Warren v The Random House Group Ltd.

An accepted offer of amends under the Defamation Act 1996 brings the defamation claim to an end and substitutes the statutory enforcement procedure. Apart from traditional grounds for avoiding an agreement, the court may permit withdrawal only in special or exceptional circumstances. Later discovery of evidence which reasonable pre-offer investigation might have revealed will not ordinarily suffice.

Material advanced solely in mitigation must form part of the directly relevant background context of the libel. A defendant cannot use mitigation or an aggravated-damages response to introduce a substantive justification defence. Nor may a defendant justify a separate defamatory meaning which the words complained of, read in context, cannot bear.

The claimant, a boxing promoter, sued the publisher of an autobiographical book by a boxer over three allegedly defamatory passages. The publisher made an offer of amends concerning an allegation that the claimant had dishonestly induced another boxer to accept a low fee. The offer was accepted and an agreed statement was read in open court.

The publisher later obtained evidence which it said supported justification. Gray J refused permission to withdraw from the accepted offer and plead justification, and restricted the contextual particulars admissible when compensation was assessed. Eady J refused disclosure of broadcasting contracts and struck out a wider justification plea concerning a separate allegation that the claimant had lied about the boxer's earnings.

The appeals concerned withdrawal from an accepted offer of amends, the scope of contextual mitigation, disclosure, and whether the wider justification plea introduced a separate defamatory meaning.

1. Disposition. The appeals were dismissed except that the publisher was entitled to disclosure of contractual documents concerning Showtime, but not the BSkyB contract. The Showtime documents were relevant to the permitted allegation that increased broadcasting revenue created a moral obligation to increase the boxer's fee.
2. An accepted offer under sections 2 and 3 of the Defamation Act 1996 ends the defamation proceedings and replaces them with the statutory procedure for enforcing the offer and determining compensation. The ordinary principles governing amendment under CPR Part 17 therefore do not apply. Although an accepted offer may not create a contract in the strict sense, traditional contractual grounds may permit a party to escape its consequences. The court also retains a narrow residual discretion exercisable only in special or exceptional circumstances.
3. The relevant inquiry is whether later circumstances are so different from those contemplated when the offer was accepted that justice requires depriving the claimant of the agreed benefit. A publisher should make all reasonable investigations before offering amends. A decision to offer after a limited investigation carries the risk that further evidence will emerge. Here the publisher could have identified and questioned the boxer's advisers before making its offer. Its later evidence therefore supplied no special circumstance permitting withdrawal.
4. The accepted offer was voluntary, informed and unequivocal. Holding the publisher to it infringed neither article 6 nor article 10 of the European Convention on Human Rights. The offer did not prevent future republication or a justification defence to any new claim, but section 3(2) precluded continuation of the existing claim and the grant of an injunction in it.
5. Under Burstein v Times Newspapers Ltd [2001] 1 WLR 579, a defendant may rely in mitigation on directly relevant background context even though it forms no substantive defence. The material must be clearly relevant to the libel, the claimant's reputation in the affected sphere, or the claimant's sensibility, so that withholding it risks assessment on a false basis. The proposed allegations about later fee deductions and disputes were too remote and potentially required disproportionate satellite litigation.
6. A defendant responding to aggravated damages may prove its contemporaneous state of mind, including an honestly and reasonably held belief in the allegation. It cannot plead the truth of the allegation itself after liability has been established or accepted.
7. A claimant may confine a complaint to a severable defamatory allegation. Context cannot support justification of a separate meaning which the selected words are incapable of bearing. The allegation about lying over earnings did not embrace the parties' contractual dispute, and the wider Lucas-Box meaning was therefore properly struck out.

• Court of Appeal (Civil Division): Dismissed the appeals from Gray J and Eady J except for the application concerning disclosure, which was allowed only in relation to the Showtime contractual documents: [2008] EWCA Civ 834.
• High Court, Queen's Bench Division: Gray J refused withdrawal from the accepted offer of amends and restricted the proposed contextual particulars. Eady J refused disclosure of the broadcasting contracts and struck out part of the wider justification plea: [2007] EWHC 2856, 2860 and 3062 (QB).