Warren v The Random House Group Ltd (Nos.1-3) (CA)
Reference:  EWCA Civ 834;  QB 600;  EMLR 1
Court: Court of Appeal
Judge: Sir Anthony Clarke MR, May & Wilson LJJ
Date of judgment: 16 Jul 2008
Summary: Defamation – Libel – Offer of Amends – Defamation Act 1996 – Justification – Articles 6 & 10 ECHR - Burstein particulars – Aggravated damages – Disclosure – Lucas Box meaning - Polly Peck – Severable and distinct charges
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Desmond Browne QC - Leading Counsel (Defendant)
Adrienne Page QC - Leading Counsel (Claimant)
Instructing Solicitors: Carter-Ruck for the Claimant; Simons Muirhead & Burton for the Defendant
C brought a libel claim complaint of three separate allegations in the book “Ricky Hatton: The Hitman, My Story”. D made an offer of amends, which was accepted, in relation to one of the three meanings and pleaded justification in relation to the other two. D relied on Burstein particulars in relation to the offer of amends allegation. After the offer of amends was accepted, D obtained additional evidence upon which it wanted to base a plea of justification and sought to resile from the offer of amends to do so. Gray J refused the application and struck out a number of the Burstein particulars. Subsequently, Eady J struck out one of D’s meanings as being separate and distinct applying Polly-Peck. He also refused specific disclosure of a fight contract. D appealed.
(1) Whether and in what circumstances a defendant in a libel action can withdraw an offer of amends which has been accepted and substitute a plea of justification.
(2) Whether D could prove the truth of the disputed matters in rebuttal of the aggravated damages plea
(3) Whether the Burstein particulars which had been disallowed were fairly relevant to the tribunal’s assessment of the damage done to C’s reputation.
(4) Whether it was permissible for D to rely on a Lucas Box meaning relying on a wider meaning than that complained of by C.
(5) Whether the contract should be disclosed.
(1) D would not be permitted to resile from its offer of amends. Special circumstances had to be shown before a party who had made an offer of amends that had been accepted could resile from it. In the instant case, D could not demonstrate special circumstances. The Defendant had consciously waived its Article 6 and 10 rights by making the offer of amends and had done so on an “informed” basis.
(2) D was not allowed to prove the truth of the disputed matters in rebuttal of the aggravated damages plea.
(3) The Judge had been right to limit the ambit of the Burstein plea. The matters raised by D were too far removed from the matters raised in the libel to be admissible in mitigation.
(4) The allegation complained of by C was separate and distinct from the material about a disputed contract and the Judge had been right to rule out that part of the case.
(5) The contract should not be disclosed.
This is the first decision analysing the circumstances in which an accepted offer of amends can be resiled from in favour of a substantive defence. The Court of Appeal preferred the view that there was no contract underlying an accepted offer of amends, but that the policy reasons for keeping people to the bargains they had made meant that special circumstances had to be shown before the Court would permit any escape from the statutory assessment of compensation.