Defamation Trials: Length (Hansard, 9 March 1992)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, in 1991 there were 18 trials for defamation in the High Court. The average length of those trials was just over six days. The longest trial lasted 14 days and the shortest two days. It is at the interlocutory (pre-trial) stage that defamation actions, with their complex procedure, tend to take up time. With this fact in mind, in February 1990, I invited the Supreme Court Procedure Committee to examine the rules and practice, and to propose reforms. I have received numerous responses suggesting various ways forward, some attractive and all under consideration.
As to the level of damages, an award, whether in an action for defamation or personal injuries, is a matter for the courts. I expect, under Section 8 of the Courts and Legal Services Act 1990, the Court of Appeal will provide a principled system to help to determine the awards in these cases.

§ Viscount Hanworth
My Lords, I thank the noble and learned Lord for that very satisfactory reply. I should like to put two points to him. First, as I understand it, the present situation is that it is the jury, without any real guidance, that decides on the damages. Surely, that is wrong. Members of the jury are laymen and need guidance before they can make a sensible reply. Secondly, does the noble and learned Lord agree that perhaps 40 years ago defamation represented a major damage to the person defamed but that that damage is far less today? Finally, if the noble and learned Lord thinks that those who are defaming need to be warned-off that course, would he consider dividing the damages between the person who has been defamed and those who are defending him or her?

§ The Lord Chancellor
My Lords, in so far as guidance is concerned, the learned judge who presides at the trial gives such guidance as he thinks appropriate to the jury before reaching the award. With the new powers of the Court of Appeal to which I have referred, the nature of that guidance may well be more ample than is possible at present. Whether the 1167 present results of defamation are greater than they were 40 years ago, I am not sure that I am in a good position to judge. It must be for the jury at the time to decide what, in its view, is appropriate in the light of the guidance that it has been given. On the noble Lord's third question, I doubt whether there is any basis in principle upon which such a division could be made.

§ Lord Rawlinson of Ewell
My Lords, does the noble and learned Lord agree with this question? Although there have recently been many rather extravagant awards of damages in defamation cases, the fact that it is a jury that awards the damages in defamation cases provides a salutary discipline for certain sections of the press which would otherwise engage in extravagant and sometimes malicious stories?

§ The Lord Chancellor
My Lords, my noble and learned friend has very great experience of these matters and speaks in the light of that experience. It seems to me that at present there is no consensus on removing the role of the jury in such cases, and one aspect of that may be the aspect to which my noble and learned friend has just referred.

§ Lord Irvine of Lairg
My Lords: is it not the case that awards of damages by juries are generally regarded as fair and reasonable, and that if the jury goes seriously wrong in any case, the Court of Appeal is there to correct things? However, are not damages in personal injury cases regarded as generally far too low, and are they not fixed in accordance with tariffs that are laid down exclusively by judges who say that the loss of an eye is worth only £20,000, that almost total deafness due to industrial causes is worth £10,000 or less; and with the loss of taste and smell being worth about the same amount? Is it not a fact that it is the judges' awards that are too low in such cases and that juries are more often right in defamation cases?

§ The Lord Chancellor
My Lords, it might be a little difficult for me to make an unqualified acceptance of that proposition. I know that when judges make awards in personal injuries actions, they do so after hearing submissions from learned counsel such as the noble Lord. Therefore, they have received help when reaching their conclusion. I have referred the matter of the principle of damages to the Law Commission. It has taken on a study in that area, with particular reference to, but not restricted to, personal injuries actions.

§ Lord Hailsham of Saint Marylebone
My Lords, are there any significant differences between the law of England and the law of Scotland in that respect which might shed some light on the substantive question?

§ The Lord Chancellor
My Lords, I seem to recollect one of the Members of the House in former times saying that the person who wished to dig for his fortune using a Scottish jury as a spade had hard work to do. I suspect that that might be quite a good principle.

§ Baroness Phillips
My Lords, is the noble and learned Lord aware that as the victim of a personal injury, I was annoyed to be told by my solicitor that my shattered leg, which changed my life, was worth £5,000, whereas a certain lady's reputation was worth £50,000? Can we change a stupid law that works that way?

§ The Lord Chancellor
My Lords, I of course share the noble Baroness's feelings about the advice that she received. I would not be able to say whether the advice was well-founded. There is no law which specifies that principle. For all I know, it may be the result of the application of the law to the particular facts in the case to which the noble Baroness referred. The best I can do is to have referred the principle of those matters to the Law Commission for its examination because I believe that this is a subject which is within its field of expertise. I am sure that we all look forward to receiving its report.

§ Lord Havers
My Lords, is it not a fact that over the recent few years personal injury claims have resulted in much bigger awards than used to be the case?

§ The Lord Chancellor
My Lords, my impression is that the level of awards has gone up. Part of those awards normally represents loss of earnings. The award reflects the value of earnings lost. Apart from that, it would be right to say that the general level of awards has gone up. I have recently increased considerably the award for loss of society under the statute.

§ Lord Mishcon
My Lords, does the noble and learned Lord accept that we are all delighted that the matter of damages has been referred by him to the Law Commission? Perhaps I may emphasise the point made by my noble friend Lord Irvine of Lairg that there is a general view that industrial injuries are not properly compensated for by the present scale, even as increased. Does the noble and learned Lord accept that there is at least a case—there is nothing political in this—for uniformity of damages in defamation cases to be looked after by the judge and not by the jury awarding damages?

§ The Lord Chancellor
My Lords, as I said, I appreciate that some people take the view that the level of awards in personal injury actions is low. That is one of the reasons why I referred the question to the Law Commission as one of principle, rather than by dealing with particular cases. So far as the power to award damages in defamation actions is concerned, the step taken by Parliament in the 1990 Act to give the Court of Appeal power to substitute its verdict for the jury's, if it should disagree with the jury's verdict on damages, is a step in the right direction. It enables the Court of Appeal to guide the level of damages without actually supplanting the jury. That may represent the best of both worlds at this juncture.