ANOTHER VOICE
Pressdram vs Sutcliffe (on appeal): a legal opinion
AUBERON WAUGH
The Eye version gives no account at all of the summing up by Mr Justice Michael Davies so one cannot judge Pressdram's chances in an appeal which might be based on misdirection of the jury. But someone who was present assures me that the judge did, indeed, warn the jury that exemplary or punitive damages were not an option available to them. If he had not given them that warning, the case for an appeal would be clear. By a 1972 amendment to the Rules of the Supreme Court (Ord.18 r 8(3) added by SI No.1898) after Broome vs Cassell, a plaintiff must specifically plead a claim for exemplary damages, together with the facts on which he relies. This enables the defendants to mount a more elaborate defence, and is to the obvious benefit of the legal profession, whereas in Sutcliffe vs Pressdram, the defendants were represented by junior counsel and called no witnesses.
Since the plaintiff was not asking for punitive or exemplary damages, and since the judge apparently warned the jury that punishment was not an option available to them, we are bound to regard the £600,000 awarded as compensatory, even though it substantially exceeds the largest sum ever awarded even in the punitive or exemplary field. No guidance is ever given to a jury on the subject of proper compensation, and no sums may ever be mentioned by coun- sel, although counsel may suggest ways in which the damage has been aggravated as, for instance, by refusal to apologise, by persistence in the libel, by daring to claim that the original defamatory statement was true or substantially true, by malice, by prior knowledge that the statement was untrue, or even, as it now appears, by neglecting to call evidence on your own behalf.
Some of these aggravations were claimed by counsel for Mrs Sutcliffe, who asked for 'substantial' damages (now taken to be in excess of £5,000) but the jury is not obliged to apportion or explain its award, and the Court of Appeal is most reluctant to criticise a jury's estimate of damages. Very few appeals are allowed on the quantum point — when they are, it is usually tied to a plea of misdirection — and the Appeal Court cannot vary the award (except by agreement between the par- ties). It can only order a retrial. Its guidance on this point, by precedent, is extraordinarily vague. It cannot pronounce an award excessive on the grounds that it would have awarded less, only on the grounds that the figure is 'unreasonable'. They so decide occasionally — the case which springs to all our minds is Lewis and Another vs Daily Telegraph (1964) — and it is possible to suppose they may decide on this occasion. Perhaps, on re-trial, Mrs Sutcliffe will ask for punitive or exemplary damages, as I think she is entitled to do, although the grounds for such a plea are severely restricted. A more likely outcome of such an appeal's succeeding would be some out-of-court settlement between the parties, and I have no doubt that this is what bar, bench, government and adminis- tration would most prefer. None of them wants to see any radical change in the law, and it is painfully obvious that Sutcliffe vs Pressdram has reduced the present system to absurdity. By such a settlement, the problem would have been pushed under the carpet once again.
`What are we going to do about Private Eye and Mrs Sutcliffe?' Mrs Thatcher was reported to have asked on the evening of the court's decision. No doubt her atten- tion has wandered to other areas of per- plexity since then, but the generally accepted solution to the problems it raised was fiat juries should no longer be asked to settle a figure in damages. That should be left to the judge. One may doubt whether such a reform could be introduced without a comprehensive review of the libel law but even if it could, it would only paper over the appalling fissure which has appeared in our judicial and administrative system: the jury system no longer works. If 12 good citizens and true cannot be found to sit in judgment on their fellows, why then should they be allowed to vote, and why should their electoral preferences be heeded?
Mrs Thatcher's entire raison d'être — the explanation for her self-confidence and the bounce in her bottom as she walks — is that more British citizens (on the last occasion they were asked for an opinion) voted for her than voted for anybody else. The obverse of this particular coin is that Roy Hattersley is waiting in the wings, jingling inducements in his repulsive pockets for the moment that this same majority de- cides it would prefer him. But if the British people are so degraded by the collapse of education, by the Shirley Williams re- forms, by the disappearance of grammar schools, formal grammar and classical stu- dies as to be unable to decide a simple libel award, why should they be trusted to choose a government, and why should we pay respect to the objects of their choice?
Of course it can be argued that juries are not typical of the electorate as a whole: since the removal of property qualifica- tions, the tendency has been for any respectable or employed juryman (even if the defence does not raise objections to him on sight) to plead hardship. Even if the judge does not allow this plea, the tenden- cy is for one counsel or another to remove jurymen who show recalcitrance, and the final prospect of many juries is that of a panel of the professionally unemployed, for whom the joys of an acquittal — or of giving away other people's money — may be unusually intense.
But if the jury idea is discountenanced, our democratic politicians are sailing dangerously close to the wind. My own feeling is that whether Pressdram's appeal is allowed or not, there will be no radical revision of the jury system, in libel or anywhere else. While the system prevails, the greatest lesson of Sutcliffe vs Pressdram is surely that defendants must put in an appearance. However horrible they look, and however tangential their evidence, some member of the jury might take pity on them. For as long as they avoid the witness box, the jury will feel insulted.
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