Libel, or defamation, is a civil wrong, or tort. Any award of damages in a tort case should begin with the court determining the amount of money necessary to bring the injured party back to the same situation they would have been in had the tort not been committed. Libel damages are awarded only for restorative purposes; there is no criminal component to the process.
Unique Calculation of Libel Damages
Because of the nature and history of libel, as well as its emphasis on reputational loss and the restorative vindication of reputation, a unique method for calculating damages for defamation has developed. In Monir v. Wood [2018] EWHC 3525 QB, Nicklin J. noted at [228] that “damages for libel cannot be calculated on any mathematical basis.” By definition, their goal is to make up for harm that is nearly impossible to put a monetary value on. Therefore, the exercise must be comprehensive and wide-ranging.
Aggravated Damages in Defamation
In Lachaux v. Independent Print [2021] EWHC 1797 (QB) at [227], Nicklin J. observed regarding claims for aggravated damages in defamation:
“It is superfluous and, in my opinion, generally foolish to separate out a special award for aggravated damages. It is the responsibility of the Court to determine the appropriate amount of compensation, accounting for all pertinent circumstances, including any aggravating circumstances.”
If the authorities are correct that calculating libel damages is never a precise or scientific process, assigning a numerical value to something as vague as annoyance is implausible. Worse, it risks seeming directly linked to the defendant’s actions because it would impose a clearly defined additional amount of money. This almost appears to be a punishment. Therefore, it is preferable to establish a single judgement to compensate the claimant in accordance with the standards used to determine damages in defamation cases. Any further harm and suffering the claimant may have experienced as a result of the defendants’ actions can be fairly represented in the award.
Intellectual and Fact-Specific Basis
In addition to being comprehensive and all-encompassing, the exercise is carried out, in the words of Mr. Green KC, Leading Counsel for Mr. Fox, “on an intellectually fact-specific basis” within a framework of principles. One aspect of this principle framework is the preservation of broad comparability both within and between torts. Although no two defamation cases are ever truly the same, previous awards in similar cases may be considered. This helps ensure that damages for defamation are reasonable and viewed as such.
Relevant Legal Concepts
I have referred to the paragraphs in Sloutsker v. Romanova [2015] EWHC 2053 at [74]–[82] and Barron v. Vines [2016] EWHC 1226 at [20]–[21] that outline the pertinent legal concepts, particularly applicable to the tort of defamation. In defamation cases, an award of damages is intended to make up for harm done to a party’s reputation and feelings, and to support the claimants as financial resources allow. Compensation and vindication should not be viewed in siloed terms; the award’s overarching goal is to put the claimant back in the same position as before the libel, to the extent that financial resources allow.
Focus on Seriousness and Scope
The court considers all pertinent information for determining damages, focusing on the seriousness of the defamation, the scope of its publication, and proof of the harm it has caused. The exercise’s defining characteristic is fact sensitivity, with facts shown by evidence in the customary manner. However, the nature of the fact-finding and evidentiary processes involved recognises the fundamental imprecision and intangibility of the harms and remedy at the centre of the effort.
Understanding the structure and calculation of libel damages is crucial for anyone involved in a defamation case. By following the principles and guidelines set out by the courts, you can better navigate this complex area of law.
