Associated Newspapers Ltd v Murray

A statement in open court following settlement of a defamation claim should ordinarily be permitted unless a sufficient reason, ordinarily real or substantial unfairness, is shown. It must be fair and proportionate, must not misrepresent the pleaded case or settlement, and should have regard to third-party interests. Acceptance of an offer of amends under the Defamation Act 1996 does not create a special restriction. The application is a separate procedural step. Ordinary language may be used, including a word absent from the pleading, where it accurately conveys the pleaded meaning and does not mislead. The permissible scope of references relevant to aggravated damages remains fact-sensitive.

The claimant, Joanne Murray, brought a libel claim concerning an article published by Associated Newspapers Limited. Before serving its defence, the defendant made an unqualified offer of amends under the Defamation Act 1996, which the claimant accepted.

The parties could not agree the terms of an apology. Tugendhat J permitted the claimant to read a unilateral statement in open court: [2014] EWHC 1170 (QB). The defendant appealed, arguing that the statement misstated the pleaded meaning and referred to matters relevant to aggravated damages that had not been pleaded. The aggravated-damages objection was no longer opposed by the claimant. The principal issue was the proper approach to approving the statement.

The appeal was dismissed unanimously. Lady Justice Sharp gave the leading judgment, with Lord Justice Ryder and Lord Justice Longmore agreeing.

1. Under the Civil Procedure Rules 1998 Part 53 Practice Direction, a claimant who has settled a defamation claim may seek permission to read a unilateral statement in open court. The procedure is a valuable means of vindication and assists settlement.
2. The governing threshold is high. Following a bona fide settlement, permission should ordinarily be granted unless a sufficient reason appears, normally involving real or substantial unfairness. The statement must be fair and proportionate, must not misrepresent the pleaded case or settlement, and must have regard to third-party interests. Nit-picking should be discouraged. Applications will usually be dealt with on the papers.
3. No special or more restrictive approach applies merely because the settlement followed an offer of amends. Acceptance of an unqualified offer under section 2(2) of the Defamation Act 1996 fixed the meaning accepted by the defendant, but the application to make a statement was a separate and independent step. The statutory provisions concerning the bar on continuing proceedings and the assessment of compensation did not control what the claimant could say. The defendant remained free to publish its own account of the settlement.
4. The word dishonest was permissible. The pleaded meaning was set out clearly and accurately in the statement, and the word was merely an ordinary, less formal expression of that meaning. It did not mislead a reasonable reader or listener and did not alter the meaning conceded by the defendant.
5. The aggravated-damages issue was academic and was not determined. The court observed that the permissible content of a statement cannot be governed rigidly by the four corners of the pleading. Matters raised in correspondence, or arising after pleading, may be relevant depending on the facts.

• Court of Appeal (Civil Division) — The appeal against the order of Tugendhat J was dismissed: [2015] EWCA Civ 488.
• High Court of Justice, Queen’s Bench Division — Tugendhat J permitted the claimant to read a unilateral statement in open court after acceptance of the offer of amends: [2014] EWHC 1170 (QB).