Club La Costa (UK) PLC v (1) Toby Gebhard (2) Inventory Solutions (UK) Limited

Reference: [2008] EWHC 2552 (QB); [2008] WLR (D) 332

Court: Queen’s Bench Division

Judge: Tugendhat J

Date of judgment: 24 Oct 2008

Summary: Defamation - offer of amends - s. 2 Defamation Act 1996 - qualified privilege

Appearances: Jonathan Barnes (Claimant) 

Instructing Solicitors: M Law for the Claimant; Hand Morgan Owen for the Defendants

Facts

The Claimant sued for slander over the contents of a telephone conversation in which the Claimant contended the Defendants had referred to the Claimant and defamed it. The Defendants argued that in relation to one of their allegations they had made an offer to make amends to the Claimant under section 2 of the Defamation Act 1996. They relied on this by way of defence, but at the same time denied they had referred to the Claimant and contended in any event that the telephoned conversation had taken place on an occasion of qualified privilege.

Issue

Whether the alleged offer to make amends complied with section 2, and the interaction of the defence of offer to make amends with defences of reference and qualified privilege.

Held

The offer relied on did not comply with section 2, and so was not a valid offer to make amends, since it was at best equivocal in that it had been made in respect of “a company” within the Claimant’s group of companies, rather than in respect of the Claimant itself. To be effective, an offer to make amends had to be made in respect of a defamatory statement which the offeror accepted had referred to the Claimant, so that with reference to the language of section 2 the offeror was taken to admit the Claimant’s grievance. In this light, there was no need to decide the other issues concerning the interaction between the defences.

Comment

This adds a modest confirmation to the expanding body of case law under section 2, that when a defendant makes an offer to make amends that offer will necessarily incorporate acknowledgments both that he has used defamatory language and that the defamatory meaning he accepts his words carried did in fact refer specifically to the party making complaint, in other words to the claimant.

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