Charlton v EMAP plc and others
Reference: (1993) TLR 333
Court: Queen's Bench Division
Judge: HHJ John Previte QC
Date of judgment: 23 May 1993
Summary: Defamation - settlement - statement in open court - defendant's objection to terms - court's approach - relevant considerations - whether commercial reasons for settlement offer to be referred to
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C, a dressmaker, sued the publisher editor and authors of a series of articles in Streetlife, a weekly local newspaper in Hampshire. She claimed they had seriously libelled her in respect of her business conduct. The Ds pleaded justification. However, in January 1993 the Ds increased previous settlement offers to bring the total sum offered to £75,000. C accepted that offer, and applied for leave to read a statement in open court. The Ds accepted that C was entitled to read some form of statement, but objected to the terms proposed by C. Evidence from the Ds’ solicitor asserted that their settlement offer had been made despite the Ds’ confidence in their prospects of success, because it had been calculated that the Ds’ costs of a 30 day trial would be some £237,500, and the Ds believed that C, who was acting in person, would be unable to pay the Ds’ costs even if they won at trial. The Ds maintained that (i) the court should not allow C to allege in the statement that the Ds had published maliciously unless she adduced evidence on the issue (ii) the statement should reflect the Ds’ contentions in the litigation and (iii) the statement to be read should acknowledge their commercial reasons for settling the case.
(1) to what extent the court considering an application for leave to read a statement in court should enquire into the merits of the claim and defence;
(2) whether the wording proposed by C was appropriate having regard to the rival contentions of the parties;
(3) whether the statement should refer not only to the fact that the money paid into court was paid in without any admission of liability but also to the defendants’ contention that the money was paid in for “commercial reasons”, and to the basis for this contention.
(1) It would be impractical to investigate the merits of the rival contentions, but the court in determining what could properly be said should take into account the pleaded cases of the parties and endeavour to ensure that these are referred to in the statement. Thus, whilst the plaintiff could say that the allegations were entirely false, the statement should record that the defendants have always maintained that the imputations complained of could be justified. The statement should not suggest that the defendants acted improperly in advancing their plea of justification. The court should to some extent make its own judgment on what it thinks of the case of the plaintiff and of the defendant and consider whether the terms of the proposed statement are fair and just to both parties.
(2) The court listed 11 factors to be taken into account when considering the wording of the proposed statement, and concluded that the plaintiff was entitled to a statement which wholly vindicated and exonerated her in respect of all the allegations made in the articles, and that nothing said in respect of the defendants should detract from that vindication.
(3) Thus, whilst it should be recorded that the Ds had always maintained that what they published was true; that C’s claims for special, aggravated and exemplary damages were unsustainable; that there was nothing malicious in the conduct of the defence; and that all payments into court were made with a denial of liability, the Ds were not entitled to have it said on behalf of C that the money was paid in for ‘commercial reasons’ or to have C state the basis for the calculation referred to in the Ds’ evidence.
One of a small number of decisions on the right approach for the court to take to approving the terms of a draft statement in open court. The significance of the legal issues persuaded the Judge to permit the judgment to be reported, at a time when it was widely considered that judgments given in chambers were not automatically public. The case was reported in The Times, but not otherwise, and practitioners may find the transcript helpful.