Adelson & Anor v Associated Newspapers

A defendant cannot simultaneously maintain a genuine belief in the truth of a plea of justification and offer to make a Statement in Open Court declaring the allegations absolutely false, where the two positions are contradictory. The court will not permit itself to be used for making a statement which the maker says is false. An open settlement offer must also be sufficiently certain to produce a binding settlement. Where acceptance would leave the parties to litigate complex and substantial costs issues, the offer may be incapable of binding acceptance. The possibility of staying a libel claim as an abuse of process after an adequate open offer was left undecided, because the offer in question could not be performed or accepted.

The claimants brought libel proceedings concerning an article published in the Daily Mail. The defendant had admitted or offered to amend certain allegations, but maintained a plea of justification in relation to other matters. It made an open settlement offer comprising damages, undertakings, a correction and apology, and a Statement in Open Court stating that the allegations were absolutely false.

The defendant applied to stay or dismiss the remaining proceedings under CPR Part 3.1(2)(f), alleging that the costs of a full trial were disproportionate and that the offer provided adequate vindication. The claimants applied to strike out the justification defence and sought judgment on liability. The central questions were whether the offer could be performed and accepted while the justification defence was maintained, and whether its costs provision was sufficiently certain.

1. The applications were dismissed. The claimants’ application to strike out the justification defence failed because the defendant had clearly stated that it believed the pleaded matters to be true.
2. On the facts of this case, the defendant could not both maintain that belief and join in a Statement in Open Court saying that the allegations were absolutely false. The contradiction might not arise in every case. A defendant’s state of mind may change, the proposed wording may address a different meaning, or negotiations may occur before the defendant has settled its position.
3. The court’s permission is required before a Statement in Open Court may be made. Although the judge does not ordinarily investigate whether the statement is true, the court will not give permission where a party informs it that the party proposes to make a statement which that party believes to be false. The relevant practice direction did not permit the court to cure the contradiction by approving different wording on an application under CPR Part 53.
4. The Statement in Open Court was an essential part of the open offer. Since it could not be performed while the justification defence was maintained, the offer could not be accepted and did not justify a stay.
5. The costs provision was independently too uncertain. The proposed settlement left substantial and complex costs issues, including the effect of earlier offers, previous costs orders and the parties’ conduct. There was a real prospect that a judge would decline to determine costs after settlement and require the action to continue unless costs were agreed.
6. The court therefore did not decide the wider question whether an adequate open offer could ever make continuation of a libel action an abuse of process. Nor was it necessary to decide the mode of trial. The separate application for summary judgment against the second claimant was left to be considered with the matters remaining for trial.

The judgment records earlier interlocutory decisions in the same litigation, including [2007] EWHC 997 (QB) and [2007] EWHC 3028 (QB). An appeal from the earlier decision concerning joinder was dismissed by the Court of Appeal on 9 July 2007: [2007] EWCA Civ 701; [2007] 4 All ER 330. Those decisions were procedural stages of the same action and are not treated as authorities cited.