§ Where, in an appeal against a judgment or order in an action for libel tried by judge and jury, the appellant appeals against the amount of damages awarded, any appellate court shall have the same power to vary the amount of the award as if the trial had been by judge alone.—[Mr. Eyre.]
§ Brought up, and read the First time.
§ 11.5 a.m.
§ Mr. Reginald Eyre (Birmingham, Hall Green)
I beg to move, That the Clause be read a Second time.
I wish to explain the contents of the Clause by reminding the House that the purpose of the Bill is to assist the Press, radio and television in their task of giving improved publication in matters of public interest. This is particularly so in the exposure of widespread frauds which have caused such grievous loss in recent years to thousands of small savers and insurers. It is, therefore, very desirable that the Press should be able to give warning to ordinary people of developing dangers in transactions of this kind.
The Press, both local and national, deserves great credit for the way in which it tries to serve the public in this respect, but the Press takes great risks in carrying out that duty, and we should ask 1846 ourselves whether the balance of risk is fair in this respect. One of the elements which make up the balance is the measure of damages awarded in libel cases. Of course, a person responsible for defamation must pay adequate and proper damages, but the amount of damages should be compensatory and not penal.
In its original form the Bill proposed that damages should be decided by the judge alone, but, having listened to the speeches of hon. Members on Second Reading and in the Standing Committee where the Attorney-General, despite his customary skill and charm in debate, was defeated on his Amendment, even though on this occasion by the casting vote of the Chairman, I am still persuaded that the original proposal was not the best solution to the present difficulty.
It interested me that in Standing Committee the Attorney-General argued that since 1965 no excessive damages had been awarded by a jury in cases of this kind; but, on the other hand, it is clear that in some cases decided in the years immediately prior to 1965 excessive damages had been awarded in cases involving juries, as the subsequent decisions of the Court of Appeal have made perfectly clear.
The disadvantage of the present system is that if the Court of Appeal finds that there is substantial error in the amount of damages awarded—that is, if the jury have got it wholly wrong in this respect—the Court of Appeal can only order a new trial with all the expense that so unreasonably follows for the parties involved in the case.
The danger also is that a new trial could result in the same silly decision as to the measure of damages by a new jury. That is why, in this proposed Clause, I have provided that the Court of Appeal shall have the same power to vary the amount of the award as if the trial had been by judge alone. I submit that this Clause strikes a proper balance, and, in response to the persuasive arguments, the present functions of the jury have been retained but the power of the appellate court would enable a just and fair sum of damages to be fixed, with the avoidance of the cost of a new trial.
I am encouraged in putting forward this Clause by the approving tone of the 1847 remarks which were made by the Attorney-General in Standing Committee when this matter was debated in detail and when I made some reference to a possible change in the proposal along these lines.
I trust, therefore, that he will give his approval to the Clause which, I believe, would considerably improve the present position.
§ Mr. Donald Dewar (Aberdeen, South)
One of the difficulties confronting me in this debate is that the Bill as framed affects the United Kingdom as a whole, but there are several questions in regard to which rather separate considerations and arguments apply to the law in Scotland. This question is one such.
I understand that civil jury trials are comparatively rare in England. This is by no means so in Scotland. At present civil jury trials are generally obligatory in Scotland, and certainly very common in all actions of reparation, that is, all actions arising out of personal injury, and they can be avoided only by the consent of both parties or if there is some special reason such as long delay or the existence of difficult questions of law which makes a case unsuitable for consideration by a jury.
This question has been considered recently in Scotland. The whole matter of civil jury trial was investigated in 1959 by a Departmental Committee sitting under Lord Strachan, one of the senators of the College of Justice, the Report having been issued under Cmnd. No. 851. That Committee, I understand, received representations from many sources, including representations which largely followed the pattern of this new Clause.
However, Lord Strachan's Committee—this ought to be stressed—was unanimously against making such a change in the law of Scotland. It was of opinion thatTo allow an unrestricted review of questions of evidence and the quantum of damages would simply be to allow the Court to substitute its own judgment for that of the jury in all cases. If that were permitted there would seem to be little purpose in having a jury trial at all.That is a powerful argument.
Clause 7 of the Bill as originally drafted would have removed the jury's right altogether. The sponsor has re- 1848 treated from that in face of, I think, the general impression that this is a suitable matter for a jury's deliberation and it would be wrong to remove it altogether. The new Clause, however, would extend an open invitation to the Court of Appeal, the higher court, to upset the jury's decision. In some ways, I should almost prefer a straight argument on the first proposal, because then we should have a clear-cut question to decide: should the matter be left to a jury or not?
Under the new Clause, however, the effect would be to say to the jury, "We shall leave you power to decide damages in these cases, but we shall remove from you the final decision". In my view, if this is a suitable question for a jury, it is one which ought to be decided by the jury, and I am not convinced that the proposed halfway house is suitable.
I recognise that there have been criticisms of the present situation from the judiciary when courts have to send cases back for a new trial. There was a fairly widely publicised case in Scotland recently McCallum v. Patterson, in which the second jury also awarded damages which were found by the higher court to be grossly excessive. But I can only imagine that that must be a remarkably unusual circumstance, and, normally, if the Court of Appeal were to say that it found the damages grossly excessive, this opinion would give enormous impetus to the parties to negotiate out of court for a settlement.
If it is made perfectly clear in the judgment handed down that the figure is too high, and the reasons are given, one would expect in almost every case that the expense of a new trial would be avoided by the parties putting their heads together and coming to a mutually agreeable figure in order to avoid the outcome.
However, if the case does go to a new trial—if there is no settlement even though that sort of pressure has applied—there may well be a case for saying that, if the jury does after all reach the same decision, we should follow our rule of trusting a jury and leave it to decide the matter, expressing, in effect, its opinion that the judges were wrong. A good many people might argue, with reference to the case I have mentioned, that judges are being less than generous, underlining the unfortunate tendency, 1849 perhaps, in Scottish law at the moment to award sums of damages which are much lower than those commonly awarded by the courts of England.
In view of the very careful consideration given to this matter by Lord Strachan's Committee and the unanimous opinion which it reached, and in view of the effect of the new Clause which, as I say, would seem to say to the jury, "We shall leave you power, but, at the same time, we shall extend an open invitation to have your judgment overruled, I am strongly of opinion that it would not be right to approve the Clause.
§ 11.15 a.m.
§ Mr. Mark Carlisle (Runcorn)
I support my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre). I welcome his new Clause and his change of mind. There are not many parts of the civil law today in which one still has jury trial, though, as the hon. Member for Aberdeen, South (Mr. Dewar) said, the sphere is rather wider in Scotland than in England. However, I believe that the general area of libel, slander and defamation is one in which a jury should be used. There is probably no better tribunal to assess whether a person's reputation has been damaged than a group of his fellow-citizens.
What worried me about the Clause as it first stood in the Bill was that it seemed to leave trial by jury open, but then removed entirely from the jury any assessment of damage. I do not think that we ought to have this half-trial by jury and half-trial by judge. If there is to be trial by jury, it is right that we should trust the jury in the first place at least to assess the damages, and I am glad that this is to go back into the Bill.
There is no doubt, however, that a limited problem does arise occasionally when a jury, perhaps through unfair prejudice, appears to go berserk in the amount of damages it awards. However serious an attack on a man's reputation may be, one cannot seriously justify giving to a person who has been put into a wheelchair for life, who has become a paraplegic or tetraplegic, the sum of, perhaps, £40,000, and, on the other hand, giving another man, say, £100,000 in damages because somebody has made a comment about him, although he has 1850 been cleared in the judgment. There have been examples showing where the balance between damages awarded for personal injury and damages awarded in a libel action have been wholly out of proportion.
It is right, therefore, that the court of appeal should have power to vary an award of damages when it considers that it is grossly out of proportion.
§ Mr. Dewar
As the hon. Gentleman is arguing, basically, for the retention of the jury's rights in this matter, will he accept that a berserk jury, to use his own expression, would only very rarely be encountered and, therefore, it would not be unreasonable to say that in those circumstances there ought to be a new trial?
§ Mr. Carlisle
I agree that it will not happen often. I myself spoke of the problem as limited. To remove the question entirely from the jury would be to go unnecessarily far in trying to deal with that limited problem, but I cannot see the argument in favour of a new trial. We trust our Court of Appeal to interfere from time to time in the assessment of damages. I do not see why it should not have power to do so in libel actions, where it considers that a jury has gone completely berserk, just as it can in any other action.
In practice, they do not change the award just because it is not the amount which they would have given. They interfere only if they believe that it is completely out of proportion. They would surely take the same attitude in libel actions: they would say, not, "It is £2,000 more than we should have given, so we will reduce it," but, "This is so out of proportion that we will interfere," or, "It is slightly generous, but not such that we should interfere."
This will not lead to many more appeals or interferences with the amounts which juries give, but, in the occasional case when a jury acts out of proportion, it will allow the Court of Appeal to interfere to save the additional enormous cost of a retrial, and substitute a fair figure. I am, therefore, pleased that my hon. Friend has rewritten this part of the Bill. I welcome the new Clause and, perhaps naïvely, hope that the fact that the Attorney-General has his name to Amendment No. 13, to leave out Clause 1851 7, shows a desire to facilitate the passing of the new Clause and is not just part of a general campaign to leave out every Clause.
§ Mr. Edward Lyons (Bradford, East)
I, too, welcome this change of mind by the hon. Member for Birmingham, Hall Green (Mr. Eyre), and I congratulate him on his new Clause.
What is not always apparent to those discussing defamation is that the Legal Aid Act does not cover assistance in defamation cases. That means that anyone who takes on a newspaper does so unaided by the State, and usually by any other agency. If a man had been severely libelled and the jury decided on improperly small damages, it would be an intolerable hardship on the plaintiff to risk all again—also unsupported—on a new trial.
The law of defamation is a jungle even to lawyers. It is a branch of the law where it is easy to go wrong, with many peculiar rules. It is therefore expensive to litigants and it is a good notion to allow the Court of Appeal to vary awards of damages by juries.
Other reasons make the Clause a good one. There is a pressing need for standardisation of damages in all types of cases. This process has begun in recent years in connection with employers' liability cases. It is only recently that books have appeared showing records of damages in particular injuries. It is unfortunate that no judge would regard damage awards by juries as setting a standard for him to follow, but, in some cases, if he saw that the Court of Appeal has made certain assessments, that would be a guide for him and for advocates in urging juries one way or another in defamation actions.
Anything which will produce a body of rational case law on the award of damages for libel and slander actions is a good thing; for that reason, I support the new Clause.
§ Mr. Eldon Griffiths (Bury St. Edmunds)
I support my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre). Although I supported my hon. Friend enthusiastically throughout the Committee stage, on this point I had some reservations which he has now satisfactorily cleared up.
1852 The present system by which a jury determines damages has some conspicuous disadvantages. On the whole, juries tend to assume that all newspapers have vast resources and can meet heavy damages. This is not so. There have been cases in which excessive awards have come close to driving publications out of business. This cannot be in the real interests of the Press or of justice. Also, juries are inconsistent, and sometimes produce diverse damages between different parts of the country and at different times, depending on the state of public opinion. In both these matters, the new Clause would meet my reservations.
It would have another important advantage. Smaller publications on that very narrow margin between profit and loss may be put at risk, even thrust close to bankruptcy, by the delay which can arise between one jury trial and another. Very often, when a small publication has difficulties in meeting its labour, printing and paper bill, the delay and the risk of heavy damages for a long period tends to make its creditors, advertisers and even readers shift away. So this delay could ruin the publication.
§ Mr. Alexander W. Lyon (York)
Would the hon. Gentleman give us some examples of newspapers brought to ruin by delay?
§ Mr. Speaker
Order. It would help the Official Reporters if the hon. Member would speak up. I myself did not hear him.
§ Mr. Lyon
I shall try to speak up, Mr. Speaker. I am sorry that I did not carry as far as the Chair.
I was asking the hon. Gentleman for some examples of the kind of publication which has gone out of business because of a delay between the hearing of the appeal and the hearing of the action on the question of damages.
§ Mr. Griffiths
One case that I have in mind is a damage award against the Spectator, I think, many years ago, which, at the time, came close to pushing the Spectator out of business. I am not sure, but I think that the damages were about £20,000. The new Clause will remove this risk of delay damaging a publication's prospects of continuing in business. I am, therefore, glad of it. It 1853 improves the Bill, and I hope that the Attorney-General will accept it.
§ 11.30 a.m.
§ Mr. Alexander W. Lyon
In what I hope is more than a sibilant whisper, I want to say that although I do not oppose the new Clause with the intention of voting against it I have a somewhat less warm welcome for it than some previous speakers. I have never been impressed by the Press campaign on the notion that newspapers are intimidated by high damages given by juries in libel actions.
Any kind of analysis of the record of jury actions since the last war indicates that in only a very few cases, one of which was the John Lewis case, was the award of damages so outrageous that the Court of Appeal wished to interfere. In fact, in those cases—it was the House of Lords in the Lewis case, but the Court of Appeal in other cases—the Court of Appeal has intervened and sent the case back for a revision of damages.
I do not greatly welcome the provisions of the Bill dealing with defamation, nor do I particularly welcome the new Clause. If the Bill had remained in the form in which it was when it came out of Committee, I would have supported the Attorney General in seeking to delete the Clause which took away from the jury the power to award damages at all.
One of the dangers in the English legal system in the award of damages is that the jury does not interfere sufficiently in estimating the amount of compensation which ought to be paid in damages. It is a great regret to me that we do not use the jury more in ordinary civil proceedings for negligence, or running down cases, or for factory cases.
If the jury were more used in such cases, I very much doubt whether the award of damages would now be so low in comparison with continental countries. It is largely because members of the bench take a very conservative view about the kind of compensation which is adequate in modern times for any kind of jury.
In personal injury cases there is some kind of notion of computation. One can work from the basic figure of loss of earnings and add to it an educated guess about the kind of damages which would 1854 compensate for pain and suffering. But in defamation cases it is practically impossible for the judge to assess the measure of damages to meet the real loss of reputation and injury to feeling which is occasioned by defamation. The bench is bound to expect to receive considerable guidance from juries.
I disagree with hon. Members who have said that juries are inconsistent and that their awards vary so greatly. Juries, on the whole, run within a fairly reasonable measure of damages and only exceed that measure when the damage done to the reputation of the plaintiff is considerable.
This is worse in the case of the Press or other mass media than defamation by an individual, precisely because the defamatory matter has been reproduced to a wide audience. It is in the case of the Press that the judge, if he is to award damages, or a jury as now, will wish to award damages on a considerable scale.
It may be that, even with the new Clause in the Bill, the Court of Appeal will rarely wish to intervene. In those circumstances, I would not wish to see the power withdrawn from the Court. It can still have the power to order a new trial. It does not exclude that power, but it gives the Court an additional power, if it wants it, to assess the damages, a power which, I suggest, the Court will use sparingly.
I add a note of warning to all those gleeful newspaper editors who think that this might be one way of diminishing the importance of the jury. My own understanding of what happens after the Court of Appeal says that an award is too high, in the rare case where that occurs, and sends back the case for a new trial, is that almost invariably the matter is settled.
The case is settled with the plaintiff recognising that, if a cut is made in the award of damages by the jury in a new trial, that cut might exceed the expectations which he might have achieved in negotiations. Therefore, he frequently settles for a figure which might be higher than he would get from a jury, or might be lower. On the whole, the figures tend to be higher than a plaintiff would expect from a jury coming fresh to the case. That was the situation in the Lewis case.
1855 It does not follow that because this power exists even though it might save costs and ease the economic pressure on newspapers, to which the hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths) referred, it does not necessarily follow that there will be a lower amount of damages by reason of the matter being dealt with by the Court of Appeal. The Court might well give an award higher than that which could be obtained on a settlement.
Although I am basically indifferent to whether or not the Clause should go through, I would not oppose it.
§ Mr. Simon Mahon (Bootle)
I should like briefly to add my voice to that of my hon. Friend the Member for York (Mr. Alexander W. Lyon) in sounding a note of caution. I wish to ask the Attorney-General to tell us how the new Clause would affect an individual.
Those of us in the House who are non-lawyers enter into a legal debate with trepidation. But some of us have a good deal of experience of newspapers. Many of us have felt that at times we have been libelled in our public life, as other people have been libelled in their personal lives, by newspapers. For one reason or another we have not been able to have recourse to law—
§ Mr. Speaker
Order. I know that the hon. Member has a keen interest in this Bill, but at the moment we are discussing only one Clause.
§ Mr. Mahon
I am aware of that, Mr. Speaker. I have an interest in the Bill in that I want to protect the individual from the effect which the Clause might have.
It appears to me to give the right to a judge alone to do what now a jury does. As an ordinary layman, I am asking the Attorney-General to give to me and to other non-lawyers in the House some clarification. There is a great divergence of opinion in the House on this Clause.
I should like to support the Clause. I have discussed it with people outside the House, but I should like to have from the Attorney-General the assurance that individuals would be protected, as they are at the moment, by the present 1856 law. I hope that we shall not be taking a backward step if we allow the Clause to go forward.
§ Mr. T. L. Iremonger (Ilford, North)
I give only qualified and regretful support to the new Clause, because I regret that Amendment No. 13, which we are discussing with the new Clause, seeks to delete Clause 7 from the Bill, which I feel to be the best Clause in the Bill. It provides that in all libel actions the amount of damages should be decided by the judge alone.
As I understand, the new Clause now takes away that provision and substitutes what is perhaps better than nothing, but not as good as the situation as it was previously, namely, that where a person appeals against an award of damages given by a jury the Court of Appeal shall be able to vary the amount of the award as though it had been made by a judge alone in the first place.
The defendant in an action for libel, the appellant as we consider him under the new Clause, will be put in the position at the very least of having to risk the astronomical expense of an appeal, and he is not relieved of the great disadvantage that I have always maintained he suffers when he is liable to have the damages in an action for defamation decided by the jury.
I speak from vicarious experience, more sharp and painful than any experience at first hand, in that the person who matters most to me in the world was the victim of an action for libel which had to be settled on terms which everyone recognised to be a travesty of the truth, by a statement in court and an apology.
Counsel said that it was a classic case of fair comment in the public interest, and that it could and should be defended, but that juries were so prejudiced against newspapers that there was risk of having to pay a sum which made it not worth defending the action. This was just after the Lewis case. So counsel advised that it was far better to settle.
That is a very bitter pill to have to swallow. The case was struck from the record. The prospective plaintiffs were 134 valuation officers of the London County Council, who took exception to an article by a member of that council criticising the policy whereby local 1857 authorities used their own employees to assess the amount of compensation to be paid for property which the employing authority was compulsorily acquiring.
I do not want to be out of order. The details of the case are immaterial, but the fact is that on any fair assessment, had this not been a matter which a jury would have had to decide, with a newspaper as one of the defendants, this was a proper criticism of its policy.
It happened, I think for political reasons, that the members of the department chose to say that in the criticism of the policy of the local authority and many other local authorities the professional integrity of the officers employed to carry out that policy was being attacked, and they demanded £1,000 damages.
§ Mr. Iremonger
As I said, Mr. Speaker, I do not wish to be out of order.
But because a jury was involved and was said by leading counsel to be bound to give a biased award of damages against a newspaper the action had to be settled in circumstances in which all equity and justice demanded that it should be defended. Therefore, I am sorry to see Clause 7 go out of the Bill as a result of Amendment No. 13. This will mean that many defendants who should defend will still be obliged to settle.
As regards the whole law of defamation and the award of damages, it seems to many people that one can hardly reconcile the fact that a private individual, especially when carrying out a public duty, is in jeopardy to the tune of thousands of pounds, with the situation in the criminal courts.
People guilty of offences involving cruel, calculated, mean and vindictive acts, causing genuine suffering and physical hardship to others, get away with suspended sentences and fines reckoned in terms of pounds, while in defamation cases, in which the damage, if any, is purely putative, the damages awarded frequently run to thousands of pounds. Those guilty of serious criminal offences would never be subjected to them in a 1858 thousand years; my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) knows well that he never imposes fines running into thousands of pounds on criminals in the recorder's court.
Since the law of defamation bears so hard on people who may be attempting to make proper public criticism, it is quite wrong to take away the protection given by Clause 7 by removing them from the hazards of the arbitrary and capricious judgments of a jury. I very much regret it, but the House is obviously disposed to accept Amendment No. 13, and new Clause 1 at least proposes going some way towards remedying what seems to me a very serious defect in the law.
§ 11.45 a.m.
§ Dr. Ernest A. Davies (Stretford)
I understand from the promoters of the Bill that one of their major objectives is to give newspapers and other media opportunities to expose public scandals and matters of that kind more easily than they can at present. In that sense, I can understand that it is very easy to interpret that an action for libel is always likely to arise between quite powerful bodies, organisations or rich individuals, and the newspaper against which the action is brought.
Bearing that in mind, we can see that it is a very attractive proposition that the judge would be in a sense an umpire between two powerful and conflicting forces, weighing and balancing the whole matter in a very objective way before arriving at a notion of what damages should properly be awarded, if there is a case for awarding damages at all.
When the matter is viewed in that light, Clause 7 seems to embody quite an attractive idea. But those will not be the only circumstances in which awards of damages would be decided by the judge under Clause 7, which Amendment No. 13 proposes to strike out. An individual or small group of people whose means and assets in no way compare with those of a newspaper either in terms of influence or cash might well be involved in an action for libel.
Therefore, I wonder whether the analogy which has been drawn between the judge acting in his objective capacity as a kind of referee and, say, a doctor 1859 making an assessment of a person's loss of earning power, is appropriate in the circumstances.
It is easy to see that if a person has suffered a physical injury a medical expert could say, "The injury is so-and-so. We know from experience that with this kind of injury this person's earning capacity will have been reduced." It may then be possible to arrive at an objective assessment of what damages should be awarded to compensate for that loss of earning capacity.
But in cases of the kind we are considering it is not a simple question of loss of earning capacity but damage to a person's character or standing in society. I do not think that it is possible or desirable to put the entire weight of deciding such a matter on the shoulders of a judge, who, by the nature of his profession, is perhaps to some extent set on one side away from the ordinary comings and going of the rest of us.
Yet it is precisely in the eyes of the rest of us that the character and the standing of the individual making the complaint has been damaged. Therefore, it seems to me that what we want is some kind of reaction, not from the judge set aside in his high place of judgment but from a cross-section of our fellow citizens.
In the case of an individual who has suffered at the hands of a newspaper or a broadcaster, it is surely a group of our fellow citizens who, having seen or read the item complained of, are better able to say, "This is what we would have thought of this man if having read this material, we assumed it to be true. This is how he would have been lowered in our estimation. This is how we would have thought his character would have been lowered and damaged", and therefore, taking into account their own experience in society, they would as a body be able to arrive at a general judgment about what the impact of the defamatory material would be on the character and social standing of the person involved.
It follows from that general line of argument that if they are able to understand the impact on the individual, then, equally, as representatives of society, they are better able to say what they think would be fair compensation, be- 1860 cause as ordinary members of society they are able to put themselves into the shoes of the other person and say, "This is how badly we would feel about it". It is on this basis that they would be able to say, "If we, as ordinary citizens, were caught up in circumstances as unfortunate as that, we would prefer not to have this important element of the case rest in the hands of a learned judge, but would rather have the matter dealt with by our fellow citizens who we feel would understand our position much better and much more adequately than a judge might, despite the fact that if he were ever placed in a position of having to do so he would bend his best judgment to it".
This is a matter which ought to reside with the jury if possible. Therefore, although at first sight Clause 7 held certain attractions, when I considered its impact on an individual caught up in those circumstances I came to the conclusion that it did not seem to be acceptable, and, therefore, I support the Amendment No. 13. By virtue of the same argument which could be extended to deal with the new Clause, I do not feel able to support it.
§ The Attorney-General (Sir Elwyn Jones)
I am glad that in a belated act of conversion the sponsor of the Bill has decided to support the deletion of Clause 7, that being a Clause which provides that in all actions for libel the amount of damages awarded shall be decided by the judge alone. In my view, juries are indispensable in serious criminal cases, and of considerable value in civil cases where the character and reputation of the individual citizen may be at stake. I think that they are the proper tribunal to decide what a defamed and libelled citizen should get by way of damages if he has been libelled.
That seems to be the view which has most support in the House this morning. It was not the view which was held, or appeared to be held, by the Committee upstairs. I say, "appeared to be held", because there were present on that occasion six Members. The vote was three on one side, and three on the other, and the remarkable situation arose that the hon. Member for Ebbw Vale (Mr. Michael Foot) found himself able to support the Attorney-General.
1861 But this, clearly, must have caused a good deal of confusion, because I observe from HANSARD that it is not the name of my hon. Friend the Member for Ebbw Vale which appears as supporting the Attorney-General, but that of the right hon. and learned Member for Ipswich (Sir Dingle Foot), with whom I understand the hon. Member has some association. So it came to pass that it was the casting vote of the Chair which retained Clause 7.
We can now look at the matter afresh. I note from the new Clause that the sponsor's conversion to the view that the jury is the best tribunal for deciding what the damages ought to be in a libel action is not a total one, because his Clause wants to give to the Court of Appeal power to substitute its own estimate of damages for the jury's estimate.
Although it is the case that the Court of Appeal has general power on appeal from a judge sitting alone to substitute for his award of damages the award of a sum which the Court of Appeal considers appropriate, in practice, as I think one of my hon. Friends has said, it does not appear that the Court of Appeal readily exercises this power in libel actions. It has done so on a few rare occasions.
For instance, there was one case, Dingle—no relation to my right hon. and learned Friend the Member for Ipswich—v. Associated Newspapers, in which the Court of Appeal substituted its own award for that of a judge's, but it was apparent from the judge's judgment in that case that he had taken into account in mitigation of damages matters which were irrelevant.
Then, in Fielding v. Variety Incorporated, the Court of Appeal again substituted its own award for that of the judge's because it appeared that the judge had wrongly included a punitive element and miscalculated a pecuniary element in the case Those judicial errors were apparent by and from a reading of the judgment of the learned judge.
The difficulty with a jury's verdict is that it does not reveal all the factors which the jury took into account, or really how they arrived at the sum of damages they awarded. Merely to give 1862 the Court of Appeal the same power to vary the award as it has in the case of a judge's award may not really be sufficient to achieve the object which the hon. Member for Birmingham, Hall Green (Mr. Eyre) has in mind. As the Court would not be able to see where the jury had gone wrong, it would be very difficult for it to estimate what the award would have been if the jury had not gone wrong.
Accordingly, the Court of Appeal might feel that, notwithstanding the new powers which the Clause proposes to give it, it would still have to remit the question of damages to a fresh jury. If the hon. Member's purpose is to be achieved, it might have been better to provide in terms that the Court of Appeal was to have power to substitute for a jury's award the amount which it considered appropriate.
However, I regret to say that, after giving careful thought to this matter, I do not find the new Clause attractive or one which I can commend to the House, although I readily agree that there are arguments for making the change. In my view, they are not as strong as the arguments against. The most powerful argument for making the change has already been made, namely, that new trials are expensive and lead to delay. The substitution of a different award by the Court of Appeal would undoubtedly shorten the litigation and reduce the costs.
Unhappily, that costs in libel actions are high is notorious. Indeed, this was recently the subject of adverse comment by Mr. Justice Blain in connection with the recent action against The Times Literary Supplement. While I am mentioning that, the House may be interested to know, lest some hon. Members may think that juries award damages far higher than a judge is likely to award, that in that case he awarded £7,000 damages against The Times Literary Supplement whereas, as I said in Committee, there was no award by a jury of a sum greater than £5,000 in all the years from 1964 on. If the Press thinks that having a judge alone deciding damages necessarily will result in the award of a lesser sum, that is not a conclusion which it would be safe to reach.
§ Mr. Eldon Griffiths
Those of us who are supporting my hon. Friend are indifferent to whether on appeal the damages would be higher or lower. We are not concerned to protect the Press from proper damages. The issue here is that a judge is in a position to assess the real financial position of the publication and therefore to award damages which would have regard to their effect on the publication.
§ The Attorney-General
The hon. Gentleman made the same point in Committee. He thought that it was vital in the assessment of damages that the tribunal should be equipped to take into account the slenderness of some newspapers' resources.
The fallacy underlying that argument is that it presupposes the true measure of damages to be the amount by which the defendant should be penalised, whereas the reality of the award of damages is the extent of the plaintiff's injury. There is no doubt that in practice neither jurors nor judges entirely shut their eyes to the wealth of a defendant newspaper, and it may well be that against one of the great national newspapers higher sums should tend to be rewarded.
But the logic of the hon. Gentleman's approach is that if a newspaper is impecunious, it may destroy the character of the citizen with impunity and somehow be immune from a proper sum of damages which would reflect in the tribunal's mind the damage which the plaintiff had suffered. His line of approach, in effect, would be that a newspaper existing on a shoestring could publish serious libels with comparative impunity. That may be taking his argument a little further than he intends, but those are the implications.
§ Dr. Ernest A. Davies
The way in which my right hon. and learned Friend has dealt with these arguments appeals to me strongly. Perhaps he will agree with me that it might be possible for a publication not just to have destroyed a man's character or social standing, but thereby to have rendered him bankrupt. We would then have the curious situation that when damages were being awarded, consideration would have to be given to whether a newspaper itself might suffer 1864 serious financial harm, rather than the individual. Further—
§ Mr. Speaker
Order. I must remind the hon. Member and the House that we are on Report stage. The hon. Gentleman has made a speech. He may not make a second disguised as an intervention.
§ Dr. Davies
In that case I will move quickly to my final comment. In the Bill there is no definition of a newspaper. Would my right hon. and learned Friend care to comment on what would happen if the libel involved simply a leaflet and not a newspaper?
§ The Attorney-General
I am grateful for that intervention, which underlines what I was seeking to say.
I have little doubt that in practice a jury would bear in mind some reasonable consideration if an obviously great newspaper with masses of resources behind it were the defendant, as compared with a newspaper of lesser circulation. That factor seems one to which a jury of reasonable men would be able to give proper consideration.
In the assessment of damages, the right to trial by jury in libel actions is justified on many other grounds. The fact is that the assessment of compensation for injury to reputation is not a matter of careful statistical analysis, or of comparison with similar injuries and awards in similar cases brought by other persons. There is no kind of tariff in defamation cases as there is in personal injury cases.
I think that trained lawyers are not necessarily better qualified to assess reasonable compensation than laymen and that 12 ordinary men and women are just as capable of making a good job of it as is a trained lawyer. After all, since Fox's Libel Act of 1792 it has been thought that juries are the better instrument for carrying on this task, and now that juries are better educated than they have ever been, they are at least as well equipped now as they have ever been to perform this task.
The Court of Appeal, of course, is more qualified to decide that an award may be wrong in principle, but it does not follow that a jury is less qualified than the judge himself to decide the right 1865 award. In considering this matter, I have been impressed by the observations of my hon. Friend the Member for Aberdeen, South (Mr. Dewar), namely, that this precise issue was considered 10 years ago in Scotland by a Departmental Committee under Lord Strachan. It went into this very issue in considerable detail and with much care and was unanimously against the proposals contained in the new Clause.
As has been said, it was of the opinion that to allow an unrestricted review of questions of evidence and the quantum of damages would simply be to allow the Court of Appeal to substitute its judgment for that of the jury in all cases. If that were permitted, there would be little purpose in a jury trial at all.
In all the circumstances, and although I see some merit in the new Clause, the law as it stands is, in my view, reasonably satisfactory and I think that the new Clause should be resisted.
§ Mr. Eyre
With the leave of the House, may I make it clear that my Amendment No. 13, relating to Clause 7, is consequential on the assumption that this new Clause would be successful and that Clause 7 should then be removed to make way for it? I therefore trust that, should the new Clause be rejected on a Division, I should be in order in withdrawing Amendment No. 13, which is in my name, and thus restoring the Bill to its original form.
§ Mr. Speaker
It is a tricky point of order. It is not only the hon. Gentleman's Amendment. Once it is on the Notice Paper, it is before the House. He can withdraw it if the House gives permission. What he might have to do, in the unhappy event which he seems to foresee, is to vote against his own Amendment.
§ Mr. Carlisle
On a point of Order. Has that Amendment been selected? I thought that it was only for discussion, Mr. Speaker.
§ Mr. Speaker
The hon. and learned Gentleman may not have been here when I said that it was selected for discussion with this amendment. It does not have to be moved, but someone else can move it.
§ 12.15 p.m.
§ Mr. Speaker
I am not unsympathetic to the hon. Member's point, but I can only rule on order. If the new Clause should be defeated, the hon. Gentleman's intention would be that Amendment No. 13 was not discussed, so he would do his best to see that it was not discussed. But it is at present still before the House.
§ Mr. Eyre
I should not like to give the impression that I think that the reason of my argument would not be acceptable to the Attorney General and the House.
I apologise for my absence during part of this debate, at the Attorney-General's request. The general tenor, I understand of the remarks of the hon. Member for Bradford, East (Mr. Edward Lyons) and my hon. and learned Friend the Member for Runcorn (Mr. Carlisle) was favourable. I understand that the hon. Member for Aberdeen, South (Mr. Dewar), however, had little confidence in the Court of Appeal and suggested that the members of that august body would usurp the function of the jury. I feel strongly that that would not be so. Deciding damages in libel cases is often very difficult.
When the hon. Member for Stretford (Dr. Ernest A. Davies) said that the damages should be decided by a cross-section of the population, he expressed a basic truth, but the record proves that, on rare occasions, the jury is wildly wrong. In support of that, I would quote from the speech of the Attorney-General on Second Reading of the Bill, He referred to Lord Denning having made it clear… on several occasions both in the Court of Appeal and elsewhere, the Court of Appeal regards itself as having power to set aside an award by a jury if it is out of proportion to the circumstances to the same extent as an award by a judge. It is interesting that in a case in 1967 where the two plaintiffs had been awarded by the jury £4,000 each by way of damages the Court of Appeal ordered a new trial on the operation of damages and Master of the Rolls went so far as to suggest that a reasonable sum would not exceed £1,000 for each of the plaintiffs."—[OFFICIAL REPORT, 31st January, 1969; Vol. 776, c. 1735.]The right hon. and learned Gentleman was, therefore, quoting evidence in support of my argument today.
Contrary to his view this morning, all evidence is before the Court of Appeal in dealing with the damages in cases of defamation. It is not like a case of 1867 physical injury, in which the court cannot see the victim. In the past, the Court of Appeal has been able to put matters right when the jury has been wildly wrong. I regret that my hon. Friend the Member for Ilford, North (Mr. Iremonger) does not agree with the new Clause, and I understand his personal reasons for that view, but the general balance of argument favours it—
§ Mr. Iremonger
It is not that I do not agree with the new Clause: I am sorry to see the other one go and to have nothing better than this. But it is better than nothing.