Undre & Anor v The London Borough of Harrow

In assessing compensation after an accepted offer of amends in defamation proceedings, the court must isolate the marginal harm caused by the defamatory words themselves. It may take account of earlier publicity, uncomplained-for material and relevant background context when assessing the extent of that harm, provided this does not amount to an attack on the claimant’s character or justification by the back door. The claimant’s particular characteristics remain relevant. The court should first assess fair compensation and then apply an appropriate discount for the offer of amends, considering the timing and adequacy of the apology and correction.

The first claimant brought libel proceedings concerning a council news release stating that his neglect had led to the deaths of three cows. An offer of amends under ss 2–4 of the Defamation Act 1996 was accepted, but the parties could not agree compensation.

Warby J had previously held that the words referred to and defamed the first claimant, but not the corporate claimant: [2016] EWHC 391 (QB). The remaining issue was the assessment of compensation, including the effect of earlier publicity, other uncomplained-for criticisms, republications, mitigation and alleged special damage.

1. Compensation. The final compensation payable to the first claimant was assessed at £9,000. The appropriate starting figure was £12,000, reduced by 25 per cent to reflect the offer of amends and the surrounding circumstances.
2. Marginal damage. The court had to confine the award to harm caused specifically by the allegation that the claimant’s neglect had caused the deaths, over and above harm attributable to earlier publicity, the convictions, the District Judge’s observations and other uncomplained-for passages in the news release. This followed from the statutory offer of amends regime, notwithstanding the artificiality of isolating particular effects.
3. Serious harm and mitigation. Because the defendant accepted that the words caused serious harm for the purposes of s 1 of the Defamation Act 2013, it could not contend that the award should be nominal or that the allegation was trivial. It could, however, rely on relevant background context which did not constitute an attack on the claimant’s character or an attempt to justify the allegation indirectly.
4. Relevant circumstances. The claimant had to be compensated according to his particular characteristics. His convictions and the criticisms in the District Judge’s written decision were background facts relevant to quantum, rather than a fresh attack by the defendant.
5. Offer of amends. Under s 3(5) of the Defamation Act 1996, the court had to consider steps taken under the offer, including the suitability of the correction, the sufficiency of the apology and the reasonableness of its publication. Discounts commonly fall between 25 and 50 per cent, depending particularly on the defendant’s promptness and conduct. The delayed and grudging clarification justified only a 25 per cent discount.
6. Special damage. Claims for business losses, a lost contract and damage associated with a protester failed because causal links to the particular defamatory words could not be established, and some losses were too remote.

This was a first-instance assessment following an earlier ruling in the same proceedings.

• High Court (Queen’s Bench Division): Warby J held that the words referred to and defamed the first claimant, but did not refer to or defame the second claimant: [2016] EWHC 391 (QB).
• High Court (Queen’s Bench Division): Sir David Eady assessed compensation for the first claimant at £9,000.