Full case report
SD Marine Ltd v Powell
Reference  EWHC 3095 (QB)
Court Queen's Bench Division
Judge Eady J
Date of Judgment 6 Dec 2006
Defamation – Libel – Offer of amends – Offer and acceptance – Whether offer of amends validly made and accepted – s.2 Defamation Act 1996
D purchased a boat through C, a broker. C agreed to carry out various works on the boat prior to delivery but, D claims, did not do so satisfactorily.
D made 2 postings on a website messageboard about his experience of C, headed “SD Marine – Honest Brokers or back street cowboys?”. C’s solicitors contacted him and complained that he had libelled C. D, having briefly consulted a lawyer but acting without legal representation, stated in an email that he made “an offer to make amends” under s.2 of the Defamation Act 1996, but went on to state that his offer was only to make a specified apology. It was not clear to which words or posting this offer related. C requested an offer for damages and confirmation that D would pay its costs. D replied that he did not intend to pay C damages or costs. He also stated that he had received poor service from C.
Three days later, C purported to accept D’s ‘offer of amends’.
C sought a ruling that an offer of amends had been made and accepted.
(1) Whether, applying ordinary contractual principles, an offer of amends had been made and accepted;
(2) Whether s.2(3)(c) required an offer of amends to state whether it was a qualified offer.
Finding that there had been no offer of amends:
(1) There had not been an offer of amends within the meaning of the 1996 Act. Any reasonable onlooker would have recognised D’s lack of understanding of the offer of amends regime (which was not surprising as he was a lay person). C’s solicitor must have known that D was not intending to commit himself to any binding agreement, as he would have if he was making an offer of amends. The offer appeared only to relate to the heading of the first posting, and so did not relate to the “statement complained of” and therefore did not fall within s.2(4)(a). D’s insistence that the allegations were true and refusal to pay C’s costs were not consistent with his having made an offer of amends.
(2) That the offer did not state whether it was a qualified offer would not have prevented it from being an offer of amends. Parliament cannot have intended that every unqualified offer must state that it is not a qualified offer.
The offer of amends regime provides a manner by which defamation proceedings can be compromised without the need for trial. Agreement is necessary to enter into the regime. Here, applying ordinary contractual principles, there had been no offer and acceptance. The judgment makes clear that accepting the falsity of the words complained of, and offering to pay the claimant’s reasonable costs, are essential features of an offer of amends. The claim was ordered to continue as if it had not been issued under Part 8, with a stay for mediation or settlement negotiations.
Payne Marsh Stillwell for the Claimant; Chauncy & Co for the Defendant
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.