Scottish Court of Session Decisions

[1] There are three actions of defamation at the instance of five members of a single family against the British Broadcasting Corporation and against Sandra McCulloch and Catherine O'Hare, two ex employees of a Nursing Home known as Orchard House, situated at Crossford near Carluke arising out of the broadcasting of a programme under the title of "Frontline Scotland" on national television on 9 March 1995.

[2] The first to fourth pursuers are, as partners, proprietors of a Nursing Home. The fifth pursuer was employed in the family business at the material time.

[3] The programme was concerned with the way the home was run and made a series of allegations, mostly through the medium of the two ex-employees and was severely critical in specific detail as to the way the home was run. After hearing a proof Temporary Judge Coutts, Q.C. rejected the defence of veritas put forward by the defenders, found the various innuendoes that were pleaded by the pursuers established, and awarded them damages.

[4] Damages against the defenders in the first action, the BBC, were awarded by the judge of £60,000 to the first pursuer, £50,000 to the second pursuer and £20,000 to each of the third, fourth and fifth pursuers. In addition he awarded damages against each of the defenders in the other actions to the first and second pursuers of £5,000 and £3,000 respectively. The defenders in all three actions will be hereafter referred to as "the reclaimers", and the arguments presented will be treated as common to all three where applicable.

[5] Originally the defenders and reclaimers reclaimed the Lord Ordinary's entire interlocutor, lodging lengthy grounds of appeal on the merits. However, shortly before the hearing before us the appeals were abandoned on the merits and the matter proceeded before us purely on the issue of damages. However, it has to be noted that no challenge was made in argument to the awards of £5,000 and £3,000, which awards will therefore stand.

[6] The findings of the Temporary Judge in relation to quantum of damage and his reasons for quantification are as follows:

[7] At the start of the hearing before us the reclaimers were still insisting on the first three grounds of appeal stated under Article 5 of the lodged grounds, which are in the following terms:

[8] Having stated that, however, senior counsel for the reclaimers withdrew ground of appeal 5.2 at the outset of his submission to us, which leaves only the matters raised by 5.1 and 5.3 for our consideration.

[9] In opening junior counsel for the reclaimers referred us to certain passages in the evidence given by each of the pursuers, largely as we understand it to set the scene, but we do not consider it necessary to refer to the evidence in any detail having regard to the findings-in-fact that the temporary judge has made.

[10] Junior counsel for the reclaimers then proceeded to propose that the test that should be applied by this court, in assessing whether or not a Lord Ordinary's assessment of damages was excessive, was to be found in Purdie v. William Allan & Sons 1949 S.C. 477 where the Lord Justice Clerk (Thomson), having considered the position of an appeal court in relation to the reviewing of a jury's award of damages, goes on to say, at page 480:

[11] Reference was also made to Butler v. Adam Lynn Limited 1965 S.C. 133.

[12] As the reclaimers' position developed and particularly in the hands of senior counsel the argument was predicated essentially on two basic propositions. Firstly, that the awards made by the temporary judge were well outwith the pattern of awards made recently in Scotland for defamation actions. The law, it was submitted, required consistency and therefore it was appropriate to examine the existing decisions and also to make certain comparisons with levels of award in relation to personal injury. Secondly the only issue was compensation, in respect of solatium for the injury caused.

[13] To lay the basis for this first submission junior counsel accordingly referred us to a number of cases where awards for defamation had been made in Scotland, with one exception, by judges. They were as follows: Smith v. Graham 1981 S.L.T. (Notes) 19; Muirhead v. George Outram & Co. Ltd. 1982 S.L.T. 201; Anderson v. Palombo 1986 S.L.T. 46; McCluskie v. Summers 1988 S.L.T. 55; Fraser v. Mercer 1992 S.C. 150; an unreported case of Lord Milligan namely Anthony Gecas v. Scottish Television plc dated 17 July 1992 and Gilbert v. Yorston 1997. The one award made by a jury in this context was the case of Winter v. News Scotland Limited 1991 S.L.T. 828 where the Inner House declined to interfere with the jury's assessment in that case of the sum of £60,000. Reference was finally made in this context to the case of Wray v. Associated Newspapers and Another [2000] S.C.L.R. 819 which case post-dated the hearing in the present case and in which in the opinion of the court the award was £60,000.

[14] Counsel accepted that the awards in these various cases varied enormously and that, with the exception of Gecas supra where Lord Milligan awarded £30,000, albeit on a hypothetical basis because the action failed and also after discounting a number of factors, the figures involved were far below the awards made in the present case in respect of both the parents and the children. In essence, therefore, the defenders' submission was that they broke the pattern of established awards and were thus to be regarded as excessive or out of all proportion if the original test in Purdie was applied. They had to recognise that in Winter the Inner House declined to interfere with the jury's assessment of £60,000, but the submission here was that when an award of a jury was being considered, a much broader brush had to be applied by the appeal court, and accordingly Winter was no adequate guide when it came to the review of an award made by a judge who had given reasons for it. In the context of reviewing jury's awards both parties referred to the decision of the House of Lords in Girvan v. Inverness Farmers Dairy 1998 S.C.(H.L.) 1 where Lord Hope of Craighead referred to the historical so-called working rule to the effect that if an award of a jury was to be interfered with by a higher court, it must be at least double what the assessment of the claim by that court would have been. In particular, at page 16, his Lordship says, in the context of jury trials, the following:

The reclaimers' position was that damages in defamation actions in Scotland were historically fixed at a moderate level and the present awards were way beyond the top of that particular pattern emerging from the cases. Consistency was essential.

[15] Furthermore, it was submitted as the second submission that what was required was compensation and in this context it was relevant to compare the level of awards in this case with such as might be attracted in cases of physical injury. This exercise was undertaken under reference to the Judicial Studies Board Guidelines as senior counsel made a number of fairly dramatic comparisons suggesting that the present figures, at least to the first pursuer, would be the equivalent of what would probably be awarded for the loss of both hands and exceeds serious facial scarring. Thus, if these figures were to apply, it was submitted, for injuries of long-term standing and permanent effect, lower figures should be awarded in respect of a defamation where the impact, however severe at the outset at the time of the slander, would gradually diminish. In the final result, the submission therefore was that the awards made in relation to both the parents and the children against the present reclaimers were out of all reasonable proportion to what should have been awarded and should therefore be quashed. The substitute figures put forward by the reclaimers were, respectively, £30,000 for the first pursuer, £20,000 for the second pursuer and £5,000 for each of the children.

[16] The reclaimers' position in relation to each of the children was simply that, initially, not having been named in the programme, they did not appear to qualify for damages at all, but having regard to the fact that defamation had been established that proposition was necessarily departed from. At the end of the day it was simply stated that the impact on them must have been less and accordingly the lower figure should have been awarded.

[17] The position of the pursuers and respondents in submission, particularly focused by senior counsel, was that consistency could be found with some previous awards, particularly Gecas and Wray, but essentially the test, as focused by counsel, was posed in the form of a question "On the face of it what is so wrong with the Lord Ordinary's approach?" "Do, these awards amount to an affront of justice or are they contrary to common sense?" Unless that approach was clearly wrong and an affirmative answer to the latter question was required, the Temporary Judge with detailed reasons, should be upheld.

[18] In seeking to resolve this matter it is firstly necessary to emphasise just how grave the allegations in the original programme were in relation, both to the impact on the pursuers' feelings but also on their reputation given that they were professional carers running a nursing home for the care of the elderly.

[19] The extent of the damage can best be illustrated by reference to the innuendoes in the pleading which can be summarised as follows:

Not one of these allegations was established, and indeed they were expressly rejected by the judge in his findings. We consider the assessment of the damages to be awarded to each pursuer must reflect the scurrilous if not outrageous nature of these untrue allegations.

[20] Secondly, in his findings the Temporary Judge has made it perfectly clear that he is making his assessment in consequence of and so as to reflect the findings-in-fact he made as to the effect on each of these pursuers of the slander which has been established, as it is now accepted to have been with the withdrawal of the appeal on the merits.

[21] Thirdly, since we are being asked here to review the decision of a judge who has given reasons for his decision the principles to be applied in this court with regard to the reviewing of awards of damages by juries do not immediately have any direct application. For example we note in Winter that that court considered that what they would have awarded would have been substantially less than that particular jury, but that did not prevent the court from upholding the jury's award. However, we consider that in any case where damages are being reviewed by this court or a higher court, as Lord Hope points out in Girvan, it must be necessary for the judges of the appeal court to have some idea in their own minds as to what assessment of damages they would have made upon the findings-in-fact of the Lord Ordinary, if nothing else, to form a backdrop or test against which the final issue of extravagance or excess can be measured. A jury may go much higher in that assessment and can be reviewed in that context.

[22] Fourthly, we will observe that we do not find in cases of defamation comparison with awards made in cases of personal injuries particularly helpful or useful. The comparative examples given by senior counsel for the reclaimers are dramatic but also, in our view, unhelpful. Every case of defamation is unique in respect of both the content of the slander and its effect upon the victims and it therefore follows in our view that even comparison with other decided cases in that area is of very limited value.

[23] If we were to embark upon the exercise of any assessment by us we are not convinced that the present awards do exceed the pattern to the extent claimed by the reclaimers. Even if we ignore the award in Wray on the basis that it is under appeal, a proper examination of Gecas reveals that Lord Milligan plainly drastically reduced the figure he would otherwise have awarded but for the facts in mitigation which he specifies in his opinion. It has to be emphasised that the exercise in that case was being embarked upon on a hypothetical basis since the plea of veritas in that case was made out. It is not, therefore, in our view, appropriate to regard that case as only awarding £30,000. Without the mitigatory factors specified the award would have been substantially higher. The nearest case beyond that is McCluskie, which is now somewhat stale, but the mitigating factor in that case was that the slander, although serious, had a very limited circulation.

[24] Furthermore, in looking at the field of damages generally in the context of personal injuries and defamation, it may well be that the levels now being fixed by judges in respect of personal injury are lower than they should be in the modern context, the courts having consistently followed previous decisions and thus establishing a pattern within a certain range. By definition we do not consider such a mould applies in a defamation case, given the unique nature of the assessment to be undertaken in that type of case. It is relevant to observe the level of the award in Winter, which would suggest that the jury approaching the problem took a much broader and more serious approach to the matter than do judges. It is not, therefore, in our opinion in any way wrong to consider what a jury might have done in the present case and in that respect Winter is illustrative and illuminating. As we understood it, counsel for the reclaimers accepted that if the awards made in this case had been made by a jury they could not attack them successfully in this court, a concession in our opinion rightly made and not without significance.

[25] It also has to be observed that the figures proposed by the reclaimers do not depend upon any detailed assessment of the evidence, but merely upon a somewhat circular argument that once those levels are suggested the figures actually awarded by the temporary judge are at least almost double in relation to the parents. The argument is to the effect that the latter figures must therefore be excessive as being out of all proportion to the figures being proposed on behalf of the reclaimers. However, it is self evident that that argument must fail if the figures proposed by the reclaimers cannot be substantiated and we do not consider that they can when we make our own assessment of the proper level of damages in this case to set a benchmark.

[26] Turning now to that question we consider that the awards made by the Temporary Judge which appear to reflect substantially what was being requested by counsel at the proof are conservative. We consider that an assessment of damages in a defamation action is a free-standing exercise which requires the court to address the impact of the slander both to the feelings of the victims but also the damage to their reputation. In this case it is clear both were enormous. The effect, particularly, on the first pursuer appears to have effectively ruined her lifestyle for a considerable period of time. More importantly, perhaps, than that, is the fact that their reputation as carers was grossly damaged by the allegations that were made and it is probably true to say that despite vindication now being accepted their reputation may never completely recover from the impact of the slander. If the approach in Wray is correct, reference to authority is of little point in making this assessment, and the matter becomes almost an instinctive reaction by the court. Our reaction in this case is to suggest that the figures awarded by the Temporary Judge to both Mr and Mrs Baigent are certainly sustainable and supportable by this court. The only doubt we have in our minds is to whether they are high enough. If a jury had been assessing the matter the awards might well have been much higher. It follows from this approach that if a comparison has to be made with personal injuries and if similar figures in personal injury claims might suggest a possible distortion by comparison in the minds of the public, then the solution may well be that the figures for personal injuries should be higher.

[27] In these circumstances and for these reasons we consider that the attack upon the assessments by the temporary judge of damages in relation to the first and second pursuer fails and his awards require to be sustained.

[28] Turning to the question of the children we confess to having some difficulty in defining what the ultimate position of the reclaimers was. It could perhaps have been understandable to maintain that they are not entitled to damages at all if they were not "referred to" in the programme, but defamation is established in terms of the full innuendoes and the point is plainly conceded by the fact that figures are being proffered in each case reflecting at least an indirect reference if not individually and by name. Furthermore, it is apparent from the findings-in-fact, since the two elder children were partners and the third child worked in the home, that they were all involved as a family in the caring operation and were all therefore slandered as a result, by the allegations that were made. Here again we cannot find the justification for limiting the awards in the reclaimers' figures to merely £5,000. As the Temporary Judge recognises the effect on the children would be bound to be less than the parents as the main players, but it is perfectly apparent to us, applying our own tests, that an award had to be substantial in respect of each of the children to reflect the obvious impact on them and their reputations, to say nothing of the apparent disruption of their social lives.

[29] In these circumstances we see no reason to interfere with awards made in this context by the temporary judge. Indeed, having expressed the view that we consider the awards he made to the parents as being relatively conservative, the same can be said of these figures.

[30] We therefore consider that the reclaimers advanced no stateable reason why these figures should be interfered with and we would accordingly sustain them as well.

[31] In these circumstances the reclaiming motion is refused in all three actions. In the result the award of interest by the Temporary Judge will stand in each case, but in addition we will award interest on all sums due under these decrees from its date until payment at the rate of eight per cent.