Full case report
Moore v Scottish Daily Record
Reference  CSOH 24
Court Outer House, Court of Session
Judge Lady Paton
Date of Judgment 7 Feb 2007
Scotland – Defamation – Offer of amends – rejection – late acceptance – statutory construction – costs
The pursuer was a professional footballer. The Daily Record described in an article how he had racially abused a taxi driver. It was a case of mistaken identity and the Defendant made an unqualified offer of amends under s. 2 of the Defamation Act 1996 (made applicable to Scotland by s. 18 of the Act). Belatedly, after 19 months ignoring the offer of amends, relying on s. 4(3) and issuing a defamation summons continuing proceedings, the pursuer accepted the offer of amends and applied for the court to determine compensation, order an apology be printed and find the Defenders liable for costs. The Defendant applied that the action be dismissed.
Whether having continued proceedings after a valid offer of amends had been made and initially relying on reckless publication under s. 4(3) it was still open to the pursuer to accept the offer of amends.
1. The proper construction of the statute may not necessarily lead to the same results as the application of contract law.
2. There is no time limit for acceptance and no restrictions are placed on pursuers prior to acceptance so long as the offer is not withdrawn.
3. There was a difference between failure to accept the offer and acts amounting to rejection of it. An offer which was not withdrawn could be accepted albeit at a late stage.
4. Drawn out acceptance of an offer was within the spirit of the statutory scheme’s intention to curtail proceedings.
Ten years after its introduction, this Scottish decision illustrates that the offer of amends defence still throws up problems of statutory interpretation. In this case the offer of amends was not accepted for some 18 months although the judge suggested that it might be appropriate to penalise in costs claimants who took such a dilatory course. This decision is certainly at odds with the focus in England and Wales on providing a quick cheap exit from proceedings for defendants ready to apologise and pay compensation.
Haper Macleod LLP; Balfour & Manson
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