Warren v The Random House Group Ltd

Burstein particulars are a flexible case-management device. The court must balance fairness, the risk of assessing damages on a false basis, the proper scope of the litigation and proportionality. An accepted offer of amends does not automatically prevent reliance on contextual evidence under section 3(6) of the Defamation Act 1996. The latitude allowed cannot exceed that available where liability is contested. A defendant cannot use contextual particulars to reintroduce a rejected justification defence or create a disproportionate inquiry into contentious peripheral matters. A bare assertion of falsity is insufficient to permit evidence of truth without justification.

The claimant brought a libel claim concerning passages in a book about boxer Ricky Hatton. The defendant had made, and the claimant had accepted, an offer of amends concerning an allegation that the claimant had dishonestly misled boxer Vince Phillips about United States television coverage of a fight.

The defendant sought permission to amend its defence by adding extensive Burstein particulars concerning the negotiation and payment of Phillips’s purse. The claimant sought to strike out the original particulars. The central issues were the proper scope of contextual evidence in the statutory assessment of compensation and whether the claimant’s allegations of falsity and aggravation opened the door to evidence of truth.

1. Burstein particulars. The admissibility of matters said to be directly relevant to the contextual background of a defamatory publication is an essentially procedural case-management question. The judge must assess relevance to damage, fairness to both parties, the risk of a false basis for assessment, reasonable limits on the litigation and proportionality. No hard and fast rule can be laid down.

2. An accepted offer of amends and public apology do not by themselves bar Burstein particulars in the assessment of compensation under section 3(6) of the Defamation Act 1996. The defendant’s latitude is nevertheless no wider than it would have been if liability were contested. The offer of amends regime and the public interest in upholding compromises prevent a defendant from using contextual evidence as an indirect plea of justification.

3. The particulars concerning the alleged moral obligation to increase Phillips’s purse after Showtime acquired United States broadcasting rights were admissible. They supplied relevant context and could be confined in subject matter and duration. The particulars alleging dishonest or illegitimate deductions from the purse were inadmissible. They concerned a different allegation, threatened a prolonged and disproportionate factual inquiry, and effectively revived the justification defence previously refused.

4. Only the permissible part of the hybrid paragraph 6.4.2(13) could remain. The allegation that the claimant dishonestly avoided paying Phillips was struck out, while the separate point concerning the basis on which the purse had been agreed was allowed. The claimant’s pleaded allegations of falsity and aggravated damages did not amount to a positive case of falsity sufficient to permit evidence of truth without justification. Once an offer of amends has been accepted and an apology made, cases permitting such a course will be few and far between.

5. The defendant’s amendment was allowed only in the limited respects identified. The claimant’s cross-application succeeded in striking out the impermissible original particulars.

First-instance procedural decision on cross-applications concerning amendments and Burstein particulars. No earlier decision is identified by citation in the judgment.