PROVING THINGS 197: PROVING LOSS OF EARNINGS IN A PANDEMIC: ACTUAL EARNINGS EXCEEDED POTENTIAL EARNINGS
Sicri v Associated Newspapers Ltd (Rev 1)  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 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.
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.
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.