Bowman v MGN Ltd

Compensation under the offer of amends procedure is assessed on the same principles as damages at trial. The court should consider the gravity of the allegation, scale and duration of publication, injury to reputation, distress, hurt feelings, vindication, and aggravating or mitigating circumstances. The assessment is a two-stage exercise: first identify the figure that would have been awarded after trial; then apply an appropriate discount for mitigation. An early offer of amends, prompt removal and apology ordinarily reduce the award, but the discount depends on the circumstances. Online republication and the tendency of defamatory material to spread may also be taken into account.

The claimant, Simon Bowman, complained that MGN Limited had published an online article suggesting that he was romantically involved with Hannah Waterman, despite his long-standing relationship with another person. The publication remained online for approximately 27 hours and was then removed. An apology followed.

The defendant made and the claimant accepted an unqualified offer of amends under sections 2 to 4 of the Defamation Act 1996. The parties could not agree compensation, so the court was required under section 3 to assess the amount payable. The central issues were the defamatory meaning, the likely extent and impact of publication, and the mitigating effect of the defendant’s conduct.

1. The court assessed compensation at £4,250. The appropriate starting figure was £8,500, subject to a 50 per cent discount for mitigation.

2. Compensation under the offer of amends procedure is assessed as damages would be assessed at trial. The court must consider the gravity of the allegation, the scale and duration of publication, injury to reputation, distress and hurt feelings, the need for vindication, and relevant aggravating or mitigating factors.

3. The established approach is two-stage. The court first identifies the figure that would have been awarded after trial, without aggravation or mitigation. It then applies a discount reflecting mitigation. The adoption of the statutory procedure is itself a mitigating factor, although there is no fixed percentage discount.

4. The defamatory suggestion was an allegation of disloyalty or two-timing. Although the publication was short-lived and there was no hard evidence of actual reputational damage, the claimant suffered embarrassment, distress and hurt feelings. The court was also entitled to recognise that defamatory material may spread beyond the original publication.

5. The claimant had to be taken as found. His sensitivity did not prevent recovery for genuine distress, although the temporary and relatively minor nature of the celebrity gossip affected the level of compensation. The court did not compensate the claimant’s partner as though she were a claimant.

6. The discount reflected the early apology, immediate removal of the article and prompt offer of amends. It was reduced in effect by the apology’s modest prominence and the defendant’s limited co-operation in providing information before acceptance of the offer.