When libel means having to say sorry (nicely)

Last year John Cleese sued the Evening Standard for libel. The paper admitted it had got the article wrong and deployed the relatively new “offer of amends” procedure.

This procedure (which came into force in February 2000 under sections two to four of the Defamation Act 1996) caters for the situation where a complaint of defamation is made against a paper which accepts that the allegations were false and wishes to make amends. If such an offer is rejected, then the paper will have a complete defence to any libel claim, unless the complainant can prove that the defamatory words were published in bad faith.

If the offer is accepted, as it was in this case, it is then up to the parties to agree on the appropriate remedies, including financial compensation, an apology, correction, payment of legal costs, and so forth. If agreement cannot be reached, then the matter may come before the court (even where legal proceedings have not been commenced) and a judge will decide on the level of compensation. That is what happened in this case. In his judgment given in February 2003, Mr Justice Eady provided helpful guidance on the approach which the Court expects parties to adopt where an offer of amends is accepted (Cleese v Clark & Associated Newspapers Limited [2003] EWHC 137 (QB)).

It is clear that in those circumstances there is a duty on both the paper and the complainant to do their best to agree terms (including the form of the apology and the amount of financial compensation), preferably by way of “a round-the-table meeting”. The judge was of the view that correspondence between the lawyers was unlikely to achieve such agreement, because “there can be no form of human communication more stilted than letters between litigation solicitors”.

In this case, matters had not been assisted by the Evening Standard’s publication of a unilateral – and none too generous – apology, which had nothing like the prominence of the offending article. The complainant, too, was criticised for failing to specify how much he sought by way of financial compensation.

There is an obligation on both parties, and their lawyers, to identify any issues “promptly and with frankness”. Unmeritorious points should not be taken. In this case, for example, Mr Cleese’s lawyers made much of the fact that the paper had refused to apologise “unreservedly”. The judge gave this short shrift, describing it as “a lawyer’s word, the omission of which a casual reader would hardly notice”.

The lesson of this case is that where an offer of amends is accepted, then both sides should enter into meaningful negotiations in good faith. Any apology should be prompt, genuine and generous. Equally, any demand for financial compensation on the part of the claimant should be clear and realistic.

David Engel is a partner in the media & internet litigation group at Theodore Goddard

by David Engel

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