Nail & Ors v News Group Newspapers Ltd. & Ors

Compensation following an accepted offer to make amends is assessed under section 3(5) of the Defamation Act 1996 on the ordinary principles governing defamation damages. It must provide proper compensation for injury to reputation and feelings, and appropriate vindication.

Damages are assessed at the date of assessment. An early, unqualified offer followed by an agreed apology will usually produce substantial mitigation because it repairs reputation, provides vindication and relieves the claimant of the anxiety and costs risk of contested proceedings. The reduction must reflect the actual circumstances. There is no conventional or standard percentage discount.

A defendant does not aggravate the injury merely by exercising the statutory right to contest the amount of compensation at a judicial hearing.

The claimant brought two defamation actions concerning false allegations about his personal and professional conduct. One concerned a widely circulated newspaper article. The other concerned 119 copies of a biography published within the applicable limitation period. The defendants made unqualified offers to make amends, which the claimant accepted, and agreed apologies were published.

Eady J assessed compensation under section 3(5) of the Defamation Act 1996 at £22,500 for the newspaper article and £7,500 for the book: (2004) EWHC 647 (QB). The newspaper award reflected a 50% reduction from a £45,000 starting figure.

The claimant appealed, principally contending that the judge had unlawfully discounted compensation to reward use of the statutory procedure. The central issue was how an accepted offer to make amends should affect compensation.

1. Appeal dismissed. Compensation under section 3(5) of the Defamation Act 1996 must be determined on the same principles as damages in defamation proceedings. The claimant is entitled to proper compensation for injury to reputation, distress, hurt and humiliation, and to appropriate vindication. May LJ delivered the judgment with which Gage and Auld LJJ agreed.

2. Defamation damages are assessed at the time of assessment. A defendant's post-publication conduct may therefore aggravate or mitigate the injury and the award. An early, unqualified offer to make amends, its acceptance and an agreed apology are ordinarily bound to provide substantial mitigation. The defendant has capitulated without pleading a defence, accepted responsibility for correction and apology, and submitted compensation and costs to agreement or judicial determination. The claimant receives the fullest practicable repair of reputation, public vindication, and relief from the anxiety and costs risk of contested litigation.

3. The phrase “healthy discount” conveyed the same idea as substantial mitigation. Eady J had not introduced an independent policy reward or counted the mitigating features twice. The 50% reduction was a case-specific assessment, not an illegitimate discount.

4. There is no conventional or standard percentage reduction following an accepted offer and apology. Each case requires individual consideration. Mitigation may be slight where important features are absent, or where a correction or apology is unsuitable or insufficient. Aggravating conduct may also affect the award.

5. A claimant's evidence that his feelings remain bruised is relevant, but it cannot neutralise the objective benefits necessarily obtained from the procedure. Nor does a defendant aggravate the injury merely by exercising the statutory right to have compensation determined at a contested hearing.

6. The judge made no error of principle and considered all relevant factors. The awards of £22,500 for the newspaper article and £7,500 for the limited actionable publication of the book were within the permissible range and were upheld.

1. Court of Appeal (Civil Division): The court dismissed the appeal and upheld both compensation awards: [2004] EWCA Civ 1708.
2. Queen’s Bench Division: Eady J assessed compensation under section 3(5) of the Defamation Act 1996 at £22,500 for the newspaper publication and £7,500 for the book publication: (2004) EWHC 647 (QB).