The Offer of Amends procedure was introduced into the law of libel by section 3 of the 1996 Defamation Act. It was intended to provide a means to the media and other defendants of avoiding the uncertainty of jury awards. After a slow start, the regime is increasingly being used, although the media is watching it closely to see whether it will have the desired effect of providing a quick and inexpensive exit route from what might otherwise be expensive litigation.
In 1998 Harper Collins published a biography of Jimmy Nail entitled Nailed which contained a series of defamatory allegations against him. For various reasons Jimmy Nail decided neither to issue proceedings nor even complain about the book at the time of publication.
In May 2002 the News of the World published an article entitled “Auf Weidersen Jimmy’s Secret Bondage Orgies“. The content of the article can be guessed from the title. The News of the World article was to a large extent based on the contents of the book. Jimmy Nail then issued proceedings concerning both publications. In both actions an Offer of Amends was made and accepted. Apologies were published and all that remained for Mr Justice Eady to determine was the appropriate compensation to be paid under section 3(5) of the Act.
The judge accepted submissions on behalf of the defendant that if media defendants are going to make use of the Offer of Amends procedure then they must “feel confident of getting a “healthy discount” for a adopting what is, in effect, a conciliation process.” The judge agreed that, “Media defendants who act promptly when confronted with a claim are entitled to be rewarded for making the offer and, correspondingly, the claimant’s ordeal will generally be significantly reduced with immediate effect.”
Despite the recent doubting of its appropriateness by the Privy Council in Gleaner v Adams the judge applied the principle that the damages available to the claimant should be judged by comparison with personal injury judgments. He also took into account the fact that by the time the News of the World article was published the allegations in the book had been “allowed to gain to some extent in currency” because of Jimmy Nail’s failure to challenge them.
Applying these principles to the action against Harper Collins, bearing in mind that only approximately 100 editions of the book were published after the limitation period had expired, the judge awarded £7,500 by way of damages. So far as the newspaper article was concerned, he said that he would have awarded £45,000 without taking into account the mitigating factors, for which he made a reduction of 50%, leaving a figure of £22,500. As was widely reported however, since there had been an offer of settlement of £37,500, the award has the effect of leaving the claimant with a substantial net liability in costs.
This is a clear example of the court rewarding the media defendant for having adopted the Offer of Amends procedure very early on, and granting it a very substantial discount of 50% which is intended to serve as an incentive to the print press in the future to adopt this procedure. It seems likely, therefore, that this procedure allied with a payment into court will become increasingly common, particularly where judges like Mr Justice Eady (who effectively invented the process) make such a point of both extolling its benefits and halving the sum of damages awarded.