'Offer of amends' defence under 1996 Defamation Act

When Mr Justice Eady handed down his judgment in Milne v Express Newspapers, journalists could be forgiven for letting out a sigh of relief, writes Emma Alanko. In a fast-moving world, journalists can at least rest in the knowledge that honest mistakes need not give rise to protracted legal proceedings.

Milne v Express Newspapers arose from an article in the Sunday Express which suggested that a solicitor, Mr Milne, may have lied to a parliamentary committee.

No doubt in an effort to avoid prolonged and expensive litigation, Express Newspapers responded to Milne’s written complaint by making an unqualified offer of amends under Section 2 of the Defamation Act 1996. By making an unqualified offer of amends, Express Newspapers were allowing the amount of damages and the form of any apology to be settled by the court if they could not be agreed with Milne.

There were good tactical reasons for doing this: the making of the offer of amends ordinarily acts as a defence to defamation proceedings should the claimant reject it, but there are limitations. Under Section 4 of the act a person who makes an offer of amends will not be able to rely on it if he or she "knew or had reason to believe" that the statement complained was false and defamatory. What a person knows or has reason to believe at any given time depends on the facts available at the time and, unsurprisingly, in the time-pressured world of journalism, facts cannot always be triple checked before a copy deadline.

In this case, Milne rejected the offer of amends, so the court had to decide whether it did indeed stand as a complete defence to his claim. In a series of pragmatic pronouncements, the judge in Milne v Express Newspapers recognised the practical difficulties journalists face.

The statutory regime, he stated, has as its purpose the provision of an exit route for journalists who have made a mistake and are willing to put their hands up and make amends. He made clear that the exit route would be unavailable only for those who had acted in bad faith. So there will be no "offer of amends" defence for journalists who know that what they are alleging is untrue. Nor will the defence be available to those who choose to ignore or shut their mind to information which should have led them to believe an allegation to be false. So the defence won’t help the dishonest, but to the conscientious journalist and even the careless but honest journalist, it may prove valuable.

Emma Alanko is a trainee solicitor in the media group of Lovells

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