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It seems there is more than one national lottery. Libel damages awarded over the last 10 years range from 1p to £1.48m. They remain as unpredictable as ever, despite legislative and judicial attempts to bring them into line with personal injury awards.
It has been suggested that the use of expert witnesses may stabilise libel awards, but would this really be the case?
The first attempt to achieve a level of consistency was made by Section 8 of the Courts and Legal Services Act 1990. For the first time, this ruled that the Court of Appeal could alter a libel damages award without the consent of both parties. Unfortunately, this had little effect and in the years from 1990-1995 there were 30 damages awards greater than £100,000.
In December 1995, the Court of Appeal laid down guidelines in an attempt to redress the situation. The case was the appeal by Mirror Group Newspapers against an award of damages to recording artist Elton John of £350,000 in November 1993. The Court of Appeal reduced the award to £75,000 and recommended that juries in libel actions should be given a tariff of comparison with personal injury awards.
But only six weeks later, a case breached these guidelines - a Dr Percy was awarded £625,000 against Mirror Group Newspapers over a libel claim that he had delayed treatment for a patient. There were signs, however, later in the year, that appeals were being negotiated at a more reasonable level.
But even as recently as last March, in a case when the judge made specific reference to the recommendations made by the Court of Appeal, the first plaintiff, Richard Wilmot-Smith QC was awarded £250,000, the second plaintiff, his wife, £100,000, and the third plaintiff, Richard Kirby £80,000 against The Daily Telegraph.
So, where judicial and legislative attempts at producing conformity to damages awards appears to have failed, would expert witnesses assist? The US provides evidence to the contrary. Unlike in the UK, in the US, expert witnesses are relied on in personal injury actions in which juries are used. But in spite of this, personal injury awards have rocketed out of all proportion to the conceivable damages.
This suggests the problem lies with the source of the award. When juries decide the amount of damages, they are likely give verdicts which may run contrary to the guidelines, with or without evidence from an expert witness.
Therefore, the remedy to the current "libel lottery" is to take the award of damages away from the jury, and to bring the use of juries in libel trials into line with their use in criminal trials - to decide the verdict - leaving the judge to award the sentence or damages.