Nail v News Group Newspapers Ltd & Others (CA)
Reference:  EWCA Civ 1708;  1 All ER 1040;  EMLR 257; The Times 6 Jan 2005; The Independent 14 Jan 2005
Court: Court of Appeal (Civil Division)
Judge: May, Auld & Gage LJJ
Date of judgment: 20 Dec 2004
Summary: Defamation - libel - offer of amends - damages - principles of assessment of compensation by judge under s.3(5) Defamation Act 1996 - extent to which the offer of amends mitigates damages
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Adrienne Page KC - Leading Counsel (Respondent)
Instructing Solicitors: Schillings for the Appellant. Farrer & Co. for the Respondents
In 1998 Harper Collins published a biography of the Claimant entitled “Nailed”. He decided not to sue at that time, on legal advice. In 2002 extracts from “Nailed” were published in the News of the World and the book attracted new consumer interest, selling about a hundred copies. The Claimant sued the News of the World for the offending article and, separately, Harper Collins for the editions of the book sold in 2002. Eady J. awarded the Claimant £7,500 for the book and £22,500 for the article. The Claimant appealed.
Had Eady J applied a wrong principle that media defendants who made offers of amends were entitled to be “rewarded” with a “healthy discount” in the compensation for their very willingness to use the statutory procedure? Did he discount the compensation too much and make awards that were too low?
Appeal dismissed. s.3(5) of the 1996 Act requires the judge to determine compensation on the usual principles applied in defamation cases. He is not required to speculate what a putative jury might award. If an early unqualified offer to make amends is made and accepted and an agreed apology published, this is bound to be substantial mitigation. The judge’s use of the word “rewarded” was superficially open to misinterpretation but there was no distinction between the inevitable mitigation of using the procedure and a “reward” for using it, provided the mitigating factors are not brought into play twice. The Judge had not applied a double discount. He had made his assessments on conventional principles and in amounts that were not so low to justify interference by the Court of Appeal.
This judgment confirms that compensation in offer of amends cases is to be determined on the same principles as cases that proceed to assessment by the conventional route. The making of an offer of amends will usually amount to substantial mitigation, but there is no standard discount to be applied as each case will turn on its facts. This decision should lay to rest comments that there is a new lower scale of compensation applicable in offer of amends cases.