Turner v News Group Newspapers Ltd (CA)

Reference: [2006] EWCA Civ 540; [2006] 1 WLR 3469; [2006] 4 All ER 613; [2006] EMLR 703; The Independent, 23 May 2006

Court: Court of Appeal

Judge: Pill, Keene & Moses LJJ

Date of judgment: 16 May 2006

Summary: Defamation - Libel - Offer of amends - Assessment of compensation under s.3(5) Defamation Act 1996 - Burstein plea - 'Directly relevant background context' - Mitigation of damages

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Appearances: Desmond Browne QC - Leading Counsel (Appellant)  Adrienne Page QC - Leading Counsel (Respondent) 

Instructing Solicitors: Campbell Hooper for the Claimant; Farrer & Co for the Defendant

Facts

A former wife of C 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 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 C 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. Eady J held that at least some of the material relied on by NGN at the hearing was admissible under the Burstein principle, and awarded C £9,000, after applying a discount of 40% for the offer of amends.

Issue

(1) Could Burstein be reconciled with Speidel v Plato Films?
(2) What was the correct scope of the Burstein decision;
(3) Whether and if so how far Burstein should apply in offer of amends cases;
(4) Whether the Judge made errors in admitting the Burstein evidence and in his approach to the assessment

Held

Dismissing the appeal:
(1) Burstein is not irreconcilable with Speidel, but a development of the common law binding on the Court of Appeal.
(2) To qualify under Burstein the evidence must be so clearly relevant to the subject-matter of the libel or to the claimant’s reputation or sensitivity in that part of his life that, if excluded, there would be a real risk of the damages being assessed on a false basis.
(3) Burstein applies in the offer of amends procedure, just as in defamation litigation.
(4) The Judge made no error and his award was upheld.

Comment

The decision in Turner will be welcomed especially by newspaper defendants as an affirmation and clarification of the Burstein principle. Above all, it will lay to rest the fear that, by making an offer of amends, compensation will be assessed on a false basis because a defendant will be unable to rely in mitigation of compensation on material that would have been pleadable if the case was defended. As Keene LJ said at [59], “A Defendant is entitled to fight his corner on an assessment of statutory compensation, just as he is over the question of damages in litigation.”