[*294] 1986 January 23
(HADJITSANGARIS, P.D.C., HADJIHAMBIS, D.J.)
IN THE DISTRICT COURT OF LIMASSOL
v.
Georghios Hadjinicolaou & Another,
(Action No. 2598/81).
Libel - Damages - Quantum - Matters to be taken into consideration.
Libel - Joinder in one action of separate libels - Damages-Separate damages in respect of each libel should be awarded.
Libel - Joinder of two defendants - Damages - Quantum - In making the award, aggravating circumstances affecting the one defendant, should not be taken into consideration Only one award can be made.
Libel - Injunction - When such remedy may be granted.
A. Adamides, for the Plaintiff.
M. Malachtou (Miss) for C. Indianos, for Defendant 2.
The following judgment was delivered by:
HADJIHAMBIS, D.J.: The plaintiff’s claim in this action is in respect of five publications, appearing in equivalent issues of the daily afternoon newspaper “MESIMVRINI” of 15th July, 1981, 16th July, 1981, 17th July, 1981, 21st July, 1981, and 25th July, 1981, and all of them re-appearing in its issue of 29th July, 1981. Defendant 1 is the editor [*295] and person responsible for the said newspaper. Defendants 2 are the owners of a newspaper agency through which the said newspaper circulated on the above dates. Defendants 2 admit that the publications in issue are libellous.
Defendant 1 failed to file an appearance though properly served and the action proceeded to proof as against him. From the evidence adduced we are satisfied that the plaintiff has proved his case as against defendant 1 in respect of each libel as alleged in the statement of claim. The only issue that remains is the question of the amount of damages and the injunction prayed for by the plaintiff in respect of the said libels.
In assessing damages certain matters are clear. In the first place, seeing that each publication constitutes a separate libel, it is incumbent upon the Court to award separate damages in respect of each such libel (see: Weber v. Birkett (1925) 2 K.B. 152 (C.A.), which have effectively been joined by the plaintiff as separate causes of action in this one action. This applies also to the republication of the five libels in the issue of 29th July, 1981 for any republication of a libel constitutes a new libel (see: Truth (N.Z.) Ltd. v. Holloway (1960) 1 W.L.R. 997 (P.C.)). Further, in so far as the action is for joint libels against two persons as co-defendants, the Court is bound to make one single award in respect of each libel against both of them and cannot make separate awards in respect [*296] of each of them (see: Greenlands v. Wilmshurst (1913) 3 K.B. (C . A.), Eggerv. Viscount Chelmsford (1964) 3 ALL E.R. 406, Cassell & Co. Ltd. v. Broome (1972) 1 ALL E.R. 801, Saveriades v. Georgiades (1982) 1 C.L.R. 574). Consequently, the damages to be awarded in respect of each libel must be assessed on the basis of the maximum of injury caused by the two defendants joint act and must not refer to any circumstances pertaining only to one of them by way of aggravation.
Coming to the question of damages, the principle involved is clear, that there are no hard and fast rules, damages being “at large” (see Cassell & Co. Ltd. v. Broome (supra)). And, that the Court, in assessing damages, must take into consideration all the circumstances of the case, including, inter alia, the nature of the libel, the mode and extent of the publication, the defendant’s conduct throughout, the question of malice, motive, retraction, or apology, the plaintiff’s position and standing in society, the plaintiff’s own conduct and the injury to the plaintiff’s feelings, dignity and pride. On the basis that damages are designed to compensate the plaintiff for the injury which he has suffered and not to punish the defendant for his wrongdoing, the assessment, though it may include circumstances in aggravation, must stop short of purely punitive considerations. In this respect we refer to the decision of the Court of Appeal in McCarey v. Associated Newspapers Ltd. (1964) 3 ALL E.R. 947 where Pearson, L.J. (as he then was) reviewed the authorities in the light of Rookes v. Barnard (1964) 1 ALL E.R. 367, and put the matter thus at p. 957: [*297]
“If I may summarise shortly in my own words what I think is to be derived from that case, it is this, that from henceforth a clear distinction should be drawn between compensatory damages and punitive damages. Compensatory damages in a case in which they are at large may include several different kinds of compensation to the injured plaintiff. They may include not only actual pecuniary loss and anticipated pecuniary loss or any social disadvantages which result, or may be thought likely to result, from the wrong which has been done. They may also include natural injury to his feelings; the natural grief and distress which he may feel in being spoken of in defamatory terms; 1 and, if there has been any kind of high-handed, oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and suffering which is caused by the defamation and which may constitute injury to the plaintiff’s 1 pride and self-confidence, those are proper elements to be taken into account in a case where the damages are at large. There is, however, a sharp distinction between damages of that kind and truly punitive or exemplary damages. To put it in another way, when you have computed and taken into account all the elements of compensatory damages which may be awarded to the plaintiff and arrived at a total of £X, then it is quite wrong to add a sum of £Y by way of punishment of the defendant for [*298] his wrong-doing. The object of the award of damages in tort nowadays is not to punish the wrong-doer, but to compensate the person to whom the wrong has been done. Moreover, it would not be right to allow punitive or exemplary damages to creep back into the assessment in some other guise. For instance, it might be said: ‘You must consider not only what the plaintiff ought to receive, but what the defendant ought to pay’. There are many other phrases which could be used, such as those used in the extracts which I have cited from some of the decided cases. In my view, that distinction between compensatory and punitive damages has now been laid down quite clearly by the House of Lords in Rookes v. Barnard, and ought to be permitted to have its full effect in the sphere of libel actions as well as in other branches of tort.”
This passage was cited with approval by our Supreme Court in General Press Agency v. Christofides (1981) 1 C.L.R. 190, at pp. 198-199 and Saveriades v. Georghiades (supra) at pp. 59 1 -592.
We also refer to the decision of the House of Lords in Cassell & Co. Ltd. v. Broome (supra) where the matter was extensively reviewed and considered. Lord Hailsham observed at pp. 823-824: [*299]
“In almost all actions for breach of contract, and in many actions for tort, the principle of restitution intergrum is an adequate and fairly easy guide to the estimation of damage, because the damage suffered can be estimated by relation to some material loss ………. In many torts, however, the subjective element is more difficult …………… In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitution integrum has necessarily an even more highly subjective element ………. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.”
And, Lord Reid at p. 836 said:
“Damages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so far as money can do it, for all the injury which he has suffered. Where the injury is material and has been ascertained it is generally possible to assess damages with some precision. But that is not so where he has been caused mental distress or when his reputation has been attacked - where to use the traditional phrase he has been held up to hatred, ridicule or contempt. Not only is it impossible to ascertain how far other people’s minds have been affected, it is almost impossible [*300] to equate the damage to a sum of money. Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions. So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled to compensation.”
Turning to the facts of the case, we take the view that all the publications in question constitute serious instances of libel. Both the content and the style of the publications render the libels particularly nasty and offensive in nature, all the more so since they refer to a well-known man, distinguished, on evidence, as much in business as socially and politically, conveying the worst of him in every respect, tending to lower, insult and debase him, and deeply offending his feelings of honour, righteousness and self-respect. We also note that the circulation of the newspaper in question was on the low side of 1,500 copies per day. Furthermore, the libels in question were published successively over a period of ten days and were all republished together in one issue shortly thereafter. In this respect we also note that, although defendants 2 were warned by Exh.10, they nevertheless proceeded to distribute the issue of 29th July, 1981. We do, of course, appreciate [*301] that, in the light of the authorities indicating that only one award may be made in respect of each libel, any aggravating circumstances on the part of defendant 1 must be disregarded. Hence, our awards will ignore any malice or ill-will, which might be evident from the publications, on the part of defendant 1 and which, we are satisfied, was not shared by defendants 2 as mere distributors, as well as the entire absence of any concern, apology or retraction on the part of defendant 1, though we are bound to say that there is no evidence of any published apology or renunciation by defendants 2 whose apology and renunciation by counsel was not as prompt and eager as might have been desired.
In the light of the authorities and taking into consideration all the circumstances of the case, we have decided to make an award of £1,000 in respect of each of the libels contained in the issues of the 15th, 16th, 17th, 21st and 29th July, 1981 and an award of £1,500 in respect of each of the libels contained in the issue of 29th July, 1981, all awards to be made against the defendants jointly and severally.
As to the injunction prayed for, though undoubtedly the Court has jurisdiction in a proper case to grant such an injunction, we do not believe that this is a case in which an injunction should issue. An injunction is granted not only when the words in question are injurious to the plaintiff but also if there is reason to apprehend further publication by the defendant. [*302]
In the instant case the relevant defamatory publications were made in 1981 and the evidence as to subsequent publications, which comes from the plaintiff, is vague in nature and is not supported by any documents nor is there any evidence of any publication after 1984. Moreover, defendants 2 have expressed their apology and have renounced the libel, and their whole position does not allow for an expectation that they will permit the publication of any similar libels. For these reasons we are not prepared to make an order for an injunction.
In the result there will be judgment against the defendants jointly and severally in the sum of £12,500 with costs on the amount awarded to be assessed by the Registrar.