Cleese v Clark & Anor

Under the statutory offer of amends procedure, compensation is assessed without commencing a libel action and on the same principles as damages in defamation proceedings. The court may consider the gravity and impact of the publication, aggravation, mitigation, causation and the claimant’s conduct, but the exercise remains compensatory rather than punitive. A correction or apology may reduce compensation according to its timing, content and prominence. The procedure is intended to promote frank, prompt and meaningful negotiation after acceptance of an offer. It is not confined to minor cases and does not involve a rough or summary assessment.

The claimant complained of a newspaper article which attacked his personal and professional reputation. The defendants made and the claimant accepted an unqualified offer of amends under the Defamation Act 1996. The parties could not agree the appropriate compensation or the adequacy and prominence of the apology, so the matter was determined by the court under section 3(5). The central issues were the proper approach to compensation, the effect of the published correction and the parties’ conduct during the post-acceptance negotiations.

1. Statutory framework. Under section 3(5) of the Defamation Act 1996, compensation is determined on the same principles as damages in defamation proceedings. The court must take account of steps taken to fulfil the offer, the suitability of the correction, the sufficiency of the apology and the reasonableness of its publication. The procedure may operate without ordinary libel proceedings being commenced.
2. Nature of the assessment. The hearing may involve evidence and submissions comparable to a damages-only defamation trial. There is no statutory cap comparable to that applicable to summary judgment, and the procedure is not confined to less serious allegations. Issues of mitigation, aggravation and causation may be considered, but the claimant cannot use the hearing to introduce a defence such as justification or fair comment.
3. Negotiation and mitigation. Once an offer has been accepted, both parties and their lawyers should identify the remaining issues promptly and negotiate meaningfully. A defendant will generally be assisted by publishing a prompt and generous apology. Delay attributable to the complainant may reduce compensation, while delay attributable to the defendant may increase it. The figures discussed in without-prejudice negotiations should ordinarily not be disclosed to the judge, subject to the procedural rules concerning sums actually paid or proposed steps.
4. Assessment in this case. The article was a spiteful personal attack, causing genuine distress, although the allegations were at the lower end of defamation gravity and were unlikely materially to damage the claimant’s established reputation. The apology mitigated the reputational impact but was less informative and prominent than it might have been. The appropriate compensation was therefore assessed at £13,500.