Loughton Contracts Plc v Dun & Bradstreet Ltd

Under the offer of amends procedure, acceptance must correspond with the offer made. An acceptance coupled with an assertion of a right to pursue a materially wider claim, including special damages not pleaded when the offer was made, is a counter-offer rather than a valid acceptance.

A claimant should decide promptly whether to accept an offer and investigate any uncertainty about damage without delay. Nevertheless, where the claimant has consistently wished to accept the offer and has acted in good faith, the court may permit belated acceptance on the offer’s original terms. Further information relevant only to an excluded claim for special damages will not be ordered.

Loughton Contracts Plc brought libel proceedings against Dun & Bradstreet Ltd concerning the publication of a credit report. The claimant pleaded general damages and reserved the possibility of claiming special damages in the future.

The defendant made an unqualified offer of amends under sections 2 to 4 of the Defamation Act 1996, expressly covering the claim as pleaded and damage claimed to date. The claimant purported to accept while reserving a right to pursue special damages after obtaining further information about publication and loss.

The central issues were whether the offer had been accepted, whether the claimant could accept it belatedly on its original terms, and whether further information should be provided.

1. Acceptance of the offer. The offer was expressly limited to the defamation claim as pleaded, which contained a claim for general damages only. The reservation of a right to claim special damages did not itself constitute such a claim.
2. The claimant’s letter purporting to accept the offer while asserting a right to make a future claim for special damages did not match the offer. It was, applying contractual terminology to the statutory language of offer and acceptance, a counter-offer. The application for summary judgment was therefore refused.
3. The statutory scheme in sections 2 to 4 of the Defamation Act 1996 is relatively strict. A claimant receiving an offer should decide promptly whether to accept it and should investigate any uncertainty about special damage without delay. Where appropriate, pre-action disclosure may be sought.
4. The claimant could not use the offer procedure to defer acceptance while awaiting disclosure which might enable a materially wider claim. The approach was consistent with the observations in Abu v MGN Ltd [2003] 1 WLR 2201 and Nail v News Group Newspapers Ltd [2005] 1 All ER 1040, particularly the principle that pleaded allegations should not ordinarily be significantly enlarged after acceptance.
5. Despite the invalid purported acceptance, the court permitted the claimant to accept the defendant’s offer belatedly on its original terms. The claimant had consistently expressed a wish to accept, had acted without bad faith, and otherwise faced an almost certain section 4 defence and no recovery of damages.
6. The application for further information was refused. The information sought related only to special damages, whereas the offer was confined to general damages.

First-instance decision. No earlier appellate decision is stated in the judgment.