PROVING THINGS 197: PROVING LOSS OF EARNINGS IN A PANDEMIC: ACTUAL EARNINGS EXCEEDED POTENTIAL EARNINGS

Sicri v Associated Newspapers Ltd (Rev 1) [2020] EWHC 3541 (QB) is an unusual case in many ways.  There are issues that are sensitive and require careful consideration.  However there are also observations about claiming loss of earnings and proving loss that are of general interest. In particular the need to prove a loss and the likely impact of the pandemic upon potential earnings.

(The judgment is also interesting in that it contains a transcript of the cross-examination of the journalist who decided to release the claimant’s name – see Appendix A).

“I consider any claim for loss after September 2019, to be speculative and unproven, particularly in the light of the pandemic, which would surely have had an adverse impact independently of the effect of the Article.”

THE CASE

The claimant was successful in an action for misuse of private information where a newspaper had wrongly named him as being involved with the terrorist involved in the Manchester bombing. The judge awarded general  damages of £50,000.  The judge then considered the claim for loss of earnings.

 

THE CLAIM FOR LOSS OF EARNINGS

The judge considered the claim for loss of earnings.
    1. I have already indicated that the claimant has satisfied me that he suffered financial loss as a result of his identification as a terror suspect, and that the publication of the Article was a cause of such financial loss. The bigger issue is how much of the pleaded claim has been established, taking account of what emerged in cross-examination, and the contents of the documentary evidence.
    2. There are two heads of claim: (1) loss of earnings; and (2) the cost of procuring the removal of re-publications by others, or “take-down”. The first head of claim is for direct consequential loss. The second head can be categorised as the cost of reasonable steps in mitigation of damage. It has two elements: costs incurred and costs of steps which have yet to be taken. The defendant does not dispute the validity, in principle, of either head of claim. The fate of each depends on the facts. My findings are that the claimant has not established any loss of earnings, but he is entitled to £33,000 to cover the reasonable cost of steps taken and to be taken to secure “take-down”. I can explain these findings quite shortly.
    3. As to loss of earnings:
(1) The unchallenged evidence of Mr Mooney and Ms Vernall is that they read the defendant’s publications and ELH terminated the claimant’s employment because of the media coverage. This was not because they assumed he was guilty. On the contrary, Ms Verrall’s evidence is “I assumed Alaedeen was innocent as he was released and had not been told to leave the country … the only reason we had to let him go was the media coverage”.
(2) At that time, his annual earnings from ELH were modest, varying between £656 (2014/15) to £3,610 (2015/16) and £2,336 (2016/17). The claimant maintains that he would have earned much more in future years. I accept that he would probably have improved his earnings, as he was popular with ELH, hard-working and had secured refugee status. Ms Mooney’s evidence was that the replacement employee earned £12,000 a year. I do believe, however, that the claimant’s estimates of his prospective earnings are overstated. They were originally based on erroneous and overstated assumptions about what he had actually been earning. His evidence about how he would achieve the levels of earning he claimed was unconvincing.
(3) My best estimate of the gross earnings he would have obtained, but for his dismissal, are that these would have been in the region of £1,274 for the remainder of 2017, and £4,000 a year from January 2018. It may be that he would have improved on this by 2020, had he remained with ELH. But in September 2019, he left the job he had then secured, to help a family member in Turkey. He accepts that this would have brought an end to whatever job he was then doing. That yields a gross sum by way of lost earnings of about £8,274. I consider any claim for loss after September 2019, to be speculative and unproven, particularly in the light of the pandemic, which would surely have had an adverse impact independently of the effect of the Article.
(4) The claimant has not established that he lost any work as a pilot as a result of the publication complained of. He had never obtained any such work before. His case is that he had been interviewed and had received a verbal offer to start work as a First Officer with Airtime Aviation in Bournemouth in the summer of 2017. The evidence about the status of “Airtime Aviation”, and the nature of the prospective job, is vague. It is not clear that there was ever anything amounting to an offer, as opposed to (at most) discussion of a possible job. The evidence about the withdrawal or termination of the “offer”, does not persuade me that the Article was causative. A run of text messages, disclosed by the claimant, leads me to the conclusion that the job offer, in so far as there ever was one, was probably withdrawn or dropped for reasons that had nothing to do with the Article. In the circumstances, it is unnecessary to say more about the evidence on quantum, but I can see force in Mr White’s criticisms of this. It turned out that the figure on which the calculations was based was not contained in any offer document, but rather an assessment by the claimant of a market rate for the job.
(5) I accept the claimant’s case, that the sum he has actually earned since the publication of the Article is £17,037 gross. This is more than twice what he would have earned from ELH, so there is no award under this head. It is to be noted that this conclusion would follow even if I had accepted the claimant’s case on his likely earnings from ELH, which was that they would have been at the rate of £5,000 a year for 2018 and 2019.