The offer of amends regime

The Defamation Act 1996 offers libel defendants a mechanism to admit
liability at the outset of any complaint and to offer to “make amends”.
This is achieved by a formal written offer to pay damages, to apologise
and to pay legal costs. If damages or costs cannot be agreed, then the
court will award damages and costs in light of any published apology.

There
have been two such cases this month. The first concerned an article
published in The Guardian in September 2004, which linked the claimant,
a British Army colonel, to the torture of prisoners at Abu Ghraib
prison, near Baghdad. The claimant, in fact, had nothing to do with the
prison and was not even in Iraq when the abuses took place. The judge
considered this to be a case for a speedy, unequivocal and prominent
apology. However, he criticised The Guardian for being “remarkably
casual” in publishing its apology (having offered to make amends) three
months after the article was published.

The second case concerned
an article published in the News of the World in February 2004, which
linked the claimant to wife swapping. In this case, while the newspaper
admitted that the claimant was not a wife-swapper, it relied on three
admissions the claimant had made to mitigate any award of damages: that
he had previously visited a Coventry fetish club; that he had acted as
his wife’s agent when she posed for pornographic photographs for
top-shelf magazines and that when he split up from his wife in 2001, he
gave interviews to the press about his relationship with her, making
various allegations against her.

Ordinarily, a defendant who adopts this “hands-up” procedure
will have their damages discounted. However, this “discount” must not
be taken for granted. All the circumstances will be taken into account.
For example, in The Guardian case, the judge reduced the level of
discount because of an “unaccountable delay in acknowledging the
mistake and dismissive references” to other possible defences to the
claim, which were not relied upon. A speedy apology (when things have
gone wrong) was seen by the judge as not only good journalistic
practice, but also a matter of elementary human decency.

However,
in The Guardian case, the judge held that there should be “a
significant reduction in almost every offer-ofamends case”. In the News
of the World case, the judge took account of the three factors relied
upon by the newspaper as a “directly relevant background context”
against which he would make his award. The judge also accepted that
deploying this “background context” about the claimant’s past behaviour
might hurt the claimant’s feelings but this should not automatically
lead to a rise in compensation. It was legitimate to refer to the
background information, provided that it was not a smoke screen to
introduce irrelevant or scandalous material. In this case, he ruled
that the newspaper had acted properly.

The lessons learned from these two cases are:

■ Offers to make amends must be genuine and made quickly to take full advantage of the inherent “discount” in damages.

■ Legitimate “background context” facts relating to the claimant can
be relied upon to mitigate the defendant’s position even further,
provided this is not seen as an excuse to “rough up” the claimant in an
irrelevant or unfair way.

■ In the amends regime, if damages
cannot be agreed, the courts will usually apply a “healthy discount” to
any damages award. For The Guardian the discount was 35 per cent,
reducing the award from £90,000 to £58,000. In the News of the World
case the discount was 40 per cent, reducing the award from £15,000 to
£9,000. In this case, the News of the World had previously offered the
claimant more than he was awarded by the judge. The net result was that
the claimant was penalised in costs (he must pay the newspaper’s costs
from the time the damages offer was made) and is now likely to be out
of pocket.

■ Once a mistake is admitted, publishers should move
quickly to agree damages and publish a suitable apology to avoid
judicial criticism. Claimants will know that the judge is likely to
discount any award of damages by a healthy percentage of perhaps 50 per
cent and a well-judged offer on damages will put real pressure on the
claimant to settle.

Benjamin Beabey is a solicitor in the media team at Farrer & Co, which acted for the News of the World in the above case.

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