Club La Costa (UK) Plc v Gebhard & Anor

A qualified offer of amends under Defamation Act 1996, section 2 must accept that the publication conveys a defamatory meaning referring to the claimant. An offer which accepts a defamatory meaning but expressly reserves a defence that the words did not refer to the claimant is equivocal and falls outside the statutory scheme.

A conditional purported acceptance may amount only to a counter-offer. Whether words are capable of referring to a claimant must be assessed by reference to the words and their context, including the knowledge of the person to whom they were published. An early ruling is unsafe where relevant contextual material is not before the court.

The claimant brought a libel action concerning words spoken by the first defendant to an employee of GE Money. The defendants pleaded, among other matters, that the words did not refer to the claimant, that they were published on an occasion of qualified privilege, and that the defendants had made a qualified offer of amends under the Defamation Act 1996.

The claimant applied to strike out the offer-of-amends defence and sought summary judgment on the issue of reference. The principal questions were whether the correspondence contained a valid qualified offer of amends and whether the reference issue could safely be determined before trial.

1. Offer of amends. The purported qualified offer in the solicitors’ letter of 30 July 2008 was not an offer within section 2 of the Defamation Act 1996. Section 2(2) requires acceptance of a specific defamatory meaning conveyed by the statement. In context, that means a meaning defamatory of, and therefore referring to, the person making the allegation. A publisher cannot accept that the words convey a defamatory meaning while reserving a defence that they were incapable of referring to that claimant.
2. The offer was also equivocal because it accepted a meaning concerning a company operating under the Club La Costa brand, while reserving the position that the words did not refer to the claimant. The proposed correction itself referred to the claimant, reinforcing that reference was an essential part of the alleged correction. The earlier letters did not cure the defect.
3. The claimant’s letter of 11 September 2008 was not an acceptance under section 3(1), because there had been no statutory offer to accept. In any event, the conditions proposed by the claimant went beyond the defendants’ offer and would, on contractual principles, have amounted to a counter-offer. The court’s reasoning was consistent with Warren v Random House [2008] EWCA Civ 834, Loughton Contracts v Dun & Bradstreet [2006] EWHC 1224 (QB) and S D Marine Ltd v Craig Powell [2006] EWHC 3095 (QB).
4. It was unnecessary to decide whether a defence of qualified privilege could be combined with a qualified offer of amends relating to another meaning. The authority of Warren v Random House [2007] EWHC 2856 (QB) supported the general possibility of an offer relating to part of a publication, but did not resolve the qualified-privilege issue.
5. Reference. The issue whether the words were capable of referring to the claimant had to be decided by considering the words in their full context and the knowledge of the person to whom they were spoken. Although the court had the transcript, it might not have all relevant information concerning the recipient’s prior dealings and knowledge. It was therefore unsafe to determine at that stage whether the defence had a real prospect of success.
6. The claimant’s applications succeeded only to the extent that paragraph 6 of the defence, pleading the offer-of-amends defence, was struck out. The applications otherwise failed.

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