Gilham v MGN Ltd & Anor

Compensation following a qualified offer of amends is assessed in two stages. First, the court identifies the damages that would have been awarded without the offer, taking account of relevant mitigation and aggravation occurring before it. Secondly, the court discounts that figure for the mitigating effect of the statutory offer and the steps taken to fulfil it. Background facts may be admitted under the Burstein principle where they are directly relevant to the claimant’s reputation in the relevant sector and exclusion would create a real risk of assessing damages on a false basis. A single award may be made for related publications where separate awards would create complexity or a risk of double recovery.

The claimant, a teacher and rugby coach, accepted the defendants’ qualified offer of amends under section 3 of the Defamation Act 1996. The publications incorrectly stated that the Teaching Regulation Agency had found him guilty of unacceptable professional conduct and would punish him. The defendants accepted the error, published corrections and later made the statutory offer. The parties disputed the appropriate compensation, the admissibility and effect of matters concerning the claimant’s dismissal and regulatory findings, whether one or two awards should be made, and the discount attributable to the offer of amends.

1. Disposition. The court assessed compensation at £49,000 and ordered a single award against the defendants, who accepted joint and several liability.
2. Two-stage assessment. Under section 3(5) of the Defamation Act 1996, the court first assessed the sum that would have been awarded in substantive libel proceedings, then applied a discount for the offer of amends and its implementation. The December apologies were taken into account at stage one because they pre-dated the offer and would have been relevant in ordinary proceedings. A starting figure of £85,000 was reduced by 15 per cent for those apologies.
3. Relevant background. The factual findings of the Teaching Regulation Agency were admissible. The bare fact of the claimant’s dismissal was also admissible as directly relevant background concerning his professional reputation, but it was not treated as evidence that the underlying allegations were true. The regulatory findings justified a further 15 per cent reduction, producing £61,200.
4. Stage two discount. The prompt and comprehensive offer materially mitigated the harm. The June apologies, however, were grudging, unsuitable and insufficient because they repeated or implied defamatory matters and failed to provide adequate vindication. A discount of approximately 20 per cent was therefore applied, producing £49,000.
5. Single award. The publications were closely connected, largely repeated the same material and were addressed by a global offer. Separate awards would add complexity and create a real risk of double recovery.
6. The final figure was checked against the parties’ Article 8 and Article 10 rights. The court declined to determine whether a success fee was recoverable, leaving that issue to the costs judge.

First-instance determination of compensation under an accepted qualified offer of amends. No appellate history was stated in the judgment.