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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Thornberry v Coleman [2001] EWCA Civ 1858 (27 November 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1858.html Cite as: [2001] EWCA Civ 1858

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE GRAY
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London WC2 Tuesday, 27th November 2001

Tuesday, 27th November 2001

1. LORD JUSTICE TUCKEY: This is a renewed application for permission to appeal by Mr Thornberry, the claimant in these slander proceedings, who after a trial before Gray J and a jury was awarded £1,000 damages. This award failed to beat a payment into court and the judge made the usual order where that happens which has resulted in the claimant being substantially out of pocket.
2. It is contended on his behalf that the judge made errors of law in his summing-up on the question of damages and that the jury award was so inadequate as to be outside any reasonable range of response to the wrongs which they found had been committed; in other words it was perverse.
3. The claimant is a property developer and at the material time he wanted planning permission for further development at the Conference and Leisure Centre run by his company in Hemel Hempstead. At this time the defendant was the leader of the local borough council who were the planning authority.
4. The claimant's allegations, in substance, were that on two occasions in September and December 1997 the defendant had described him as a crook to a fellow councillor: on the first occasion, to one councillor in the presence of another, on the second to a third councillor. The slanders were therefore uttered to a very limited audience, although there was some evidence of republication to a fourth councillor.
5. The defendant denied that she had spoken the words complained of. The jury obviously disbelieved her and one of the councillors to whom she had spoken the offending words who similarly denied that any such words had been spoken. Before the proceedings started, however, she had written a letter to the claimant in which she said:

"My overriding concern is and always has been to ensure the proper and efficient running of the council and its business. Therefore as a gesture of goodwill I am writing to confirm personally to you, as my solicitors have already done on my behalf, that at no time did I ever accuse you of being a crook or of being dishonest. I have no reason to say such things and am happy to undertake to you personally that I will not say them in the future..."

6. This letter features among the claimant's grounds of appeal.
7. Taking those grounds of appeal in order of importance, the first point is that the judge should have asked the jury to bring in separate awards of damages for each slander in the same way as they were asked to give separate verdicts on liability.
8. In deciding to ask the jury for a single award the judge was persuaded to follow a passage in Gatley at paragraph 35.6. On this renewed application Mr Hockman QC for the claimant (as he was at the trial) concedes that this passage shows that it was within the judge's jurisdiction to ask the jury to return one award of damages even though there were two slanders. The slanders were said to bear the same meaning and the transcript shows that the judge's concern was to avoid asking the jury too many questions and the risk of duplication. Mr Hockman says this was an artificial approach not least because it undermined the direction the judge gave about the bracket for damages.
9. I do not agree. The judge's decision cannot be characterised as an error of law. At most it must be argued that he exercised this discretion incorrectly but I can see no basis upon which this court would interfere with the exercise of the judge's discretion on this issue. The jury must have been aware that they could award more damages for two slanders than they could for one.
10. Mr Hockman's next point is that the judge's direction on aggravated damages was inadequate. As he put it to us this morning, the judge seriously undersold the claimant's case on aggravated damages. The points in favour of an award of aggravated damages were made forcefully by Mr Hockman in his closing submissions to the jury. However, Mr Hockman complains that the judge should have told the jury that if they found the slanders proved then the so-called letter of apology, to which I have been referred, was itself an aggravating factor because it maintained the denial of the slander and could not, as the defendant had contended, been a mitigating factor. Mr Hockman's second complaint is that the judge did not, in terms, remind the jury that the defendant's spite in making these statements could be taken into account.
11. The judge gave a conventional direction about aggravated damages in which he said that the jury could increase the award of damages if they were to conclude that the defendant had by her conduct aggravated or increased the original injury to the claimant. He reminded them of two aggravating factors, the first of which was that the defendant had been called a crook apparently without any enquiry and without any basis in fact, it not having been suggested that there was any justification for the allegation. But this was the foundation for the allegation of spite from the fact that the claimant had been called a crook without any enquiry and without any basis in fact. The jury had been invited to infer that the defendant had been spiteful. In putting the matter to the jury in the way he did I see nothing wrong with the judge's summing-up.
12. As to Mr Hockman's first point the judge said:

"The second aggravating factor is that Miss Coleman has denied from first to last that she spoke these words attributed to her. If you were to come to the conclusion that she did speak those slanders, then you would be entitled to regard as an aggravating factor her false denial that she had said any such thing."

13. There it seems to me the judge was making the very point that Mr Hockman says he should have made in that the defendant had falsely persisted in her denial of these slanders. That is what Mr Hockman's complaint about the letter was and it seems to me that the judge did do just that, although he did not refer in terms to the letter. I can see nothing wrong in the way that the judge dealt with aggravated damages. It was not the judge's task to set the claim for aggravated damages to music. As he said in the course of the submissions, that was largely counsel's job and it is clear from the transcript that Mr Hockman did just that.
14. The final point of law on the summing-up is that the judge omitted to remind the jury that the comparative wealth of the parties was irrelevant to their consideration of the amount of damages which they should award. In the course of submissions about this the judge accepted Mr Hockman's point that:

"Your Lordship might just indicate that her financial position is of no relevance one way or the other."

15. The defendant's counsel accepted this as well.
16. In the course of his summing-up the judge did remind the jury that they should not take into account any consequence in terms of legal costs as this was a matter for him, but he did not refer to the respective financial position of the parties as he said he would. He is obviously open to criticism for this, but I do not think this could possibly justify this court setting aside the jury's award. In his submissions to the judge Mr Hockman (he says, for well known reasons of tact) described this point as "one very small matter". But one can also derive some view as to whether it really was a very small matter or not from the fact that although there was discussion after the judge had concluded his summing-up but before the jury retired about what he had or had not said, this was not a point which Mr Hockman raised. For this reason I do not think this is a point which carries the claimant's prospects of any appeal very far at all.
17. Finally, Mr Hockman says that the jury's award was perverse. These, he says, were serious slanders. The denial was persisted in. The judge had put the lower end of the bracket in the lower thousands and the jury's award was less even than that. A proper award, Mr Hockman submits in his skeleton argument, should have been at the top end of the bracket which the judge put at £15,000 or a little higher.
18. Mr Hockman urges a number of points in support of his contention that the award was outside any reasonable range of response and says in effect that something must have gone wrong. He points to the errors of law in the summing-up, to which I have referred, as an indication that this is where the fault lies but says that if one cannot pin the blame on any of those points we must conclude that the jury just got it wrong.
19. But awards of damages in cases such as this are quintessentially a matter for the jury and this court will only interfere if the award is perverse. The judge's bracket was, as he made clear, only a suggested bracket. The jury were obviously entitled to take into account the very limited number of people to whom the words complained of were spoken and the fact that, although understandably the claimant was very upset when he learnt what had been said, he sustained no real or lasting damage as a result of these slanders. I can see no real prospect of the claimant persuading the court that this award was perverse.
20. For these reasons I do not think any of the grounds advanced by Mr Hockman, skillfully though they were, individually or cumulatively give the claimant any real prospect of success in this court and therefore permission to appeal must be refused.
21. MR JUSTICE PITCHFORD: I agree.