Cleese v Clark & Anor

Mr Justice Eady:

1. I am asked to assess compensation under s.3 of the Defamation Act 1996 in accordance with the relatively pew “offer of amends” procedure, which has its origins in the recommendations of Sir Brian Neill’s Committee on Defamation Practice and Procedure of July 1991. It found its way into the statutory regime contained in ss.2-4 of the 1996 Act and finally came into effect on 28 February 2000.

2. The procedure is embodied in Part 53 of the CPR and caters for the situation where a complaint of defamation is made against someone who accepts that the allegations were false and wishes to make amends. An offer under the statutory provisions can be made at any stage up to and including the time, if it arises, when a defence becomes due. On the other hand, the procedure is also designed to enable an offer to be made and accepted without the need for proceedings even to be started. That is what has happened here.

3. If such an offer, properly made, is rejected then a defendant (or potential defendant) will have a complete defence to any libel claim through having made a valid offer of amends unless the complainant can take on and discharge the burden of proving, in effect, that the defamatory words were published in bad faith: see e.g. Milne v Express Newspapers Limited [2002] EWHC 2564 (QB).

4. If, however, the offer is accepted, it is then for the parties to attempt to reach agreement on the appropriate remedies including financial compensation, an apology, correction, the payment of costs, and so on. If the parties are unable to do so, then an application can he made to a judge (sitting without a jury) to resolve any of the outstanding issues. The statute and consequential rules of procedure are also naturally so drafted as to permit such a hearing to take place without a need for an action to be commenced at all. Where a claim is made other than in existing proceedings, the procedure resembles that of the former originating summons and is made under CPR Part 8: see CPR 53 PD 3.2. Once proceedings are begun, then such an application would be made under Part 23.

5. It is provided by s.3(5) of the Act that:

“If the parties do not agree on the amount to be paid by way of compensation, it shall he determined by the court on the same principles as damages in defamation proceedings.

The court shall take account of any steps taken in fulfillment of the offer and (so far as not agreed between the parties) of the suitability of the correction, the sufficiency of the apology and whether the manner of their publication was reasonable in the circumstances, and may reduce or increase the amount of compensation accordingly”. The reason why the section speaks of “compensation” to be determined “on the same principles as damages” is precisely because it contemplates an award being made without the commencement of proceedings. Technically, a judge who is asked, in such circumstances, to award compensation is not awarding damages in an action for libel. So here, I am invited to decide the appropriate financial compensation purely in accordance with the new procedure but applying the same criteria as govern damages awarded in an action.

6. This naturally means that it is appropriate to hear evidence and submissions in the same way as in the course of a “damages only” defamation trial. As I made clear recently in Abu v MGN Limited [2002] EWHC 2345 (QB), there should be nothing “rough and ready” about the exercise. The procedure should not be confused with that of summary judgment. There is no cap on the level of compensation permitted, as there is in the context of the summary judgment regime introduced in ss.8-l0 of the 1996 Act. The “offer of amends” procedure is by no means confined to the less serious cases. It can come into operation in relation to defamatory allegations at any level of gravity. It comes into play because the parties have chosen to take that route.

7. It may well be legitimate, therefore, in some cases to raise issues relevant to mitigation, aggravation and causation of loss in exactly the same way as during a conventional trial. What is precluded is anything tantamount to introducing a defence such as justification or fair comment: see e.g. Abu (cited above) at [13] - [17].

8. The background to this case is that Mr Cleese complains of an article published in the Evening Standard on 11 April 2002 by Peter Clark. It was headed “So, has John Cleese lost his funny bone? How the legendary comedian faces humiliation after his latest TV flop”. The article occupied the top half of a page in the newspaper’s arts and entertainment section was accompanied by a prominent photograph of Mr Cleese. I am told that the readership would have been of the order of one million.

9. I do not need to incorporate the whole of the article for the purposes of this judgment, and I propose to concentrate on the complaints made by his solicitors on Mr Cleese’s behalf. It is always, of course, on the basis of the complaint as formulated in correspondence, or in some cases in the claim form, that a proposed defendant has to decide whether to make an offer of amends or not. In this case, the initial letter of complaint was dated 8 May 2002. The essence of the criticism made of the article is to be found in the following passages:

“The article is a thinly veiled gratuitous and vitriolic attack on our client and his career.

The article, inter alia, asserts as facts:-

(i) ‘The legendary comedian faces humiliation after his latest TV flop’

(ii) ‘Americans…have turned on Cleese. His (our emphasis) puzzlingly entitled show. Wednesday 9:30 (8:30 Central) has drawn vitriol from a nation that he must have thought had milk and honey coursing through its veins’

(iii) ‘The hubris of this perma-tanned wannabe Bob Hope has been richly rewarded’

The article, inter alia, meant and was understood to mean that:

(i) Wednesday 9:30 (8:30 Central) was our client’s show which together with his performances resulted in reviews that inevitably lead (sic) to the conclusion that he has properly attracted vitriol from the American nation causing (our client) total humiliation.

(ii) The American nation has rightly turned upon him, his career and reputation so completing the ‘fall which ended his decline’.

(iii) Such humiliation is richly deserved because of his arrogance and presumption.

Such allegations are without any foundation whatsoever.

It is a sad reflection on your article that we have to remind you of facts that Mr Clark either recklessly or deliberately chose to ignore:-

(1) It was not ‘his’ show. Our client had no part to play as the producer, director or writer of the show.

(2) In the two shows broadcast our client was in the first for 1½ minutes and the second for 4½ minutes. i.e. 6 minutes out of a total of 2 half hour shows broadcast.

(3) Far from America turning on our client:

(a) our client continues to be much in demand in the United States and continues to enjoy lucrative and interesting offers for his services that befit a distinguished actor, writer and lecturer of his status and experience. Even your sister paper, the Daily Mail recognised as [much]. The Dempster column published the following on 2 April 2002

‘His new sitcom in America is unlikely to last beyond the six episodes already filmed - it has been savaged by the critics. In it he plays a Basil Fawlty-type chauvinist TV station manager.

Luckily for Cleese, he did not write the script and he only appears for a few minutes every episode. Otherwise, his career has taken off in the U.S. where he says he gets 90 per cent of his work.

He is in the 20^th James Bond movie as Q’s assistant and is booked for the next Harry Potter film’.

(b) The vast majority of the reviews of our client’s performance were positive. We set out one as an example:-

‘The brilliant Cleese is on hand only for sporadic duty as the charmingly ruthless kingpin, but he steals every scene he’s in without breaking sweat’

Los Angeles Times, 27 March 2002

There are many other similar reviews in major United States publications.

Even your own newspaper on April 9, 2002 published:-

‘Most (reviewers) agree that Cleese was the only good thing in the show saying he was a “fleeting bright spot”

…

Further other ‘facts’ that Mr Clark relies upon to support his spiteful suggestion that ‘the hubris of this perma-tanned wannabe Bob Hope has been richly rewarded’ are mis-stated or simply untrue.

It may assist you to be aware that, inter alia, the following facts in the article are untrue:-

(i) Our client did not announce that he was ‘leaving these rain lashed shores for the brain softening sunshine of California’. He maintains a residence in both the United States and the United Kingdom.

(ii) Our client did not say that the British ‘have somehow contrived to lose their sense of humour’.

(iii) Our client did not cite ‘his height and satirical bent as talents which had mysteriously transformed themselves into intolerable burdens’.

(iv) You give the impression that our client has opted for an easy life in the United States by forming a company which made videos far corporate clients. Our client did set up a company in the United Kingdom called Video Arts in 1972 which has won the Queen’s Award for Industry, but we cannot believe that Mr Clark is referring to the setting up of that company some 30 years ago to help make good his point (or is he?). Video Arts made videos with their own money for use by many different institutions as diverse as local government and the British army. During the 30 years that our client has been associated with the company, they have only made three videos for corporate clients and none in the USA.

(v) Our client has not been to see ‘a shrink obsessively’. When he has seen a therapist he has fitted it into his ordinary working schedule.

(vi) Our client did not start writing books full of condescending psycho-babble. He helped one of Britain’s leading psychiatrists (Dr Robin Skynner) to write two books which were both commended for their lack of jargon.

(vii) Our client has not ‘begun to analyse humour as if it were susceptible to a microscope’. He wrote one chapter of his thoughts on humour in one of the books. Otherwise he has never written on the subject.

Our client is always willing to accept honestly held criticisms of his performances, but he is perplexed as to why you have singled him out for such a deeply unpleasant and totally fanciful attack.

It is of the utmost importance to our client that you agree to publish in all the editions of your newspaper an apology. Obviously that will go some way to alleviating the embarrassment and effects of the disinformation which you must have known would have resulted from your article. It will also greatly influence our clients approach to the question of damages. Our client would like the apology to be published within 7 days of this letter with the positioning, page and prominence agreed with us prior to publication. Please indicate by close of business on Monday 13 May 2002 whether you agree to publish an apology, in which case we will let you have a draft.

Due to the extensive readership of your newspaper (many people who read the offending article may not see the apology) our client requests that you join in a Statement in Open Court. He also requires an indemnity in respect of legal costs that he has had to incur.

We look forward to hearing from you but in the meantime all our client’s rights are reserved.”

10. It is right to say that within a couple of weeks Associated Newspapers were acknowledging that the article was “not entirely fair”, in so far as it related to Mr Cleese’s reputation in the United States and the extent of his role in the cancelled series. At first, in their letter of 17 May, there was only an offer of a form of words for publication but nothing said about costs or agreement to join in a statement in open court.

11. Various discussions took place in correspondence in an attempt to reach an agreed disposal. It was on 6 June 2002 that an unqualified offer of amends was made, which expressed a willingness to make a suitable correction and sufficient apology and also to pay financial compensation (to be agreed or determined by a judge under s.3(5) of the 1996 Act).

12. The offer was accepted on Mr Cleese’s behalf by a letter of 25 June 2002. Further discussions took place but, since it was not possible to reach agreement, the newspaper took steps to mitigate - including by the publication of an article on 23 July 2002. This was headed “John Cleese” and contained the words, in the last line, “We apologise to John Cleese”, but no attention was drawn to the fact of the apology by using that word in the heading. What was said in the body of the text was as follows:

“In An article on 11 April, Pete Clark claimed that John Cleese has suffered humiliation as a result of the cancellation of two episodes of an American TV series.

In fact, John Cleese’s only involvement with the series was to appear in it for a total of six minutes and the vast majority of reviews of his performance were very favourable.

The article contained other inaccuracies and included an attack on John Cleese for making three statements, which we accept he never made.

We apologise to John Cleese”.

13. It is fair to say that the article was published part way down a right hand column and, as is often the case with corrections or apologies, it received nothing like the prominence of the offending article. Nonetheless, it undoubtedly goes to mitigate to at least some extent the effect of the original article, as does the conciliatory (albeit apparently grudging) stance adopted from a very early stage. It was perhaps a little surprising, since the parties were in ongoing communication with one another, that Mr Cleese’s solicitors were not informed when the unilateral apology was to be published (although a copy had been sent on 18 July).

14. One of the points to which the newspaper attaches particular importance is that Mr Cleese and his solicitors seemed unwilling to enter into meaningful negotiations about an appropriate sum of money for compensation. Various figures were mentioned, but Mr Cleese only ever identified a bracket for satisfactory financial compensation once, on 24 May 2002. What was said was as follows:

“I am sure that you are aware that MGN Limited have just been notified that the House of Lords have refused their petition for leave to appeal the Court of Appeal decision of Kiam v MGN Limited. The article in question in that action and the failure to check that characterised the proceedings are in fact, very similar to this action. You will be aware that the damages award in that action (which the Court of Appeal ratified) was £105,000. At the very minimum, on that basis, I expect my client will easily receive £30,000 from a jury and possibly more.

Accordingly, his willingness to accept a heavily discounted figure of £10,000 is based on an apology being printed, as soon as possible, which meets with his satisfaction. The apology should also he published on a right-hand page and above the fold”.

15. Despite the fact that £10,000 was eventually offered on 21 August 2002, it did not lead to settlement. No Further light has been shed on Mr Cleese’s financial requirements since the original letter in May from which I have quoted, and the newspaper’s offer was never increased.

16. Against this background Miss Page QC, appearing for the newspaper, spoke of the parties being “at a complete stalemate”. It certainly seems a pity that the matter has come before the court and did not prove capable of amicable resolution.

17. It may seem curious that the judge should be given a blow by blow account of the discussions about sums of money contained in “without prejudice” correspondence. In fact, the parties thought that I had only been supplied with letters with the figures redacted. But in one document the figure was left in, as I pointed out just before the hearing was due to begin. The parties then indicated that they had no objection and would reveal all the figures so far withheld. Mr Caplan QC, for Mr Cleese, drew attention to the differences in the rules and practice on “offer of amends” as compared to Part 36 offers: see CPR 36.19(2) to which there is no equivalent in Part 53 PD.27. I am bound in say that if the judge does see the figures offered and rejected it can create difficulties of a similar kind to those which are generally avoided under the Part 36 practice of non-disclosure. For that reason, I believe that for the future it would ordinarily be preferable for the figures not to be disclosed to the judge. This is naturally subject to the provisions of Part 53 PD.27 at 3.3(2)(e) which requires that the amount of any sum actually paid as compensation must he included in the supporting evidence. Meanwhile, I have in this instance naturally done my best to put the figures to one side in arriving at my own conclusion as to the right bracket for compensation.

18. I was invited to offer such other guidance as I could with regard to the appropriate procedure to be adopted in relation to offers of amends, whether made following the commencement of proceedings or otherwise.

19. It is fair to say, perhaps, that the whole of the “offer of amends” regime is predicated upon the parties’ willingness to negotiate meaningfully and thus to give and take, where necessary, in order to achieve a reasonable compromise as quickly and inexpensively as the circumstances permit.

20. By the time such an offer has been made and accepted, the full extent of the complaint will have crystallised and the task of the professionals involved is simply to assist the parties in the light of their experience in arriving at the appropriate level of compensation and means of correction, for the claim as notified: see Abu v MGN Limited [2002] EWHC 2345 (QB) at [8] and [9]. As has always been the case, the amount of financial compensation is likely to be assessed partly by reference to the timing, scope and effectiveness of any apology made, or proffered, and it clearly makes sense for the two matters to be on the agenda for discussion at the same time. The two are intimately related. Discussion about monetary compensation is likely to remain hypothetical until a defendant’s best offer for vindicating the complainant is on the table. The relationship between these two issues is also embodied in s.3(5) of the 1996 Act. The court is enjoined to take account of any steps carried out in fulfillment of the offer and (so far as not agreed between the parties) the suitability of any apology and the reasonableness of the manner of publication. It is obvious that where such matters cannot, for some reason, be agreed a defendant (or potential defendant) will generally be well advised to publish as prompt and generous an apology as the circumstances permit, with a view to moderating the level of compensation which the court may ultimately award.

21. My attention was drawn to discussions which took place between counsel and myself in an earlier case called Fernandes v MGN Limited during a hearing on 17 October 2001. I had no recollection of this myself, but it seems that a note was taken of those discussions and of certain remarks I made on that occasion. There is no official transcript because there was no ruling. I appear to have been making certain fairly obvious off-the-cuff suggestions as to the appropriate course of action. I will adopt them, for what they are worth, in the hope that they may be of assistance to other parties who wish to achieve a fair result for their respective clients while avoiding some of the delays and expense traditionally associated with this form of litigation.

22. I said on that occasion that it was in the contemplation of Parliament, and those who formulated the relevant rules, that once an offer has been validly accepted discussions should take place, on an informal basis, so as to avoid as far as possible any need to attend before the court.

23. I suggested that the sensible course would be for a meeting to take place round the table, if practical, without going straight to the court for directions as though a contested hearing were inevitable. It is necessary to bear in mind CPR 53 PD 3.3(3): “Where any step specified in section 2(4) of the Defamation Act 1996 has not been taken, then the evidence referred to in paragraph (2)(e) to (1) must state what steps are proposed by the party to fulfill the offer of amends and the date or dates on which each step will be fulfilled and if none, that no proposal has been made to take that step”.

24. Once the offer of amends routine has been adopted it should signify a spirit of compromise on both sides. It is therefore clearly in everyone’s interests to capture the mood and without delay, set about identifying and resolving any issues still outstanding. I referred to a round-the-table meeting because it encourages a frank exchange of views and the placing of one’s cards face up. It should also be quicker than attempting to reach agreement in a prolonged exchange of solicitors’ letters. Once solicitors enter into correspondence there is a tendency to keep cards up sleeves and there is also scope for obfuscation and posturing. It is best avoided in this context. I would have thought, since there can be no form of human communication more stilted than letters between litigation solicitors of the type with which we are all too familiar, where endless points are scored of the “We are surprised to note ....” variety.

25. In this case seven months have gone by since the offer was accepted at the end of June 2002, and costs have no doubt escalated. They cannot surely be proportionate to resolving what little dispute thereafter remained between the parties; that is to say, the content and prominence of an apology on the one hand, and the appropriate amount of compensation on the other. Everyone knows that nowadays negotiations should be approached constructively in order to save costs and sort the matter out quickly.

26. Here, criticisms have been levelled on both sides. It is fair to say that neither side has been as pro-active as the new procedure clearly requires. I have no wish to apportion blame that is not my primary responsibility on such an occasion as this, but there is clearly an obligation on both parties and, where they are represented, upon their lawyers to identify the issues promptly and with frankness. There is no point in making the other team guess at what one is after. Moreover, as I apparently observed in Fernandes, if there is a delay in bringing negotiations to fruition which is attributable to the complainant, this will tend to reduce the level of compensation. Any such delay that is properly to be laid at the door of the defendant will tend to increase the award.

27. In the present case, as I have said Mr Cleese’s solicitors wrote initially of a jury awarding £30.000, a sum which they were willing heavily to discount by two thirds in exchange for a quick and prominent apology. It was, however, only on 21 August that the Evening Standard’s advisers were prepared to offer the £10,000 which, three months before, it had been indicated would be acceptable. So far as his solicitors were concerned, things had changed by then. Not only had a quarter of a year gone by but on 23 July, the unilateral apology was published in the terms which I have described. It was already clear from the exchange of correspondence, and he confirmed it in the course of the hearing before me, that Mr Cleese did not regard the apology as adequate. Miss Page cross-examined him as to why not. It had been requested originally that the apology should appear above the fold on a right-hand page. Mr Cleese naturally accepted that this apology fulfilled both those requirements and added, with some feeling, that it would also be true to say that it had not been published upside down or in the Korean language. In other words, I gather, he thought such positive qualities as it had were modest and certainly not worth the two-thirds discount originally offered. The headline, for example, did not contain the word “apology” and there was no photograph, or any other means of giving it a prominence comparable to that of the offending article.

28. It is always important to remember of course, that the stipulations laid down on Mr Cleese’s behalf in the 24 May letter are in no way binding on the court. In general terms, it is wise for parties not to lose sight of the main objective by sacrificing an early settlement because of failure by the other side to accept some term which is of only marginal significance. Recently, in Mawdsley v Guardian Newspapers Limited [2002] EWHC 1780 at [18] – [21], Morland J has re-emphasised that the obligation to mitigate loss operates as much in respect of defamation as any other tort. In the present case, ludicrously, some debate took place as to whether the difference in the headline, between what the complainant wanted and what he got, was to be measured as two millimetres or three. On the claimant’s behalf Mr Caplan took the point that it was “a mystery” why there was a refusal to apologise “unreservedly”. I would not attach much significance to that. It is a lawyer’s word the omission of which a casual reader would hardly notice.

29. Reference was made in the letter of 24 May, as I have said, to Kiam v MGN Limited [2002] 3 WLR 1036. There are a number of important features of that case which should be noted. The jury found that the article was published maliciously and it was described as “untrue in every material respect”. The majority of the Court of Appeal declined to interfere with the award of £105,000 but clearly would have awarded significantly less themselves, since they concluded that the trial judge’s bracket of £40,000 to £80.000 was “entirely reasonable”. Sedley LJ differed from the majority, in that he regarded £60,000 as the highest defensible figure. This was despite the fact that he described the newspaper as not only having got its facts wrong but as having “behaved outrageously from start to finish”. Moreover, Simon Brown LJ observed that the jury should be assumed, in that case, to have accepted the claimant’s contention as to the defamatory meanings and also to have accepted his ease on the many aggravating features. Unlike the present case, the article did reflect on Mr Kiam’s integrity in that there was an innuendo meaning to the effect that he had lied or misled the public about his commitment to the Ronson company and as to its financial liability. Also, it suggested that his entrepreneurial ability had wholly deserted him, so that he was now only fit for retirement; that he was prepared to give up on Ronson and close it down with devastating consequences for staff, who would lose their jobs, shareholders, who would lose their money, and customers who would lose their contracts; and that Ronson’s imminent financial collapse was attributable to his own professional failures.

30. A further point of distinction from the present case is that the editor of the defendant newspaper not only denied that the article was materially inaccurate but also refused to apologise. Even after their defence was served, pleading neither justification nor fair comment, no apology was forthcoming. It was clear that this was an aggravating factor to which the Court of Appeal attached significance.

31. A comparison was drawn by the claimant’s advisers in argument before me with Mr Kiam’s earlier case: Kiam v Neil (No.2) [1996] EMLR 493. The Court of Appeal described that libel as striking “at the core of [the claimant’s] life’s achievement and personality”: see also per Simon Brown LJ in Kiam v MGN at [40] to [42]. They suggest that the present article could be so described in relation to Mr Cleese. Again, however, it is important to note that the earlier article also attacked his integrity in suggesting that he had defaulted on a £l3.5m loan and had also induced members of the public to buy Remington shavers relying on a promise to refund money when he was in no position to fulfil it. Beldm LJ had said that it would be difficult to imagine a more damaging allegation. The Court of Appeal had there declined to interfere with an award of £45,000 (£51,000 today).

32. Unfortunately, the newspaper’s advisers were not enlightened through his solicitors as to how much discount from his original £30,000 figure Mr Cleese thought the actual apology was worth. They were left, therefore, to guess at a figure somewhere between £10,000 and £30,000. This old-fashioned approach to litigation is to be discouraged, as the purpose of’ the offer of amends procedure is to reduce delay and expense.

33. As a matter of fact, I regard the starting figure of £30,000 as too high in any event. I am not concerned with hypothesizing as to what a particular group of twelve lay persons might have done, on the basis of what other groups of lay persons have done in the past. What I have to do is to try to relate the “right” range of compensation to the gravity of the particular libel and to any aggravating or mitigating features. In doing so, I must have regard in particular to what is now regarded as effectively to be the current maximum for general damages in a libel action, namely £200,000: see e.g. Campbell v Newsgroup Newspapers [2002] EWCA Civ 1143 and Lillie and Reed v Newcastle City Council [2002] EWHC 1600 (QB). Thus a generous margin needs to be left at the upper end of the scale to accommodate the more serious libels. Occasionally, there are bound to be examples of allegations so grave and devastating in their impact that the maximum will seem inadequate. The perceived advantage of imposing an upper limit, however, is that there is likely to be greater clarity and consistency. Here will also be a better chance of estimating the consequences of one’s conduct if necessary with the assistance of legal advice. This might assist to an extent the prospects of settlement and will tend to reduce what has been described as the “lottery” element of libel damages: see e.g. per Rose LJ in Gorman v Mudd [1992] C.A. Transcript 1076. In addition, it was intended to ensure that the inhibitions on freedom of speech inherent in a system of monetary compensation can be categorised as “prescribed by law” in accordance with Article 10(2) of the European Convention on Human Rights.

34. I must also have an eye to the levels of compensation awarded in personal injury claims. That is in accordance with the modern practice and was only recognised as acceptable following the Court of Appeal’s decision in John v MGN Limited [1997J QB 586. It is important to realise that there have been relatively few jury awards over the intervening period. One needs naturally to put to one side some of the well known awards in earlier cases where juries were not invited to take such factors into account. There is, therefore, as we have been told more than once recently, a “new landscape” and assessments have to be made without the baggage of that previous experience.

35. In personal injury terms, a general damages award of £30,000, even following Heil v Rankin [2000] IRLR 334, would tend to equate to (say) a leg fracture extending to the knee joint and causing pain which is constant, permanent and limiting of movement; or a serious hand injury where there is a loss of about 50 per cent capacity and perhaps where fingers have been amputated and rejoined leaving the hand clawed, clumsy and unsightly; or the loss of sight in one eye; or severe abdominal injury causing impairment of bowel function and perhaps necessitating a temporary colostomy and/or restriction on employment and diet. It would certainly exceed the damages recoverable for the loss of a kidney (assuming no damage to the other one) or for the total loss of hearing in one ear - even when accompanied by tinnitus, dizziness or headaches.

36. These illustrations tend to confirm my initial impression that the starting point was too high. On the other hand, the starting point adopted on the newspaper’s side (£3,000) was so low as to be dismissive of a genuine complaint in respect of an unaccountably personal attack. I must now therefore, in the light of the general principles, attempt to arrive at my own assessment.

37. The purpose of libel damages is threefold:

(1) to compensate for distress and hurt feelings;

(2) to compensate for any actual injury to reputation which has been proved or which may reasonably be inferred:

(3) to serve as an outward and visible sign of vindication.

38. It is necessary always to take into account the full circumstances of the case. Such factors have to be borne in mind as the gravity of the allegations, the scale of publication, the extent to which any readers believed the words to be true, any impact upon the claimant’s feelings, reputation or career. There may be matters of aggravation or mitigation which also need to be put in the scales. It is, moreover, often the case that the claimant’s own conduct will have a part to play in arriving at the appropriate figure. A fundamental point always to be remembered is that the purpose of such damages, and indeed compensation awarded under s.3(5), is compensatory and not punitive. It is also wel1 sealed that financial compensation (unlike any penalty) is to be awarded without regard to the parties’ means. It is thus inappropriate to award higher compensatory damages because a newspaper group is perceived as having immense wealth; correspondingly, it would be inappropriate to award a rich claimant a greater sum than one who is less well off simply because the damages in contemplation might seem to him or her merely a drop in the ocean.

39. On the facts of this case, it seems to me that the major element in assessing compensation has to be the impact upon Mr Cleese’s feelings. I doubt in the light of the evidence, despite his own apprehensions, that his well established reputation here and elsewhere will have been significantly damaged if at all. He has been held in high esteem by millions or people for several decades. The impact of the article on the ordinary, casual reader would surely have been simply to raise a question mark as to what had evoked such a spiteful piece. It plainly went beyond the normal bounds of news coverage or television criticism, and no one has sought to defend it as being either accurate or fair comment. There is no doubt that Mr Cleese was badly upset by it notwithstanding the fact that he has become used to critical coverage over the years, including no doubt some that has been unfavourable.

40. He may perhaps, by some peoples standards, be regarded as unduly sensitive about this unpleasant article, but his hurt feelings are certainly genuine. Those who use the popular media to make unpleasant personal attacks must, as the saying goes, take their victims as they find them. If they choose to attack someone of particular sensitivity or vulnerability, they must generally speaking be ready to take the consequences.

41. One of Mr Cleese’s frustrations over this case is that he has not received any explanation as to how this piece came to be written and published. He draws a contrast with an earlier occasion when he complained about an article to the previous editor, Max Hastings, who had given a full explanation as to what had gone wrong and an assurance that material would he checked in future. It is obvious that he is not, as a matter of law, entitled to such information. On the other hand, given the nature of the present article, it would hardly be surprising if the court were to draw an adverse inference. Since it is so obviously spiteful on its face, it would not be inappropriate to conclude that it was motivated by personal animus for some reason or another. Miss Page did submit that it would be inappropriate to conclude that the article was malicious, since no particulars of malice have been served and no other notification to that effect. I do not believe that point to he valid in circumstances where the tone of the piece is so manifestly vitriolic as here. I could hardly ignore it. I have no idea why Mr Clark should harbour such strong feelings about Mr Cleese, and it does not matter, but he was in the circumstances entitled to believe that it was a “hatchet job” and to react accordingly.

42. As defamation cases go, however, the allegations are very much at the lower end of gravity. Mr Cleese is undoubtedly attacked both personally and professionally, but he is not accused of anything criminal or cruel or anti-social. Nor has his integrity been undermined. Because of the nature of the allegations, it is obviously right to give some weight to his concern that persons may have been discouraged from using his professional services in the future, although I would be less inclined than Mr Cleese to believe that this posed a significant risk that his future career will he fundamentally undermined, It cannot, however, simply be brushed aside. The article clearly suggests that a long, slow decline in his talents and professionalism has finally ended with a bump. By the offer of amends, it has clearly been recognised that this is simply not true.

43. I accept that the defendants have made genuine efforts to retrieve the situation and to make amends. They have published an apology, as I have described, but they did so without any great enthusiasm or generosity of spirit. It was also, more importantly, somewhat less than informative as to the nature of exactly what was being corrected. To that extent, it will obviously make less impact than a fuller statement, but the newspaper has undoubtedly mitigated significantly the impact of Mr Clark’s original unpleasantness. It is fair, on the other hand, that I should note that the effect of the mitigation is by way of vindication and putting the record straight; there has been little if any actual mitigation to the hurt to Mr Cleese’s feelings, since he believes that he has been treated with meanness in the first place and casual indifference in the aftermath.

44. I must take account of the fact that £10,000 was offered some five months ago which was certainly within the range that Mr Cleese was asking for in May (albeit on the bottom rung). There will almost always be room for debate over the terms of an apology and there has to he reasonable give and take. If the correction has been published, it must he given its fair due and not discounted because it does not have quite the prominence or generous glow that would have assuaged the complainant’s hurt feelings.

45. As I have already indicated, my starting point would he significantly lower than that of Mr Cleese, when judging the seriousness and impact of the original allegations, and I must allow credit for the correction published so far as it goes (having been published three months after the offending piece and with considerably less prominence).

46. Taking all these matters into consideration, I have come to the conclusion that the right figure is £13.500.