Lord Prosser

Lord Milligan

Lord Johnston

0/64/96; 0/67/96; 0/124/97


delivered by LORD JOHNSTON



in the cause


Pursuers and Respondents;





Defenders and Reclaimers:


Act: Haddow, Q.C., Nicol; Turcan Connell, Q.C. (Pursuers and Respondents)

Alt: McEachran, Q.C., Weir; Burness, W.S. (Defenders and Reclaimers)

25 October 2000

[1]There are three actions of defamation at the instance of five members of a single family against the British Broadcasting Corporation and against Sandra McCulloch and Catherine O'Hare, two ex employees of a Nursing Home known as Orchard House, situated at Crossford near Carluke arising out of the broadcasting of a programme under the title of "Frontline Scotland" on national television on 9 March 1995.

[2]The first to fourth pursuers are, as partners, proprietors of a Nursing Home. The fifth pursuer was employed in the family business at the material time.

[3]The programme was concerned with the way the home was run and made a series of allegations, mostly through the medium of the two ex-employees and was severely critical in specific detail as to the way the home was run. After hearing a proof Temporary Judge Coutts, Q.C. rejected the defence of veritas put forward by the defenders, found the various innuendoes that were pleaded by the pursuers established, and awarded them damages.

[4]Damages against the defenders in the first action, the BBC, were awarded by the judge of £60,000 to the first pursuer, £50,000 to the second pursuer and £20,000 to each of the third, fourth and fifth pursuers. In addition he awarded damages against each of the defenders in the other actions to the first and second pursuers of £5,000 and £3,000 respectively. The defenders in all three actions will be hereafter referred to as "the reclaimers", and the arguments presented will be treated as common to all three where applicable.

[5]Originally the defenders and reclaimers reclaimed the Lord Ordinary's entire interlocutor, lodging lengthy grounds of appeal on the merits. However, shortly before the hearing before us the appeals were abandoned on the merits and the matter proceeded before us purely on the issue of damages. However, it has to be noted that no challenge was made in argument to the awards of £5,000 and £3,000, which awards will therefore stand.

[6]The findings of the Temporary Judge in relation to quantum of damage and his reasons for quantification are as follows:

"Findings in Fact in relation to quantum of damage

In view of the fact that Mr Taylor could not support the keynote allegation of the broadcast i.e. that Mr McAdam was kept in a restricted chair for 24 hours a day, nor the lesser version promulgated by Mrs McCulloch that that had occurred on some occasions, it is apparent that the defence, in so far as directed towards that proposition which was persisted in, could not be justified. That was the integral and, in view of the Court, the most serious allegation in the matter. Another matter was the failed attempt to justify the assertion made in the programme that the residents at the home were 'denied even the basics'. The suggestion that the pursuer neglected their residents because of inadequate staffing which was persisted in, was also unjustified, having regard to the fact that staffing levels are set and approved by a supervisory body. The suggestion of a perpetually defective hoist, again persisted in the teeth of the supervisory duties of the Health Board and its requirements about equipment, were all unjustified. I find that there was no justification for the defenders' conduct at the proof in attempting to establish, as a matter of fact independently of the programme, that the pursuers operated a harsh and uncaring regime. They specifically averred that. Such averment and persistence in it at proof plainly must have caused additional and aggravated hurt upset and distress to each and every one of the pursuers and I accept that it is a legitimate consideration for the Court.

Each of the pursuers gave graphic evidence about the effect of the programme upon them and upon those residents, for whose welfare they had assumed responsibility. One result of the programme was that the pursuers, and in particular Mrs Baigent, required to spend time reassuring residents that the residents were not going to lose their home. The upset which the programme was bound to cause to those residents in the home was imminently foreseeable. The effect of (sic) the programme would have upon the relatives of residents was equally foreseeable. That these concerns would multiply the difficulties created for the Baigent family was further foreseeable. It was suggested by Mr Taylor, that the family were exaggerating the situation. With that I totally disagree.

The attack upon the pursuers' personal integrity and reputation and that of the other members of their immediate family, was very serious. The prior reputation of the home, according to Dr Cockburn, was high and that was also evidenced by the relatives who gave evidence for the pursuers, about whose evidence the defenders did not take issue.

The pursuers said, and I accepted the evidence, that the programme changed their lives. They are still affected by it. That was clear when they were giving evidence. They are affected by the reaction on each other. I was particularly impressed by the way in which this evidence was given by the various members of the pursuers family. They all spoke more graphically about the effect on the other members of the family than the effect on themselves. In relation to Mrs Baigent, her daughter said (1418) 'My mum for the last 31/2 years has never stopped talking about it, asking continuously why it happened'. 'We are still 31/2 years on, and she is still talking about it, trying to get it out of her system'. In relation to her father she said (1417) 'it just drained him it was constantly on his mind he couldn't understand how this had happened to us'. Mr Baigent said he felt guilty for the whole family, having brought them to Scotland and this having happened (1678). He is smoking about three times as much as he used to do previously. Their social life virtually ceased and has not recovered. The two sons were also badly affected and again, Sarah Baigent's evidence at 1418 and 1419 was eloquent about the effect on their social life, and the break up of Simon's engagement. People would not socialise with them. They received abusive phonecalls. People would phone up demanding money according to Mr Baigent. With regard to Sarah, the effect on her was described by the other members of the family as devastating. Philip Baigent was subject to abuse by a young woman in the driveway of the home who said (1401F) 'I have seen all about you, you are English scum why don't you come back from where you've been I saw you on the telly'.

Mrs. Baigent felt she could not socialise, felt unable to leave the home lest there be some crisis in her absence, was plagued by what she described as every social worker from Clydesdale getting in on the act (1351F) and ultimately moved house. Persons, some related to the Ratter family, demonstrated outside the house with placards on an open day.

The evidence from the family about the effect upon them and upon each other of the broadcast of the programme was wholly credible. I observed closely the demeanour of the family in the witness box when giving their evidence and was impressed by the extent to which they had all been affected by the programme. They were plainly upset while recounting events relating to, in particular, the other members of their family tending rather to downplay the effect on themselves. I believe their evidence and could see, even at the stage of the Court proceedings the effect upon them.

That effect is, however, only part of the picture. The affront and insult to their reputation, standing in the community, their exposure to hatred and contempt were such that, even if they had been even more resilient than they were, substantial damages would require to be awarded. To attack the bona fides of persons who set out to care for others by implying that they were harsh, uncaring and conducted their enterprise without regard to the welfare of their residents and in particular those less able to complain for themselves is profoundly damaging and insulting.

Quantification of damage

Damages are compensatory not punitive. What might have been the effect had the defenders been sued in other jurisdictions could only be a matter of speculation but, so far as the position in Scotland is concerned, I have regard not only to the matter of compensation for the damage created and by the programme and the two defenders in the other actions but have also had regard to the way in which the defence was pled and persisted in. In that latter matter, I recognise that it is legitimate for defenders to defend themselves by all legitimate means and that, at least so far as the corporate defender is concerned, their position did depend, to a material extent, on the reliability and credibility of the two individual defenders. Nevertheless, by persisting until final submission in the proposition that Mr McAdam was confined in a chair for 24 hours a day and persisting in the proposition and indeed, attempting to prove that the pursuers did operate a harsh and uncaring regime, averring such specifically, the corporate defenders went far beyond what was necessary to undertake in an endeavour to support the reliability of those persons from whom they broadcast statements. I have no doubt that caused additional distress and worry and should be reflected in the sum assessed as damages. I did not find the other cases cited to me of assistance in the jury question of quantifying damages.

I consider that by far the greatest proportion of the hurt caused to the pursuers was caused by the B.B.C. They broadcast the defamatory matter to the nation. They chose to utilise, without I find, any reasonable proper checking, wild and exaggerated statements from disaffected individuals. I can see no reason to distinguish between the two individuals in their participation and liability. Mr Haddow's submission was that Mrs McCulloch and Mrs O'Hare should pay £5,000 to each of the two pursuers and that the B.B.C. should pay £65,000 to Mrs Baigent, £55,000 to Mr Baigent and £35,000 to each of the children, with interest at 4% from 9 March 1995. Mr Taylor's submission for the defenders was that, if damages were to be awarded, then the B.B.C. should pay £15,000 to Mrs Baigent, £10,000 to Mr Baigent and £1,000 to each of the other pursuers and that otherwise there should be nominal damages in the cases of McCulloch and O'Hare.

I note that the representatives of both parties accepted (a) that Mrs Baigent had suffered more damage than Mr Baigent; and (b) that the B.B.C. bore by far the greater liability.

I cannot accept the proposition that the defenders, McCulloch and O'Hare are merely to be found liable in nominal damages. They gave their evidence in the presence of the pursuers in an aggressive, vindictive and contentious manner. Mrs McCulloch went so far as to say that she was proud of what she had done, and Mrs O'Hare was perfectly prepared to make up, as she went along, matters which she thought might be damaging to the pursuers and specifically to Mrs Baigent. I assess damages to Mrs Baigent at £5,000 from each of the defendants, McCulloch and O'Hare and to Mr Baigent in the sum of £3,000 from each of the defenders, McCulloch and O'Hare with interest thereon at 4% from the date of citation.

I have made a distinction between Mrs Baigent and her husband although, in their different ways, they have both suffered much. I accept that the affront to Mrs Baigent is greater than that to her husband, in that she was more intimately concerned with the day-to-day running of the home and the care of the residents as well as being personally vilified from the witness box. So far as the B.B.C. is concerned, I assess damages due to Mrs Baigent at £60,000 and to Mr Baigent at £50,000.

So far as the pursuers, who were the children of Mr and Mrs Baigent are concerned, I accept that each and all of them played a part in the running of the home, each and all of them have suffered as a result of the programme and, as a result of witnessing the effect of the programme on their parents and each other, that is serious although, obviously, not so serious as the effect on the parents. I award damages of £20,000 to each of the third, fourth and fifth pursuers in the action against the B.B.C. Interest on these sums will run at 4% from 9 March 1995 until decree."

[7]At the start of the hearing before us the reclaimers were still insisting on the first three grounds of appeal stated under Article 5 of the lodged grounds, which are in the following terms:

"5.1The damages are grossly excessive set against the level of damages

awarded by judges in Scotland in the last fifteen years (eg Gecas -v- Scottish Television plc 1992 GWD 30-1786; Fraser -v- Mirza 1991 SLT (Notes) 784; Anderson -v- Palombo 1986 SLT 46; McCluskie -v- Summers 1988 SLT (Notes) 55). No medical evidence was produced that any of the pursuers had suffered anything other than upset as a result of the defamatory statements.

5.2The temporary judge's approach to damages is incorrect. He has

failed to make an award of solatium for the injuries sustained by each pursuer. Instead he has made separate awards against the three defenders but no findings as to what is an appropriate overall award.

5.3Furthermore, the temporary judge has made awards to the three

children of Mr and Mrs Baigent who were not mentioned in the programme."

[8]Having stated that, however, senior counsel for the reclaimers withdrew ground of appeal 5.2 at the outset of his submission to us, which leaves only the matters raised by 5.1 and 5.3 for our consideration.

[9]In opening junior counsel for the reclaimers referred us to certain passages in the evidence given by each of the pursuers, largely as we understand it to set the scene, but we do not consider it necessary to refer to the evidence in any detail having regard to the findings-in-fact that the temporary judge has made.

[10]Junior counsel for the reclaimers then proceeded to propose that the test that should be applied by this court, in assessing whether or not a Lord Ordinary's assessment of damages was excessive, was to be found in Purdie v. William Allan & Sons 1949 S.C. 477 where the Lord Justice Clerk (Thomson), having considered the position of an appeal court in relation to the reviewing of a jury's award of damages, goes on to say, at page 480:

"However, an award under this head of pain and suffering and so forth is rather a question of fact and that makes it all the more difficult to interfere with it because it is in exercise of a discretion by the judge who is conducting the case and it may depend to a great extent on impression and imponderable considerations. In viewing such an exercise of discretion a court of appeal is not entitled simply to substitute its own ideas for those of the trial judge. It must give full weight to the privileged position in which the trial judge is and interfere only if it is satisfied that the trial judge has misused or misunderstood his privileged opportunity. Nevertheless, if a judge in the exercise of his discretion awards a sum which appears to be out of all proportion to the true sum which ought, in the view of the appeal court, to have been awarded then I think we are bound to revise his estimate".

[11]Reference was also made to Butler v. Adam Lynn Limited 1965 S.C. 133.

[12]As the reclaimers' position developed and particularly in the hands of senior counsel the argument was predicated essentially on two basic propositions. Firstly, that the awards made by the temporary judge were well outwith the pattern of awards made recently in Scotland for defamation actions. The law, it was submitted, required consistency and therefore it was appropriate to examine the existing decisions and also to make certain comparisons with levels of award in relation to personal injury. Secondly the only issue was compensation, in respect of solatium for the injury caused.

[13]To lay the basis for this first submission junior counsel accordingly referred us to a number of cases where awards for defamation had been made in Scotland, with one exception, by judges. They were as follows: Smith v. Graham 1981 S.L.T. (Notes) 19; Muirhead v. George Outram & Co. Ltd. 1982 S.L.T. 201; Anderson v. Palombo 1986 S.L.T. 46; McCluskie v. Summers 1988 S.L.T. 55; Fraser v. Mercer 1992 S.C. 150; an unreported case of Lord Milligan namely Anthony Gecas v. Scottish Television plc dated 17 July 1992 and Gilbert v. Yorston 1997. The one award made by a jury in this context was the case of Winter v. News Scotland Limited 1991 S.L.T. 828 where the Inner House declined to interfere with the jury's assessment in that case of the sum of £60,000. Reference was finally made in this context to the case of Wray v. Associated Newspapers and Another [2000] S.C.L.R. 819 which case post-dated the hearing in the present case and in which in the opinion of the court the award was £60,000.

[14]Counsel accepted that the awards in these various cases varied enormously and that, with the exception of Gecas supra where Lord Milligan awarded £30,000, albeit on a hypothetical basis because the action failed and also after discounting a number of factors, the figures involved were far below the awards made in the present case in respect of both the parents and the children. In essence, therefore, the defenders' submission was that they broke the pattern of established awards and were thus to be regarded as excessive or out of all proportion if the original test in Purdie was applied. They had to recognise that in Winter the Inner House declined to interfere with the jury's assessment of £60,000, but the submission here was that when an award of a jury was being considered, a much broader brush had to be applied by the appeal court, and accordingly Winter was no adequate guide when it came to the review of an award made by a judge who had given reasons for it. In the context of reviewing jury's awards both parties referred to the decision of the House of Lords in Girvan v. Inverness Farmers Dairy 1998 S.C.(H.L.) 1 where Lord Hope of Craighead referred to the historical so-called working rule to the effect that if an award of a jury was to be interfered with by a higher court, it must be at least double what the assessment of the claim by that court would have been. In particular, at page 16, his Lordship says, in the context of jury trials, the following:

"It follows that if a series of new trials is to be avoided a fairly broad approach must still be taken to the question whether the jury have committed a gross injustice or reached a palpably wrong result. But we can now accept, in view of the insufficiency in modern practice of jury awards as a basis for comparison, and without departing from the underlying principles, that it is open to the court, if it finds this helpful, to consider the matter in two stages...It can take as its starting point its own assessment of the sum which it would be appropriate to award upon a proper judicial assessment of the value of the claim. Clearly the court has to start somewhere even although a broad approach has to be taken in reaching the result and this clearly is the legitimate starting point as the court cannot approach the question of whether there was an excess inadequacy of damages without having some regard to the awards made in similar cases. So awards made by both judges and juries should be taken into account at this stage. The result of this exercise is that it is likely to be the assessment of a relatively narrow range of figures within which a judge, if presented with the same evidence, could properly place his award. The majority of the information used for the purpose of this exercise is likely to come from awards made by judges. Where there are jury awards in similar cases they should be taken into account also. But no greater weight should be attached to them than would be given to them by a judge on making his own assessment. A jury award which has been successfully challenged in a motion for a new trial or is under challenge in a case which is still to be heard would not be taken into account by a judge when making his assessment so it should be regarded at this stage".

The reclaimers' position was that damages in defamation actions in Scotland were historically fixed at a moderate level and the present awards were way beyond the top of that particular pattern emerging from the cases. Consistency was essential.

[15]Furthermore, it was submitted as the second submission that what was required was compensation and in this context it was relevant to compare the level of awards in this case with such as might be attracted in cases of physical injury. This exercise was undertaken under reference to the Judicial Studies Board Guidelines as senior counsel made a number of fairly dramatic comparisons suggesting that the present figures, at least to the first pursuer, would be the equivalent of what would probably be awarded for the loss of both hands and exceeds serious facial scarring. Thus, if these figures were to apply, it was submitted, for injuries of long-term standing and permanent effect, lower figures should be awarded in respect of a defamation where the impact, however severe at the outset at the time of the slander, would gradually diminish. In the final result, the submission therefore was that the awards made in relation to both the parents and the children against the present reclaimers were out of all reasonable proportion to what should have been awarded and should therefore be quashed. The substitute figures put forward by the reclaimers were, respectively, £30,000 for the first pursuer, £20,000 for the second pursuer and £5,000 for each of the children.

[16]The reclaimers' position in relation to each of the children was simply that, initially, not having been named in the programme, they did not appear to qualify for damages at all, but having regard to the fact that defamation had been established that proposition was necessarily departed from. At the end of the day it was simply stated that the impact on them must have been less and accordingly the lower figure should have been awarded.

[17]The position of the pursuers and respondents in submission, particularly focused by senior counsel, was that consistency could be found with some previous awards, particularly Gecas and Wray, but essentially the test, as focused by counsel, was posed in the form of a question "On the face of it what is so wrong with the Lord Ordinary's approach?" "Do, these awards amount to an affront of justice or are they contrary to common sense?" Unless that approach was clearly wrong and an affirmative answer to the latter question was required, the Temporary Judge with detailed reasons, should be upheld.

[18]In seeking to resolve this matter it is firstly necessary to emphasise just how grave the allegations in the original programme were in relation, both to the impact on the pursuers' feelings but also on their reputation given that they were professional carers running a nursing home for the care of the elderly.

[19]The extent of the damage can best be illustrated by reference to the innuendoes in the pleading which can be summarised as follows:

"1.That the pursuers were operating a callous and uncaring regime.

2.That the pursuers obliged nursing staff to carry out their duties in an

unhygienic and degrading manner.

3.That the pursuers had insufficient staff to care for patients, and resorted

to confining a patient to a chair for substantial periods.

4.That the pursuers operated with insufficient staff to supervise patients, and thereby put their health at risk."

Not one of these allegations was established, and indeed they were expressly rejected by the judge in his findings. We consider the assessment of the damages to be awarded to each pursuer must reflect the scurrilous if not outrageous nature of these untrue allegations.

[20]Secondly, in his findings the Temporary Judge has made it perfectly clear that he is making his assessment in consequence of and so as to reflect the findings-in-fact he made as to the effect on each of these pursuers of the slander which has been established, as it is now accepted to have been with the withdrawal of the appeal on the merits.

[21]Thirdly, since we are being asked here to review the decision of a judge who has given reasons for his decision the principles to be applied in this court with regard to the reviewing of awards of damages by juries do not immediately have any direct application. For example we note in Winter that that court considered that what they would have awarded would have been substantially less than that particular jury, but that did not prevent the court from upholding the jury's award. However, we consider that in any case where damages are being reviewed by this court or a higher court, as Lord Hope points out in Girvan, it must be necessary for the judges of the appeal court to have some idea in their own minds as to what assessment of damages they would have made upon the findings-in-fact of the Lord Ordinary, if nothing else, to form a backdrop or test against which the final issue of extravagance or excess can be measured. A jury may go much higher in that assessment and can be reviewed in that context.

[22]Fourthly, we will observe that we do not find in cases of defamation comparison with awards made in cases of personal injuries particularly helpful or useful. The comparative examples given by senior counsel for the reclaimers are dramatic but also, in our view, unhelpful. Every case of defamation is unique in respect of both the content of the slander and its effect upon the victims and it therefore follows in our view that even comparison with other decided cases in that area is of very limited value.

[23]If we were to embark upon the exercise of any assessment by us we are not convinced that the present awards do exceed the pattern to the extent claimed by the reclaimers. Even if we ignore the award in Wray on the basis that it is under appeal, a proper examination of Gecas reveals that Lord Milligan plainly drastically reduced the figure he would otherwise have awarded but for the facts in mitigation which he specifies in his opinion. It has to be emphasised that the exercise in that case was being embarked upon on a hypothetical basis since the plea of veritas in that case was made out. It is not, therefore, in our view, appropriate to regard that case as only awarding £30,000. Without the mitigatory factors specified the award would have been substantially higher. The nearest case beyond that is McCluskie, which is now somewhat stale, but the mitigating factor in that case was that the slander, although serious, had a very limited circulation.

[24]Furthermore, in looking at the field of damages generally in the context of personal injuries and defamation, it may well be that the levels now being fixed by judges in respect of personal injury are lower than they should be in the modern context, the courts having consistently followed previous decisions and thus establishing a pattern within a certain range. By definition we do not consider such a mould applies in a defamation case, given the unique nature of the assessment to be undertaken in that type of case. It is relevant to observe the level of the award in Winter, which would suggest that the jury approaching the problem took a much broader and more serious approach to the matter than do judges. It is not, therefore, in our opinion in any way wrong to consider what a jury might have done in the present case and in that respect Winter is illustrative and illuminating. As we understood it, counsel for the reclaimers accepted that if the awards made in this case had been made by a jury they could not attack them successfully in this court, a concession in our opinion rightly made and not without significance.

[25]It also has to be observed that the figures proposed by the reclaimers do not depend upon any detailed assessment of the evidence, but merely upon a somewhat circular argument that once those levels are suggested the figures actually awarded by the temporary judge are at least almost double in relation to the parents. The argument is to the effect that the latter figures must therefore be excessive as being out of all proportion to the figures being proposed on behalf of the reclaimers. However, it is self evident that that argument must fail if the figures proposed by the reclaimers cannot be substantiated and we do not consider that they can when we make our own assessment of the proper level of damages in this case to set a benchmark.

[26]Turning now to that question we consider that the awards made by the Temporary Judge which appear to reflect substantially what was being requested by counsel at the proof are conservative. We consider that an assessment of damages in a defamation action is a free-standing exercise which requires the court to address the impact of the slander both to the feelings of the victims but also the damage to their reputation. In this case it is clear both were enormous. The effect, particularly, on the first pursuer appears to have effectively ruined her lifestyle for a considerable period of time. More importantly, perhaps, than that, is the fact that their reputation as carers was grossly damaged by the allegations that were made and it is probably true to say that despite vindication now being accepted their reputation may never completely recover from the impact of the slander. If the approach in Wray is correct, reference to authority is of little point in making this assessment, and the matter becomes almost an instinctive reaction by the court. Our reaction in this case is to suggest that the figures awarded by the Temporary Judge to both Mr and Mrs Baigent are certainly sustainable and supportable by this court. The only doubt we have in our minds is to whether they are high enough. If a jury had been assessing the matter the awards might well have been much higher. It follows from this approach that if a comparison has to be made with personal injuries and if similar figures in personal injury claims might suggest a possible distortion by comparison in the minds of the public, then the solution may well be that the figures for personal injuries should be higher.

[27]In these circumstances and for these reasons we consider that the attack upon the assessments by the temporary judge of damages in relation to the first and second pursuer fails and his awards require to be sustained.

[28]Turning to the question of the children we confess to having some difficulty in defining what the ultimate position of the reclaimers was. It could perhaps have been understandable to maintain that they are not entitled to damages at all if they were not "referred to" in the programme, but defamation is established in terms of the full innuendoes and the point is plainly conceded by the fact that figures are being proffered in each case reflecting at least an indirect reference if not individually and by name. Furthermore, it is apparent from the findings-in-fact, since the two elder children were partners and the third child worked in the home, that they were all involved as a family in the caring operation and were all therefore slandered as a result, by the allegations that were made. Here again we cannot find the justification for limiting the awards in the reclaimers' figures to merely £5,000. As the Temporary Judge recognises the effect on the children would be bound to be less than the parents as the main players, but it is perfectly apparent to us, applying our own tests, that an award had to be substantial in respect of each of the children to reflect the obvious impact on them and their reputations, to say nothing of the apparent disruption of their social lives.

[29]In these circumstances we see no reason to interfere with awards made in this context by the temporary judge. Indeed, having expressed the view that we consider the awards he made to the parents as being relatively conservative, the same can be said of these figures.

[30]We therefore consider that the reclaimers advanced no stateable reason why these figures should be interfered with and we would accordingly sustain them as well.

[31]In these circumstances the reclaiming motion is refused in all three actions. In the result the award of interest by the Temporary Judge will stand in each case, but in addition we will award interest on all sums due under these decrees from its date until payment at the rate of eight per cent.