Libel versus Limbs

Posted by Elizabeth O'Mahony on

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BL Claims Solicitors specialise in personal injury, clinical negligence and travel claims, providing our clients with hands-on support, nationally.

We are rated as one of the top firms in the UK and believe in speaking to our clients in jargon-free language and ensuring you're speaking to a highly qualified lawyer right from the outset

The writer and blogger, Jack Monroe was awarded £24,000 in a row over tweets, which suggested that she defaced a war memorial during an anti-austerity  demonstration near Whitehall.

She described in an article how she had amassed six ring binders full of "hateful, poisonous messages" and suffered for at least two years. The source of the story was a number of tweets by Katie Hopkins, the well-known journalist. Mr Justice Warby found that Hopkins' tweets were defamatory and that they had caused damage to Monroe's reputation "albeit not serious or grave." The costs of the legal action far exceeded the damages, with interim costs reported at £107,000 ordered to be paid within 28 days.

Personal injury and clinical negligence solicitors can only dream of such largesse in relation to their costs.  The classic example of the cruelty of proportionality is that of parents of children, who die in hospital due to medical mistakes. Their claims are often restricted to the statutory bereavement award (just below £14,000) and funeral expenses but the costs of taking such a case through an inquest and beyond will almost always exceed the damages available.

If one asked a bereaved parent whether they would exchange their pain, for the six ring binders and minor damage to reputation, we think that there would a ready response. Alternatively take a person whose injury is going to cause them manageable pain for the rest of their life. Surely they would also join the queue for the ring binders. The much heralded "duty of candour" introduced by recent legislation to get NHS trusts to be more open about their mistakes and avoid protracted litigation, has proved a false start.

The test for proportionality in injury based claims is designed to be draconian. The reasonableness of what a lawyer has or has not done in the pursuit of justice, takes second place to the relationship between damages and costs. Therefore even if a lawyer has acted reasonably in bringing the claim, his costs can be reduced because the damages are too small. Clinical negligence claims are notorious for generating forests of documentation and complex legal questions.

If we return to the example of Jack Monroe, it might be said that the paying party is in fact a private individual, namely Katie Hopkins rather a public body such as the NHS. However, justice is supposed to consistent and it is difficult to see how the ordinary member of the public can compare these kinds of reputation awards with those made for life changing injuries.

The message is even less consistent when one looks at the costs awarded in these libel cases. In an injury based case, it would be very difficult to recover £107,000 in total costs (let alone as an interim payment) for a £24,000 compensation award. Injury lawyers now find themselves being asked this question all the time, by those who have to finance the claim, namely their employers.

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About the Authors

Elizabeth is a Senior Solicitor in the Clinical Negligence team based in London. She joined the team in December 2014.

Elizabeth O'Mahony
Email Elizabeth
020 7814 5455

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Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
Email Malcolm
020 7814 5441

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