Reference:  EWHC 2860 (QB)
Court: Queen's Bench Division
Judge: Gray J
Date of judgment: 5 Dec 2007
Summary: Defamation - Libel - Burstein particulars - Amendment - Aggravated damages - Offer of amends
Download: Download this judgment
Appearances: Desmond Browne CBE KC - Leading Counsel (Defendant) Adrienne Page KC - Leading Counsel (Claimant)
Instructing Solicitors: Carter-Ruck for the Claimant; Simons Muirhead and Burton for the Defendant
C brought a libel claim in respect of three allegations in the book “Ricky Hatton: The Hitman, My Story” published by D.
D sought to justify two of the allegations, but made an offer of amends in relation to the third allegation, that C had conned a boxer into accepting an unfairly low fee for a fight.
Having failed in its application to amend the Defence to substitute the offer of amends with a plea of justification, D applied to make substantial revisions and additions to the Burstein particulars. D relied on new evidence which had come to light since the offer had been made which, D contended, showed there to be more truth in the allegation than had previously been appreciated. Alternatively D submitted that the claim for aggravated damages rendered the particulars admissible. C cross-applied to strike out the original Burstein particulars.
(1) Whether the new matters sought to be relied on by D were fairly relevant to the tribunal’s assessment of the damage done to C’s reputation by the publication of the words complained of;
(2) If not, whether the proposed particulars were admissible in rebuttal of C’s claim for aggravated damages.
Refusing permission to amend:
- D was attempting to indirectly enter what was in effect a plea of justification. D was a publisher with ample resources and access to specialist advisors, and the decision to make an offer of amends was a deliberate one in circumstances where D was aware that its knowledge of the circumstances surrounding the negotiation of the fee was incomplete. Some of the proposed amendments related to a different allegation than that pleaded and if those amendments were allowed there would be a “prolonged contest” between the parties; the assessment of damages would become disproportionate if there were to be a roving commission of inquiry into highly contentious but ultimately peripheral issues. 2 amendments which were relevant to whether C had breached his moral obligations were permitted.
- The particulars of aggravation of damages did not constitute an assertion of falsity sufficient to entitle D to set up what was in effect a justification plea.
In addition to restating the principle that Burstein particulars are not an opportunity for a defendant to justify by the back door, this decision is of interest for Gray J’s analysis of what a defendant can put forward in a damages hearing following acceptance of an offer of amends. He accepted as correct C’s submission that “once an offer of amends has been accepted by a claimant and the defendant has apologised publicly for the relevant imputation, the circumstances under which it will be open to a defendant at the statutory assessment of compensation to run the case that the imputation is true will be few and far between.”