Section 4 of the Defamation Act 1996 introduced the Offer of Amends defence as a quick and easy complete defence available to defendants who sought an early settlement of libel proceedings against them. If the defence is accepted, a judge then assesses the damages if a figure cannot be agreed. As Lord Justice May observed in the Court of Appeal:
“It is to be expected that most sensible claimants will accept unqualified offers to make amends. The main purpose of the statutory provisions is plain. It is to encourage the sensible compromise of defamation proceedings without the need of an expensive jury trial.”
Section 4(3) does however limit the scope of the defence:
“There is no such defence if the person by whom the offer was made knew or had reason to believe that the statement complained of –
- referred to the aggrieved party or was likely to be understood as referring to him, and
- was both false and defamatory of that party;
but it shall be presumed until the contrary is shown that he did not know and had no reason to believe that was the case.”
The key issue in the High Court had been the interpretation of the words “… or had reason to believe that the statement complained of … was … false…” Mr Justice Eady had ruled in effect that a journalist needed to have been reckless before losing the right to rely on this defence.
The Court of Appeal ruled that the judge’s interpretation of section 4(3) was entirely correct for the reasons he gave, affirming that “reason to believe” meant nothing short of recklessness. The effect of this is that in order to defeat the right of a defendant to rely on the defence, the claimant must prove “malice”. The Court of Appeal decided that any other conclusion would defeat the purpose intended for the defence.
Since malice is notoriously difficult to prove in libel, a defendant will rarely be barred from relying on the Offer of Amends defence. The Court of Appeal did not think that the automatic loss of the claimant’s right to jury trial was a good enough reason to require anything less than proof of recklessness to defeat the defence.
This pragmatic decision on the part of the Court of Appeal further undermines what was thought to have been a fundamental right on the part of a libel claimant to a jury trial. However, the Court of Appeal has clearly set out to ensure that only in the most exceptional circumstances will a defendant opting for the Offer of Amends defence be prevented from relying on it.