Gilham v MGN Ltd & Anor

The claimant seeks the court’s determination of the amount(s) to be paid to him by way of compensation pursuant to s.3(5) of the Defamation Act 1996, following his acceptance of a qualified offer of amends.

The following matters are in issue:

I have considered all the evidence in the bundle, including witness statements from the claimant, his wife and the defendants’ in-house lawyer.

The claimant has worked as a teacher for over forty years and is also a rugby coach. He lives in Kent. The first defendant is the publisher of the Sunday Mirror newspaper and the website www.mirror.co.uk. The second defendant is the parent company of the first defendant, and publisher of the website www.kentlive.news.

The articles complained of were about an incident that took place at the claimant’s school on 3 February 2017, and its aftermath. The following is not disputed, and derives mostly from the claimant’s evidence:

There are four articles complained of:

The text of the second article complained of was as follows:

The first and third articles complained of were variations of the same piece. The wording of each is set out in an appendix to this judgment, with the text of the Updated Kent Live Article marked up to show what was changed.

The claimant’s wife contacted the defendants straightaway. She explained what was wrong with the articles and provided the defendants with the TRA’s letter.

The first defendant accepted within ninety minutes that it had made an error in reporting a guilty finding in respect of unacceptable professional conduct:

Things went less smoothly with the second defendant:

All then went quiet for some months. On 3 April 2019, Carter-Ruck wrote to the defendants about its ATE insurance cover and the stepped premiums. Letters of claim followed on 9 April 2019.

The defendants made a qualified offer of amends on 13 May 2019, accompanied by an offer to take certain specific steps pursuant to the offer of amends, namely:

The defendants pointed out that items (iv) and (v) went beyond what they were required to offer as part of this process. The defendants included proposed wording and said they were happy to discuss reasonable amendments. The defendants also apologised to the claimant: “we owe your client an apology as it is clear that, contrary to what we said, your client was not found guilty of unacceptable professional conduct by… the TRA. Please convey our apology to your client. We are, of course, happy to put that apology in a separate letter addressed to your client if he would like us to do that. Please let us know.”.

The qualified offer of amends was accepted on 22 May 2019. The agreed meaning is that: “[the claimant] was, and had been found to be, guilty of unacceptable professional conduct by the Teaching Regulation Agency and would be the subject of punishment by them having used excessive and unnecessary force when he dragged a 7 year old boy, Robbie Rayner, by the scruff of his neck across his classroom which resulted in [the claimant’s] dismissal with the incidents causing the child to struggle with lessons and become so unsettled that he stopped wanting to go to school.”

The letter making the qualified offer of amends also put the claimant on notice that the defendants would be seeking to rely on certain matters in respect of damages: “although we were clearly wrong to say your client had been found guilty of unacceptable professional conduct by the TRA, and should pay your client compensation for that incorrect suggestion, it is important that any compensation is restricted to that incorrect suggestion and does not (and must not) compensate your client for the (true) facts of your client's behaviour towards the pupil which led to your client's dismissal from his job and the findings of fact by the TRA in relation to that incident”.

There is a list of thirteen Burstein particulars, including the full terms of the TRA decision, the behaviour of the claimant towards the pupil and the findings made against him. The claimant accepts these are matters that can properly be taken into account. There is, however, a dispute over the admissibility of the fact that after the incident there was a disciplinary hearing leading to the claimant’s dismissal without notice, and the fact that on appeal that decision was upheld.

The parties then sought to agree the wording of a first apology for Kent Live, and second apologies for the Sunday Mirror and its website. After initial negotiations, the defendants put forward some compromise proposals on 18 June 2019. In response, the claimant’s solicitors explained that the proposed wording was “inadequate, and is effectively rubbing salt into our client’s wound”. Alternative wording was proposed, with Carter-Ruck stating that if this was not acceptable, the claimant would have to accept that the December apologies should be “considered to meet paragraphs 2(4)(a) and (b) of the Defamation Act 1996 for the purposes of the Offer to Make Amends”. The words proposed by the defendants, and the claimant’s amendments, were as follows:

“Martin Gilham – An Apology

In an article published on [date] we said that Martin Gilham had been found guilty of unacceptable professional conduct by the Teaching Regulation Agency (TRA) and that his punishment would be announced later following an incident where he draggeda seven year old boy across his classroom which led to his dismissal. We are happy to clarify that although the incident as described in our article happened resulting in MrGilham’s dismissal, in fact the TRA did not find him guilty of unacceptable professional conduct and imposed no punishment on him. We apologise to Mr Gilham for our error [and confirm that his ability to teach remains unaffected].” The extra words at the end of the apology related to the version to be published on Kent Live.

The fundamental point of disagreement between the parties was the extent to which the apology should refer to the incident. The defendants indicated that they were prepared to consider reporting what was said in the TRA letter, but that this needed to be put in context and not mislead readers about the TRA’s findings, namely that the claimant’s actions were inappropriate and the force used was unreasonable.

The defendants went ahead and published their version of the apology on 30 June 2019 on the Mirror’s website, the Kent Live website and on page 18 of the Sunday Mirror. There was no response to publication from the claimant and things appear to have then gone quiet again until 7 November when the claimant’s solicitors sent a letter about damages.

The claimant says he is aggrieved by the publication of the June apologies and can see no reason why the defendants needed to refer to his dismissal twice, or mention details of the original incident at all. His main complaint though is the republication by the newspaper of information that he says is damaging and untrue when it said that

“the incident as described in our article happened” and that he had “dragged a seven year old boy across a classroom”.

On 15 November or thereabouts, the claimant provided draft proceedings and his witness statement to the defendants. The defendants noted the claimant’s unhappiness with the June apologies and offered to remove them from the websites, which it has since done.

In May and June 2019 there were also discussions about damages. The parties have taken me to extensive open correspondence on this issue. This comprises repeated requests by the defendants for the claimant to set out clearly in ‘without prejudice save as to costs’ (WPSATC) correspondence the amounts he is seeking from each defendant, and the claimant’s solicitors maintaining that this information had already been provided and criticising the defendants for not making an offer on damages that was capable of acceptance. What is expected of parties in offer of amends cases is well established, see for example Cleese v Clark [2003] EWHC 137 (QB) [19] – [24]. No doubt all will become clear when the WPSATC correspondence is disclosed on the question of costs.

Part 8 proceedings seeking the determination of the amount(s) to be paid by way of compensation were issued on 19 December 2019.

Compensation under s.3(5) of the Defamation Act 1996 is to be determined on the same principles as damages in defamation proceedings, see s.3(5) of the 1996 Act.

When assessing the level of compensation, the usual approach is to take as the starting point the level of damages which would have been awarded without reference to the impact of the offer of amends, and then to discount as appropriate for it, KC v MGN Limited [2012] EWCA Civ 1382 per Judge LCJ at [45].

The two-staged process has also been described as follows: “The first stage is to identify the figure I should award at the conclusion of a hypothetical trial in which the defendant had done nothing to aggravate the hurt to the claimant's feelings (e.g. by pleading justification or by insulting cross-examination) and nothing to mitigate (e.g. by the publication of an apology). At the second stage, I must consider to what extent, if at all, that figure should be discounted to give effect to any mitigating factors of which this Defendant is entitled to take advantage.”, Turner v News Group Newspapers Limited & Another [2005] EWHC 892 (QB) per Eady J, at [45].

There is a difference between the parties about whether the December 2018 apologies should be considered at stage one or stage two. Either way, it is agreed that they merit a discount to the amount of compensation payable. The claimant says they fall within stage one, whereas the defendant’s analysis places them within stage two. It seems to me that on the facts of this case they are best considered within stage one.

As identified in KC (supra), the purpose of the first stage is to identify what would likely be awarded had an offer of amends not been made. If the claimant had brought substantive proceedings for libel, the December 2018 apologies, and the other steps taken at that time, would be considered by the court when assessing damages. It is rare for two apologies to be published following a libel, and Eady J’s reference in

This approach is consistent with that taken in respect of aggravation in Barron & Others v Collins[2017] EWHC 162 (QB) when it was said: “It would seem logical… to take any aggravation of harm into account at the step in the analysis to which it chronologically belongs. So, where the circumstances justify it, aggravation that has occurred prior to the offer of amends should be reflected in the stage one figure; later aggravation may lead to a reduction in the discount at stage two and could, in an extreme case, yield an increase in the stage one figure.” per Warby J at [54].

The principles on which damages are awarded in defamation proceedings were referred to by Sir Thomas Bingham MR in John v MGN Limited [1997] QB 586 at p607:

The notional “ceiling” on libel awards is currently about £300,000. Awards at that level are reserved for the gravest of allegations, such as imputations of terrorism or murder, and each individual case must be placed in its proper position on the scale that leads up to this maximum, see Barron v Collins (supra) at [26].

InBarron & Another v Vines [2016] EWHC 1226 (QB) at [21], Warby J made some additional observations on damages:

Section 3(5) of the 1996 Act provides that in making its assessment: “The court shall take account of any steps taken in fulfilment 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 purpose of the second stage is to consider how far the resort by the defendants to the statutory procedure has in fact served to mitigate the damage, Angel v Stainton & Another [2006] EWHC 637 (QB) per Eady J at [29]. As was pointed out by the

In Barron v Collins (supra), Warby J identified some of the factors that bear on the level of the discount [29] – [33]:

The defendants ask the court to make a single award in respect of all the publications, worried that otherwise there might be double recovery. This is the reverse of the position taken in correspondence where it appears that the defendants pushed for the claimant to split the damages as between the two publishers. The defendants have confirmed they would be prepared to be jointly and severally liable for any award.

The claimant says that there need to be at least two awards, one against each defendant. Otherwise, it is said that this could lead to problems with enforcement, or if one defendant appeals and the other does not. It is also said that the cases against the two defendants are different, including in terms of readership, only one defendant publishing the December apologies and the Kent Live website suggesting that there might be a classroom ban.

In an action in respect of two or more libels, the court has a discretion to compensate the claimant by a single award of damages: Lisle-Mainwaring v Associated Newspapers [2017] EWHC 543 (QB). In that case, whilst there were two defendants, the court was asked to treat them as one.

The reality in this case is that the articles were written by the same person, and certainly the first three articles were materially the same. They were published within days of each other. The offer of amends was made in respect of all the publications, and the negotiations appear to have been conducted on a global basis. The June apologies were also identical, save for the additional words at the end for the one published by Kent Live. None of the parties have suggested that they need an award to be split for costs purposes.

I think it would be artificial to seek to separate out the awards, add an unnecessary level of complexity to the damages calculation and introduce a real risk of doublecounting. Given the confirmation from the defendants that they will accept joint and several liability, there does not appear to be any compelling reason why split awards are needed, or desirable.

The claimant’s evidence explains how he was affected badly by his suspension from teaching, and the disciplinary process. He describes his relief when he received the TRA’s letter and the formal confirmation that he could continue to earn a livelihood teaching, which is what he is passionate about. Until this point, he had not felt able to return to a teaching job and believed that he would not get a job whilst he was under investigation. This is the position he was in prior to the publication of the articles.

The claimant says he was devastated and very distressed to see the defendants’ reports on the outcome of the TRA hearing. He was particularly concerned by the suggestion that the TRA decision had affected his ability to teach, and that the articles suggested that he had been sacked as a result of the regulator’s decision. His statement refers to the difficulties he had experienced trying to get matters corrected, Kent Live’s decision to publish further defamatory material and the need to resort to solicitors to get matters sorted out. The claimant’s evidence is that since the articles he has suffered increased stress and anxiety. He now has low self-esteem and does not feel able to socialise, embarrassed by what has been published. He says that not a day goes by that he does not think of the articles and the effect they have now had on how he is perceived in the community. He describes the adverse impact that the publications have had on his home life and his family relationships.

The claimant says that the articles have also damaged his reputation as a junior rugby coach and referee. He feels he can no longer confidently offer his help in the local club and that since the articles were published he has received fewer invitations to participate and contribute to the club’s events. He feels ostracised in his local community, which is also his hometown where he was born and raised.

The allegations published went to the core of the claimant’s professional reputation. It is relevant here that he is a teacher, and so any suggestion that he might have been violent towards a child, or left them so unsettled that they did not want to go to

These allegations were made in a respected national newspaper and a mainstream local news website. The articles purported to report a professional regulator, adding credibility to what was being reported. This was not simply an aggrieved parent making allegations to the press.

The Sunday Mirror newspaper sold 423,783 copies on 16 December 2018 and it is generally accepted that readership will be higher than this. The Mirror online article received 18,925 unique user views with the average time each user spent on the article being 22 seconds. Of course, the number of readers might be lower than this if someone has accessed the article using more than one device, although equally it might be higher if more than one person has seen the article on the same device, for example on a shared tablet.

The two Kent Live articles combined received 8,441 unique user views. Whilst a relatively modest figure, these readers are likely to be local to the area in which the claimant lives, and where his professional and personal reputation matters most. There is evidence that the second defendant used Facebook to promote articles, and it seems likely that some of the article views will have been generated by the second defendant drawing readers attention in this way to the news story on the website.

I accept that there might have been a degree of overlap as between the readership of the print and online versions of the Mirror, and between the two websites, but in the absence of evidence it seems unlikely this was substantial.

In respect of the Mirror articles, credit must be given for the December apologies which were published quickly and it seems in good faith. Whilst the wording was not agreed, the claimant was provided with a draft and invited to comment. It would have been better for the claimant to have been given longer in which to consider the wording, but I can understand why the first defendant would have wanted to avoid delay and meet the print deadline for what is a weekly publication.

The December apology did not come across as grudging or insincere. It corrected perhaps the most serious error, which was the suggestion that the claimant had been found guilty of professional misconduct. It would have been implicit from this that no sanction would be imposed. I note that the apology did not seek to correct some of the details in the article about the incident, but this was less straightforward given the factual finding of the TRA. There was also an apology: whilst the claimant might have wanted this directed to him personally, the ordinary reader would have got the gist that the newspaper was saying sorry.

In respect of the claims against the first defendant, it seems to me that substantial credit needs to be given for the publication of the December apologies, which would have gone a long way to addressing aspects of the harm caused by the publication of the Mirror articles.

Whilst acknowledging that each case turns on its own facts, I have been provided with comparators by both sides. I am grateful to Mr Dean for providing adjusted figures to reflect inflation, following the approach taken by Warby J in Barron v Vines (supra).

Mr Dean has relied on the following:

Ms Michalos QC relies on

The claimant says the Lisle-Mainwaring award is about the right starting point for publication in one paper alone. Off the cuff, it was suggested by Mr Dean that the stage one figure should be around £80-100,000 for the four articles together, before any Burstein reduction.

The defendants suggest that the relevant bracket is £50,000 to £60,000, although their calculations are based on the December apologies falling within stage two, whereas I have taken them into account at stage one. The defendants suggest the closest comparator is Angel, in which the allegations went to the claimant’s professionalism. The defendants say that whilst the allegations in that case were much more serious, the publication was more limited. They say the other examples relied upon contain allegations much more serious than those made against the claimant. They say this case is only of moderate gravity, that the material was hurtful and unpleasant but was not remotely comparable with allegations of terrorism or fraud or criminality. They also rely on the fact that the claimant’s evidence identifies that some of the distress and hurt he has suffered pre-dates the articles and arises out of the incident and his dismissal, although clearly he is not entitled to recover damages in respect of such matters.

I can accept that the publication of the articles would have been hurtful and humiliating for the claimant given that much of his life was focussed on working with children, and the events related to the local community in which he lives. I can also accept that it would have been distressing, placing on hold his plans to resume his career. This distress must have been heightened on the publication of the Updating Kent Live article.

My starting point is to consider the agreed meaning of the articles complained of, which the defendants have agreed to compensate the claimant for. This is not just a case where the claimant has suffered distress and hurt feelings. Whilst the allegations were not at the most serious end of the scale, they would have been highly damaging to the claimant’s professional reputation, not just as a teacher but in respect of his work in the community as a children’s rugby coach. In addition to the publication in a national newspaper (and its website), the article was published locally to people who know him, which I consider to be significant. Also relevant here is the initial response of Kent Live, causing further harm to the claimant’s reputation and additional hurt and distress. Taking this into account, I consider an award of £85,000 to be appropriate. From this I need to deduct something to give credit to the first defendant’s mitigation through the publication of the timely December apologies. I consider around 15% to be appropriate, bringing damages to £72,000.

In Abu v MGN Limited[2003] 1 WLR 2201, Eady J explained that with an offer of amends case, “the principles to be applied, whether in the course of libel proceedings or without action having been brought, must be taken as intended to be precisely the same as on any assessment of damages in such proceedings. Those principles take account of such issues as mitigation, aggravation and causation of loss”. Later, in his judgment, Eady J noted: “What the defendant cannot do, of course, is to allege directly or indirectly that, in any defamatory meaning to which the offer relates, the words complained of were actually true. That would be impermissible as “justification by the back door”.

Burstein particulars are directly relevant background context which go to the

There is a dispute about whether the bare fact of the claimant’s dismissal from his job (and his subsequent unsuccessful appeal) is admissible on this basis. The defendants clarified during the hearing that are not suggesting that the dismissal was justified, or that the fact of dismissal is, in itself, evidence of the truth of any underlying allegation. They say that the fact that someone has been sacked from a job is, in itself, relevant background context whether or not their dismissal was warranted and that it would be unreal to say that this is not relevant to harm and his reputation.

The claimant says this is hearsay opinion evidence about his conduct, and is not admissible as evidence of truth. The simple fact that he was dismissed does not take matters anywhere.

Certainly, the fact that the claimant lost his job is a key piece of information within the articles complained of, and the claimant himself refers to it in his witness statement. It relates to the same sector of the claimant’s life, namely his profession as a teacher. I consider that the bare fact that the claimant has been dismissed from a job is admissible, subject to the qualifications I have outlined.

The parties accept that the facts set out in the TRA decision are correct, and that the findings reached are admissible and relevant.

It is agreed that the compensatory award should be reduced to take into account relevant background information. The defendants say this should be a 50% reduction, so that the claimant is only compensated for the incremental reputational damage caused by the untrue allegations when set against the true position, namely that he had been sacked and found by the TRA to have behaved inappropriately and used unreasonable force in his contact with the pupil. The claimant suggests a discount of closer to 10% is more appropriate.

I accept that what happened on 3 February is relevant to the assessment of damages, and should reduce the amount of compensation payable. Whilst the claimant was not found to have breached the applicable regulatory standards, the fact remains that he did behave in a way that the TRA considered to be inappropriate. Whilst recognising that the incident should not have happened, it is important to go back to the agreed meaning of the articles that were published. The publications turned a momentary lapse of judgment considered minor by the regulator into a serious, career-threatening incident that resulted in a child being caused emotional and educational harm. Looked at in this way, whilst the Burstein material is clearly relevant, it seems to me that it does not justify more than a 15% reduction to the stage one figure, bringing it to £61,200.

The claimant says that the defendant is not entitled to any discount. It is said that the defendant was aware that the claimant did not want the June apology to be published and that it would be worse than nothing, and that the apology in effect repeated parts of the libel which the defendants accept were untrue. It is said that the apology had an aggravating effect, rather than a mitigating one.

The defendants say the appropriate discount is 50% as there has been serious delay on the part of the claimant in pursuing his claim for which no proper explanation has been offered. It is said it would be contrary to Article 10 to expect the defendants to publish a correction and apology that glosses over what did, in fact, happen. I remind myself that the defendants’ proposed stage two figure includes mitigation arising out of the December apologies, which I have already taken into account at stage one.

There are three main points in the defendants’ favour.

Firstly, there is the fact that they made the offer of amends promptly, not long after the letters of claim were sent. This will have given the claimant the comfort of knowing that the defendants were not going to seek to justify what they had said (which he would have known as far back as December).

Secondly, there is the fullness of the offer of amends. Whilst qualified, the agreed meaning went further than that proposed by the claimant and included an offer to make amends in respect of additional allegations. Furthermore, the defendants did not just send a letter complying with the statutory requirements. They included a direct apology to the claimant and, in addition to the required remedies, offered a bilateral statement in open court and undertakings.

Thirdly, the open correspondence also shows the defendants doing what they could to try and resolve all the issues in dispute, with the momentum coming very much from them rather than the claimant to get this all sorted out and to avoid the need for a contested court hearing.

The main point against the defendants arises out of the June apologies.

I acknowledge that they were published reasonably soon after the offer of amends had been accepted and that attempts were made to try and agree a compromise. Without sight of the WPSATC correspondence, it is difficult to get a complete picture, and the

The main problem is that what was published was grudging, unsuitable and insufficient in terms of providing adequate vindication, restoring the claimant’s reputation and reducing the distress and upset caused to him. For me, there are four main difficulties:

Clearly, the defendants should not be expected to publish something that is misleading. Whilst the TRA decided that the incident did not cross the threshold of seriousness to justify a regulatory finding of unacceptable professional conduct, the TRA did make factual findings and certainly did not say that what happened was appropriate. I can see that it might be felt necessary to refer in some way to the background to avoid giving a misleading impression, but this needs to be done in a way that is consistent with the purpose of the correction and apology, which is to mitigate harm. It is relevant here that in December, the first defendant published wording that managed to correct matters without misleading its audience or referring to the detail of the story. Given this, it is difficult to see why this has been such an issue.

The claimant says that the closest comparable case is Barron v Collins where the judge made a “generous” “residual discount” of 10% in a case where the offer had been made late and no steps taken to implement it. That is not the position here. It needs to be remembered that the apology is not the only mitigating feature likely to be derived from the use of the offer of amends procedure. The claimant has had the benefit from the outset of knowing that the defendants are prepared to pay proper compensation and costs, and to subject these to judicial determination if they are not agreed. The claimant has also known from the outset that the defendants were not seeking to defend what was published as being true. Taking this into account, I am going to apply a discount of approximately 20%, bringing damages to £49,000. This stage two discount would have been higher if the first defendant’s December apologies had not already been taken into account at stage one.

I have set out the calculation of damages in a linear format, step by step, which is also the approach taken by the parties in submissions. I am conscious that this could lead to a distortion in the proper amount that should be awarded. The award of libel damages is not a scientific exercise, and so it is important that I step back and check that the sum I propose to award is proportionate and appropriate, taking into account the evidence and the respective Article 8 and Article 10 rights of the parties. I am satisfied that it is, and that it is also consistent with the wider comparative framework identified.

I am told by Mr Dean that this is a case in which the conditional fee agreement was entered into before the change in the recoverability of success fees within defamation proceedings. He has explained that the current position on the authorities is that the 10% uplift in damages introduced by Simmons v Castle [2012] EWCA Civ 1039 is provided “in lieu of the opportunity to recover a success fee”. It was said that if a party has a CFA which is of a type which allows them to claim a success fee then they are not entitled to the additional 10 per cent on the damages (the penny). (see Gulati v MGN [2016] FSR 12 at [163] – [166]).

The defendants have indicated that at any costs assessment they will be arguing that a success fee should not be recoverable in this case because it would be contrary to Article 10. The claimant’s concern is that if this argument is accepted by a costs judge, and the 10% damages uplift has not been applied, then that would unfairly deprive the claimant of compensation.

I am not asked to reach any decision on this point. It does, however, seem to be answered by Gulati: in this case, the claimant has the opportunity to recover a success fee, and so it appears to follow that they are not entitled to a 10% uplift. The claimant’s costs must be assessed in the usual way, and the costs judge will take a decision on whether to allow the success fee to be recovered, or not. If he or she decides not, I have not been shown any authority to suggest that this would entitle the claimant to an uplift.