the judge was extremely fair to Mr Oz. She explained the process carefully to him. She offered him the opportunity to give evidence to support the assertions that he made in the course of his submissions and explained to him the difference between evidence and submissions and their significance. He declined the offer. In my view he had a fair trial and I would reject Ground 7 of the grounds of appeal. I now turn to the remaining grounds.
17. Although six grounds of appeal have been advanced they duplicate each other to a considerable extent. In substance the criticisms are that the damages awarded were excessive and disproportionate, in particular that the judge: (1) failed to have regard to awards of damages for personal injury; (2) failed to have regard to the income and resources of the defendants; and (3) wrongly had regard to previous decisions. I will take these three particular criticisms in turn.

Failing to have regard to award of damages for personal injury.

18. Mr Crystal submits that the judge failed to make what he calls a fair analogy with, and have regard to, the size of awards for general damages for personal injury. As is stated at paragraph 9.5 of the tenth edition of Gatley on Libel and Slander, until 1996 the attitude of the English courts was that damages for personal injury were not relevant to assessments in defamation cases and such awards could not be cited to jurors even in a general way. It is still the law that it is not possible to equiparate personal injury and defamation damages (see John v MGN Limited [1997] QB 586 at 613E) but it is now common to have regard to conventional levels of awards of damages for personal injury as a check on the reasonableness of a proposed award of damages for defamation. As Lord Hoffmann said in The Gleaner Company Ltd v Abrahams [2003] UKPC 55; [2004] 1 AC 628, at paragraphs 49-50, reference to awards in personal injury cases in defamation cases is controversial and is a matter on which different opinions may be held. At paragraphs 54 to 56 he identified significant differences between damages for personal injury and damages for defamation, which give rise to the difficulty.
19. Mr Crystal submits that damages for psychiatric injury would never be awarded in a sum even approaching £85,000. He says that £85,000 would be awarded by way of general damages for what he describes as grave and serious personal injuries. He gave examples of the kind of injuries which would attract such damages. I do not accept that it is appropriate to make detailed comparisons of this kind with a view to arriving at a figure which may be said to correspond with what would be awarded for a commensurate personal injury. The differences between personal injuries and damage to reputation are too great for such a detailed comparison to be made. It is, however, appropriate to have regard in a general way to levels of personal injury awards as a check for reasonableness. In my judgment that is what the judge did in this case.
20. I have already quoted paragraphs 16 and 17 of her judgment. What she described as the notional ceiling of £215,000 for the most serious libels, with the worst aggravated features, has been fixed inter alia by reference to personal injury awards. She did, therefore, have regard to the maximum that can be awarded in respect of general damages for personal injury and took that into account in arriving at her figure of £85,000. In my judgment that was appropriate and sufficient. There is no substance in Mr Crystal's first point.

Failing to have regard to the income and resources of the defendants

21. Mr Crystal submits that the judge erred in failing to take account of the defendant's ability to pay. He says that they have modest means. He relies on paragraph 96 in the judgment of the European Court of Human Rights in Steel and Morris v United Kingdom [2005] EMLR 314 for the submission that a defendant's ability to pay must be taken into account in fixing the amount of damages to be awarded for libel.
22. The first problem facing this submission is that there was no evidence as to the defendant's resources or income. Mr Oz did say in oral argument that their operation was very small scale. He also said that Avrupa was a very small newspaper and did not "have a budget to pay". But he refused to confirm this by giving oral evidence and he did not produce any documentary material to support his assertion. Nor did he say anything about the financial circumstances of himself or those of the first defendant, apart from the obscure reference to the newspaper not having "a budget to pay."
23. Mr Crystal sought to meet these difficulties by referring to two documents. The first is paragraph 19 of Mr Gur's second witness statement, where he said: "I believe the defendants will both claim to have no money and indeed it may prove difficult to enforce an award of damages against them." The second document relied on by Mr Crystal as evidence of the defendant's inability to pay is a letter purporting to bear the date 19 January 2007 from Mr Oz to Mr Gur's solicitors saying:

"I am writing with regards to the above named case and the £3000 which is due by 20 February 2007. Unfortunately as I, Mr Vatan Oz, stated in court on 23 January 2007, that I am unable to pay this amount and would like to know if there could be other options available."

24. In my judgment this comes nowhere near being evidence that the defendants did not have the ability to meet an award of damages of the amount awarded by the judge in this case. The first is no more than an expression of belief by Mr Gur about what the defendants would claim and nothing more needs to be said about that. The second, curiously and obviously wrongly dated 19 January, since it must have been written after the order made on 23 January, again is no more than an assertion from Mr Oz that he is unable to pay £3000. In my judgment that too does not amount to evidence, being no more than an assertion. Thus, in my view, the evidential foundation for the submission which Mr Crystal seeks to make under this head does not exist. I should say that our attention has been drawn to paragraph 33.28 of the second supplement to Gatley on libel and slander where the authors say:

"In addition to those listed in the Main Work the European Court of Human Rights would seem to have added an additional category [evidence in mitigation of damages], namely the means of the defendant."

The text goes on to refer to the decision of Steel and Morris v United Kingdom and the passage at paragraph 96 of the judgment, which says:

"Under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered… The Court notes on the one hand that the sums eventually awarded in the present case (£36,000 in the case of the first applicant and £40,000 in the case of the second applicant) although relatively moderate by contemporary standards in defamation cases in England and Wales, were very substantial when compared to the modest income and resources of the two applicants."

The text at paragraph 33.28 of Gatley goes on to say:

"If this is now to be regarded as the correct approach in English law, it would be appropriate and advisable in many cases for a defendant to lead evidence as to his means. However, it has been an axiomatic principle of the common law that in assessing damages for the commission of a tort, no regard is given to the means of the defendant, which is generally an irrelevance: 'It is also well settled that financial compensation (unlike any penalty) is to be awarded without regard to the parties' means', Eady J … If this fundamental rule is to be disturbed the consequences will be radical and far-reaching. It is suggested that practitioners should await an authoritative ruling from an English court on the effect of Steel & Morris -- which may be explained as applying only to exemplary damages -- before preparing cases for trial on the basis that evidence of the defendant's means would be admissible as relevant to damages."

25. In view of what I have said about the lack of any evidential basis for this submission by Mr Crystal anything said on this subject, would be obiter. It seems to me, however, that if it is to be said that Steel and Morris v the United Kingdom requires a change to a fundamental and long established principle of our law -- that the means of a defendant are irrelevant to the assessment of damages for a tort -- that change can only be made by the House of Lords. I would therefore reject Mr Crystal's second point.

Wrongly having regard to previous decisions.

26. Mr Crystal submits that the judge had regard to awards of damages for libel given by juries in previous cases and that she should not have done so. The skeleton argument on behalf of Mr Gur in the court below referred to three previous decisions. These included Veliu v Mazrekaj [2002] EMLR 43, which was a fully reasoned decision of Eady J sitting without a jury, and Purnell v Business FI magazine Limited (unreported), where a jury awarded £75,000. The judge made no reference to either decision in her judgment. During the course of oral argument Mr Sherrell referred to the passage in his skeleton argument where he briefly discussed these cases. It is clear from the transcript that Mr Sherrell did not place much reliance on them. At page 33 of the first day's transcript the following exchange took place:

"MR SHERRELL: My lady, in terms of quantum, moving on to paragraph 10 of my skeleton argument, of course in the confines of a jury trial it would not be customary to refer to previous cases by way of an analogy. Each case should be judged on their own facts. I am in your hands today as to whether you would like me to show you some recent authorities, one in particular which is Mr. Justice Eady sitting alone, which I say can be used if nothing more as a form of bracket. If you wish me to I am happy to address you. -----

THE DEPUTY JUDGE: Which case is that?

MR SHERRELL: That is…

THE DEPUTY JUDGE: It is a matter for you which authorities you wish to refer me to. I am familiar with that case.

MR SHERRELL: Yes.

THE DEPUTY JUDGE: I can see that there are some small, potentially at any rate, similarities. Each case does depend on its own facts and on the nature of the allegations that are made."

27. In view of this exchange and the fact that the judge made no reference to either of these earlier decisions, it seems clear that she had little or no regard to them in arriving at her figure for damages. As was explained by Lord Hoffmann in Gleaner, in order to accommodate the requirements in Article 10(2) of the Convention that restriction on freedom of speech should be "prescribed by law", awards for damages must be more controlled and predictable than they previously were. Rantzen v MGN [1994] QB 670 therefore made two changes to the law, one of which was that juries should still not be told of awards made by other juries but could be referred to awards made by the Court of Appeal in the exercise of its new powers. Neill LJ said at page 694 that over time the decisions of the Court of Appeal would provide a corpus to which reference could be made and which could provide a norm. As Ms Edhem says in her skeleton argument, the reasons why comparison should not be made with other jury awards is that they are likely to confuse and waste time rather than assist a jury. In Kiam v MGN Limited [2003] QB 281 at paragraphs 55 to 56, Simon Brown LJ suggested that, generally speaking, reference to comparables should be avoided and detailed guidance on figures should be left to the judge.
28. I can, however, see no reason why a judge or jury should not be able to take account of previous awards made by a judge, which will be reasoned and often are fully reasoned. Like the decisions of the Court of Appeal, so too awards made by judges sitting alone can provide a corpus to which reference can be made. I accept the position is different in relation to previous awards of juries. In the present case, it is clear that, if the judge took into account any previous award in the present case, it was the award made by Eady J without a jury in the Veliu case. As I have said, there is no reference to that or any other previous award of damages in the judge's judgment and in my view it is clear that she had little or no regard to any previous awards in arriving at her figure. I would therefore reject Mr Crystal's third point.

Conclusion.

29. For the reasons that I have given I reject each of Mr Crystal's particular submissions. In my judgment the award of £85,000 was not excessive or disproportionate. The judge considered the facts carefully and applied the correct principles. She was right to characterise the libels as serious for the reasons that she gave and to place particular weight on the several aggravating features that she identified. It is true that the circulation of Avrupa is modest, especially when compared with that of national newspapers in this county, but such serious libels were particularly damaging to a leading member of the community in which he lived and worked. I would dismiss this appeal.

Lord Justice Tuckey:

30. I agree.

Lord Justice Buxton:

31. I also agree. I would venture to add merely two footnotes to what my Lord has said. First, the Deputy Judge correctly directed herself to attend to the principles laid down by this court in the case of Jones v Pollard [1997] EMLR 233. Those, in summary, and in their relevance to the case before her, are as follows. First, the objective features of the libel itself such as its gravity and its prominence. My Lord has explained these were indeed serious libels. No attempt whatsoever has been made in these proceedings to defend them and they were published to a community of which the claimant was and is a prominent member. They were very damaging to him.
32. Secondly, the effect on the plaintiff's feelings, not only from the publication but from the defendant's conduct thereafter, both up to and including the trial itself. Not only were these libels published on a repetitive basis on three occasions but the judge found as a fact, in paragraph 22, that an aggressive, indeed impudent, attitude had been taken by the defendant as to his responsibilities. She said at the end of that paragraph:

"Rather than…defending the action in court, [the defendants] have chosen to adopt an unapologetic attitude of defiance towards the claimant in the relation to his bringing of this action and his pursuance of it."

33. Three, matters tending to mitigate damages, such as the publication of an apology. There was no apology in this case. An attempt was made to suggest that such apology had been offered through intermediaries. The judge in paragraph 23 rejected that evidence.
34. Four, matters tending to reduce damages, such as evidence of bad reputation. There is no such evidence in this case. It is regrettable that when he was permitted by the judge to cross-examine the claimant in the proceedings before her Mr Oz sought to ventilate allegations that were not supported by any evidence and which should not have been put in that medium. It is, I have to say, even more regrettable that there was some inclination in the conduct of this appeal to try to suggest that this court should start looking at such evidence, which had never been before the judge and had never been mentioned in the Grounds of Appeal and is completely irrelevant to the issues before us.
35. Five, special damages. They do not arise. Six, vindication of the plaintiff's reputation both past and future. That is an important factor in this case in view of the Turkish community in which all this matter took place.
36. All those factors (the judge had referred to the list in Jones v Pollard, which she did not need to do, for reasons my Lord has indicated) would amply underline the view that she undoubtedly took, that this was an extremely serious matter.
37. Secondly, in relation to comparison with awards and personal injury cases, I would say only one thing. In the skeleton argument, reliance was placed on the judgment of Sedley LJ at paragraph 70 of Kiam v MGN Limited [2003] QB 281 in which the Lord Justice does appear to have supported the idea of direct comparison, as it were pound for pound, between particular instances of personal injury and the facts of the case of defamation. The skeleton argument did not say that that was a dissenting judgment. In that case, as my Lord has said, Simon Brown LJ did not take that view and Waller LJ, in particular, referred to Sedley LJ's argument, acknowledged the potential general force of it, but said that he did not adopt it:

"The verdict of a jury properly directed should not lightly be overturned in the Court of Appeal"

38. We are faced, not with a jury verdict which is inscrutable and therefore approached with caution, but with the reasoned determination of a deputy judge who is an acknowledged leader in this field with seven years standing as leading counsel in defamation matters. I would be very cautious before interfering with the judgment of such a tribunal. As I have already said, there are ample grounds for saying that the award made by Ms Sharpe - although it was, I agree, a substantial award - fell well within the ambit of her proper judgement, looking at all the factors in this case.
39. For those reasons, therefore, added to those stated by my Lord, I also would dismiss this appeal.

Order: Appeal dismissed.