Turner v News Group Newspapers Ltd & Another

Reference: [2005] EWHC 892 (QB); [2005] EMLR 553

Court: Queen's Bench Division

Judge: Eady J

Date of judgment: 12 May 2005

Summary: Defamation - Libel - Offer of Amends - Assessment of Compensation under <A href="http://www.bailii.org/uk/legis/num_act/da199699/s3.html" target=_blank>s.3(5) Defamation Act 1996 - 'Burstein' plea - Whether mitigation or aggravation

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Appearances: Adrienne Page QC - Leading Counsel (Defendant) 

Instructing Solicitors: Farrer & Co for the Defendant

Facts

A former wife of the Claimant was featured in an article in the News of the World about ‘swinging’ and sex parties. It was said that she had been introduced to the swinging scene by her husband (who was not named but identifiable to some readers) and that their marriage broke up after he pressured her to have sex with other men. An offer of amends was made coupled with a lengthy ‘Burstein’ plea. An apology was published but compensation not agreed. At the hearing, NGN relied on a reduced ‘Burstein’ plea arguing that it went in mitigation of damages while the Claimant relied on the original ‘Burstein’ plea as well as the reduced form deployed at trial as matters aggravating the injury so as to disentitle NGN to any, let alone a ‘healthy’ discount for its offer of amends.

Issue

The appropriate compensation for the libel and whether the Defendant’s reliance on directly relevant background context under ‘Burstein’, particularly in the form notified but not deployed at the hearing, should extinguish or reduce the amount of discount ordinarily available to a defendant who makes an offer of amends.

Held

The appropriate award of compensation was £9,000 after applying a discount of 40% for the offer of amends. Reliance in preparation for a s. 3(5) hearing on material which may increase the Claimant’s hurt will not automatically be held against a defendant. At least some of the material relied on by NGN at the hearing was admissible under the ‘Burstein’ principle. It was not always necessary to establish a direct causal link between such material and the fact of publication.
As the Claimant had failed to beat a payment into court made by the Defendant for £15,000 he was ordered to pay the newspaper’s costs after that date.

Comment

This would appear to be the first case since the decision of the Court of Appeal in <A
href=”https://www.5rb.com/5rb/casereports/detail_redirect.asp?case=200″ target=_parent>Burstein v Times Newspapers Ltd where the Court has admitted and taken account of material relied on as directly relevant background context.