Reference:  EWHC 895 (QB)
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 26 Apr 2010
Summary: Libel - Offer to make amends - Defamation Act 1996, ss.2 - 4 - Compensation - Costs - Rejection of settlement offers
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Alexandra Marzec (Defendant)
David Sherborne (Claimant)
Instructing Solicitors: Schillings for the Claimant; MGN Legal Department for the Defendant
The Claimant, C, a leading musical theatre actor, had complained about an article published on the website Mirror.co.uk, published by MGN Limited (D). The article implied that he was in a romantic relationship with Hannah Waterman, another actor. C complained that since he was in fact in a serious, committed relationship with another woman the article would have been understood as being defamatory of him. No other details were given as to the defamatory meaning the article was said to bear.
The article was taken down immediately upon complaint being received, and was online for a total of about 27 hours. D also offered to apologise immediately, and an apology and correction appeared on the website on 12 January 2010.
The parties could not agree the appropriate amount of compensation. Part of C’s complaint was that a Mirror.co.uk journalist had spoken to his agent before publication and had been told that the information in the article was incorrect. D denied that such a conversation had taken place.Without prejudice, D made two offers of compensation, the first for £5,000 and the second for £10,000. Both were refused.
(1) The appropriate amount of compensation pursuant to section 3(5) of the Defamation Act 1996;
(2) The appropriate order for costs
Awarding C £4,250 and ordering him to pay costs from the date of acceptance of the offer of amends:
(1) There was no evidence of the number of readers who would have understood the article in a defamatory sense and in the absence of any specific evidence as to publication the Court should take a conservative approach. This was a libel at “the less serious end of the scale”; “a bit of celebrity gossip”. The libel was short-lived and there was no hard evidence of any actual effect on C’s reputation, although there was no doubt that C took the suggestion in the article seriously and suffered some embarrassment and genuine distress.
C had failed to prove that the alleged conversation between his agent and D’s journalist had taken place, but even if he had done so in the overall context it would not have made very much difference. On the other hand, D could be criticised for adopting a “take it or leave it” approach in refusing to answer C’s requests for information before C decided to accept the offer of amends.
The starting figure for compensation was £8,500. D should be given a 50 per cent discount to take account of the mitigating effect of D’s conduct and in particular the offer of amends. The appropriate figure for compensation was therefore £4,250.
(2) C should have his costs up to the date of the acceptance of the offer of amends, and D should have the costs from that date.
Any claimant rejecting a settlement offer, even one that is not made in accordance with Part 36 (as was the case with the offers here), runs the risk that a court will decide he ought to have accepted the offer and will order him to pay costs.
In determining the date from which C should bear the costs, the significance of the acceptance of the offer of amends appears to have been that from that date the compensation to be awarded would be likely to be subject to a discount.