Full case report
Lisle-Mainwaring v Associated Newspapers Ltd & Anor
Reference  EWHC 543 (QB)
Court High Court, Queen's Bench Division
Judge HHJ Parkes QC
Date of Judgment 17 Mar 2017
Defamation – offer of amends – s3(5) defamation act 1996 – Burstein mitigation – s12 Defamation Act 1952 – special damages – removal of republication
C was the owner of a building in Kensington which attracted media attention when she painted it with red and white stripes. She brought libel proceedings against D in respect of two articles.
The online articles were taken down just over 4 months after publication, at the same time as D made a qualified offer of amends, which was accepted.
The meanings (broadly) were that C had reneged on commitments made to the family of her deceased husband, failed to keep promises of money and property worth millions made by him to his children and grandchildren and had betrayed the trust place in her by her late husband to look after his family financially. There was also a closed part of the libel claim concerning a confidential matter.
In addition, C had a special damages claim in respect of costs incurred in removing from the internet alleged republications of the libels by third parties.
C issued an application for assessment of compensation under s.3(5) Defamation Act 1996.
C had separately issued proceedings against her stepson which included a libel claim; this was compromised by payment of £25,000 and costs. D relied on those damages for the purposes of s.12 Defamation Act 1952, and also relied on a number of matters in mitigation of damage: Burstein v Times Newspapers Ltd  1 WLR 579.
(1) The sum to be awarded to C by way of compensation under s.3(5) Defamation Act 1996 (including (a) whether Burstein particulars or the libel damages in the other claim had any impact on that sum and (b) whether there should be a single award or separate awards)
(2) The discount to be applied to the award of general damages in light of the offer of amends.
(3) Whether C should be awarded special damages and if so in what sum.
(1) In the Offer of Amends procedure the Burstein particulars should be considered in the first stage of assessment of compensatory damages prior to dealing with any discount for the Offer of Amends. The Burstein material related to a finding of unconscionable conduct in relation to a business matter in earlier unrelated Court proceedings. This had no real connection to the current allegations which related to breach of trust concerning family members and did not damage C’s reputation in the relevant sector of her life. No discount was warranted by the Burstein material.
(2) C’s recovery of damages in the other libel claim was substantially in respect of publication of words to the same effect and so D could properly rely on it in mitigation of damages, though the court did not quantify precisely this aspect of mitigation.
(3) The articles were published only days apart and substantially overlapped, so a single award was appropriate.
(4) The allegations were hurtful and unpleasant and went directly to Cs personal honour and integrity. Taking into account C’s recovery of damages in the other libel claim the right starting point was £90,000.
(5) Regarding the discount, although D had initially been slow to engage with C’s complaint, after the Offer of Amends was made D had engaged reasonably with Cs requirements which were often expressed in aggressive terms which made conciliatory response difficult. C was slow to respond to the Offer of Amends and caused further delays, and the D should not lose credit on account of difficulties which accrue due to negotiation. The proper discount was 40% and therefore the award of general damages was £54,000.
(6) Special damages were in principle recoverable in cases where an Offer of Amends has been made. The acceptance of an Offer of Amends in effect freezes the action subject only to assessment of damages and the Court’s obligation under s.3(5) to take into account the adequacy of the Defendant’s implementation of the Offer of Amends. The obligation is on the Claimant to make clear the full extent of their claim, and here there was no pleaded claim for continuing special damage. The provisional conclusion was that the special damages claim should be dismissed. However, C was not shut out from applying for a separate assessment of special damages but it would have to be limited to Cs pleaded case.
This case is another example of the Offer of Amends procedure in action, following Barron v Collins  EWHC 162 (QB) earlier this year. The judgment contains an in-depth examination of the approach to be taken when awarding sums by way of compensation under s3(5) Defamation Act 1996.
Of particular interest is the discussion of how to plead a claim for special damages based on the cost of removing repetitions and republications of defamatory material from the internet.
DLA Piper LLP for C; Wiggin LLP for D.
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