Court of Appeal upholds substantial damages discount for offers of amends: Nail v News Group Newspapers

The actor and singer Jimmy Nail has lost his appeal against the decision of Mr Justice Eady to reduce his damages award by 50% because of the use by the defendants of the Offer of Amends regime.

Jimmy Nail had issued proceedings over an article published in the News of the Worldcontaining defamatory allegations concerning his sexual conduct, personal life and professional activities.  Jimmy Nail accepted an Offer of Amends and News of the Worldpublished an apology.  The judge assessed damages at a level of £45,000 for the newspaper publication, which he then reduced to £22,500 taking into account various mitigating factors, in particular the use of the Offer of Amends regime.

Jimmy Nail appealed to the Court of Appeal claiming that the judge had been wrong to apply the discount as a means of encouraging other defendants to use the Offer of Amends procedure. He also complained that the judge had not properly analysed the facts on which he had based his judgment on the issue of mitigation.

Lord Justice May, giving judgment for the Court of Appeal, made a number of observations in rejecting the appeal.  He confirmed that a judge should make his own assessment, rather than trying to speculate what a jury might award.  He also observed that “awards of general damages and personal injuries are scarcely comparable” while libel awards should not be “disproportionately large“.

The Judge observed that damages in libel cases must not drive down damages “to a level which publishers might with equanimity be tempted to risk …”  They should also not be disproportionately high so that “freedom of expression is unduly curtailed.”

In this case, however, where an unqualified Offer of Amends had been made and accepted, and an agreed apology had been published, there was bound to be substantial mitigation.  “The Claimant knows his reputation has been repaired to the full extent that that is possible.  He is vindicated.  He is relieved from the anxiety and costs risk of contested proceedings.”

Lord Justice May went on to consider the 50% discount.  He again noted the existence of mitigating and lack of aggravating factors.  He rejected submissions made on behalf of Mr Nail both as to the timing and prominence of the apology, and concluded that the sum awarded in the High Court was not wrong to the extent that the Court of Appeal should vary it.

The Judge rejected any idea that there may be a standard percentage discount for an Offer of Amends, stating that each case must be separately considered.  However, he did observe that in similar cases a finding of substantial mitigation is likely to be found, in effect confirming the principle adopted by Mr Justice Eady (and criticised on behalf of Jimmy Nail) of providing “a healthy discount“, by way of a “reward” to the media defendant for using the Offer of Amends regime.

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