Reference:  EWHC 278 (QB);  EMLR 10
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 19 Feb 2008
Summary: Libel - Stay - Striking out - Open offer to settle - Abuse of process - Proportionality - Damages - Vindication - Statement in open court - Costs
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Appearances: Justin Rushbrooke KC (Claimant) Godwin Busuttil (Claimant)
Instructing Solicitors: Schillings for the Claimants; Reynolds Porter Chamberlain for the Defendant
D made an open offer to settle a libel claim, which it was defending with a detailed plea of justification. D then applied (inter alia) for an order that unless Cs accepted the open offer, the proceedings be stayed on the grounds that to litigate the claim to the conclusion of a trial would be disproportionate and an abuse of process. One key element of the D’s open offer was that it would make a statement in open court that the allegations sued on by Cs were ‘absolutely and utterly false’. Given this proposed admission, Cs applied to strike out the defence of justification and for judgment. The open offer proposed that the costs of the action (except insofar as the court had already made costs orders) be decided by the court ‘according to ordinary principles’.
- Whether the defence of justification should be struck out given D’s proposed admission of falsity.
- Whether the claim should be stayed or dismissed if Cs did not accept D’s open offer.
- Whether the court would permit the draft statement in open court to be read given D’s proposed admission of falsity.
- Whether D’s open offer was capable of acceptance, having regard to the proposal concerning costs.
Dismissing Ds’ applications:
D stated clearly in court that it believed in the truth of the plea of justification. On this basis, Cs’ application to strike out the defence could not succeed. However, it also followed from this that the court would not permit D to make a statement in court – asserting that the allegations complained of by Cs were unfounded – which D believed to be false. Since the proposed statement was a key element of the open offer, as matters stood, the offer was incapable of performance and so could not be accepted. This conclusion was sufficient to dispose of D’s application. However, D’s proposal as to costs presented a further reason for dismissing the application: it rendered the open offer too uncertain to be capable of binding acceptance.
This unprecedented application by a libel defendant prompted a wide-ranging examination of some core principles in the law of defamation and compromise. The basic message, though, is simple and salutary: “The court expects an apology to be frank. It does not expect a claimant to accept an apology which is not full and frank, and which the defendant does not believe in. The court does not accept that a false apology gives vindication which is as good as that given by a true apology.” (para. 74)
(Readers should note that the reporting restriction set out in para. 1 of the judgment has been discharged.)