(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.