Offer to make amends – feeling defensive?

If the media is feeling beleaguered by recent legal developments protecting privacy, they can take some comfort from a recent Court of Appeal decision in Milne v. Express Newspapers on the extent to which the offer of amends defence is available to the media.

The current offer of amends defence was introduced in the 1996 Defamation Act. It is a defence of last resort since, in invoking it, a defendant is accepting that its story is not correct.

It is intended to encourage sensible compromises in defamation claims and affords a measure of protection to the media when they are prepared to accept up front that a mistake has been made against claimants who might otherwise run their cases for all they are worth out of purely financial motives. In making an offer, the defendant agrees to publish a correction and to pay a sum of damages which will be fixed by the Court if not agreed between the parties. If the offer is not accepted, it can be relied on as a defence so long as the defendant did not know and had no reason to believe that the statement was false and defamatory of the claimant.

The Milne case concerned a libel claim brought against Express Newspapers over an article about an inquiry by the parliamentary commissioner for standards into payments made to Keith Vaz MP by a firm of solicitors, Zaiwalla & Co. Both sides agreed that the article bore the meaning that the claimant, Andrew Milne, was reasonably suspected of giving false evidence to the Filkin inquiry. The newspaper made an unqualified offer to make amends and made proposals to implement the offer. It was, however, rejected and Express Newspapers relied on this as its defence against Milne’s claim. To defeat the defence, Milne had to prove that the newspaper had reason to believe that the statement complained of was false. This was the first time that the Court of Appeal had to decide what level of knowledge has to be proved by a claimant to defeat the defence. It came down in favour of the high test advocated by Express Newspapers, namely that the claimant has to prove that the defendant either knows, or does not care whether, the material is defamatory.

Although no organ of the media will welcome a situation in which it has to rely on the offers of amends defence, Express Newspapers’ success in persuading the Court of Appeal to support the high test should strengthen the media’s position when negotiating settlements with claimants.

Hazel Marshall Addleshaw Goddard Media Litigation Group

Hazel Marshall

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