Nail v Jones & Ors

Compensation under the offer of amends regime must be tailored to the circumstances and cannot be fixed by applying a standard percentage discount. The court should assess a realistic trial-based starting figure, considering the gravity and reach of the libel, the claimant’s personal reaction and the parties’ conduct, then make a substantial reduction for the offer, apology and conciliatory resolution. Similar allegations previously published cannot ordinarily mitigate damages. Defendants must disclose in good time any disparaging material relied on at an assessment hearing. Late evidence which causes unfairness, particularly evidence tending to justify the libel or attack the claimant, may aggravate compensation.

Two libel claims were assessed together. One concerned defamatory allegations in a biography published in 1998; the other concerned a newspaper article published in 2002 which substantially repeated allegations from the book. In both actions the defendants made and the claimant accepted unqualified offers of amends. Liability, apologies and correction were therefore resolved, leaving the court to assess compensation under section 3(5) of the Defamation Act 1996.

The issues included the effect of acceptance of an offer of amends, the relevance of earlier publicity and the claimant’s delay, the treatment of late evidence, and the appropriate relationship between libel damages and personal injury awards.

1. Approach under the offer of amends regime. Compensation under section 3(5) of the Defamation Act 1996 must be assessed in context. Acceptance of an offer means that the claimant has effectively won, will receive compensation and an apology, and will generally suffer less litigation stress. Those matters have a substantial deflationary effect on compensation.
2. There is no reliable standard percentage discount. The court should first consider what it would have awarded after a trial without significant aggravation or mitigation, having regard to the gravity of the libel, its scale of publication and the claimant’s personal reaction. It should then make a significant reduction for the apology, payment of costs and the defendant’s willingness to use the conciliatory procedure. Personal injury awards provide a useful proportionality comparison, but cannot dictate the result.
3. The court must compensate only for the meanings and publications within the claim. Uncomplained passages in the book and their consequences were excluded. Earlier publication of similar allegations could not itself mitigate damages, following Associated Newspapers Ltd v Dingle [1964] AC 371. The claimant’s conduct and delay could be considered as background, but did not demonstrate that the allegations were taken less seriously.
4. Material relied on to mitigate damages, aggravate compensation or establish causation must ordinarily be notified in good time. Parties should know the case before accepting an offer of amends. Late prejudicial material may be treated as an aggravating factor. The evidence introduced here was admitted only so far as it corrected the claimant’s mistaken assertion about contemporaneous publicity; the remaining late material was ignored.
5. The book claim was assessed at £7,500. The newspaper claim had a trial-based starting figure of £45,000, reduced by 50 per cent to £22,500. The unusual circumstances of the book claim made that award of limited comparative value.