Campbell-James v Guardian Media Group Plc

In an offer of amends assessment, the court should first identify the damages that would have been awarded after trial without significant mitigation or aggravation. It should then assess the reduction attributable to the offer of amends and any apology.

There is no standard percentage discount. The reduction must reflect the individual circumstances, including the timing and quality of the apology and the defendant’s conduct before making the offer. Serious allegations may justify a substantial starting figure, and the offer of amends regime has no arbitrary upper limit. The court must balance proportionate compensation with the established mitigating effect of the statutory procedure.

The claimant, a senior British intelligence officer, applied under section 3(5) of the Defamation Act 1996 for assessment of compensation following publication of an article in The Guardian which linked him with Abu Ghraib prison and the torture and abuse of Iraqi prisoners.

The claimant was not at Abu Ghraib when the abuses occurred and had no responsibility for them. The defendant eventually made an offer of amends and published an apology, but only after approximately three months. The central issue was the appropriate starting figure for damages and the discount to reflect the offer of amends and apology.

1. The application was determined by assessing compensation at £58,500.

2. The libel was exceptionally serious. It connected a serving senior officer with torture and prisoner abuse, damaged matters central to his professional reputation and personal integrity, and created an objectively supported security risk to him and his family. The seriousness of the allegation, its likely lasting effect, and the impact on his professional and personal interests justified a starting figure of £90,000.

3. The court applied the modern, more moderate approach to libel damages reflected in John v MGN Ltd [1997] QB 586 and Heil v Rankin [2001] QB 272. The fact that the allegation was serious did not require restoration of the much higher awards formerly available from juries.

4. The offer of amends regime under sections 2 to 4 of the Defamation Act 1996 was conciliatory and entitled a defendant to a significant reduction. The regime was distinct from the summary procedure under sections 8 to 10, and there was no arbitrary upper limit on the starting figure in an offer of amends case: Abu v MGN Ltd [2003] 1 WLR 2201.

5. There was no standard percentage discount. The court had to assess the individual facts, including the defendant’s delay, its initially dismissive attitude, the prominence and adequacy of the apology, and the mitigating effect of the eventual offer of amends: Nail v News Group Newspapers Ltd [2005] 1 All ER 1040. A discount of 35 per cent was appropriate.