Express Newspapers ordered to publish agreed apology

Indemnity costs ordered

Express Newspapers has been ordered by the High Court to publish the apology that it had previously agreed to pursuant to a settlement under CPR Part 36. It was also ordered to pay the claimant’s costs of the application on the indemnity basis.

James Ellison sued the Express in 2016 over an article that suggested that he had helped start fires at the refugee camp at Calais. An early stage of the proceedings the Express agreed to compromise the matter on the basis that it had imputed that the claimant had committed arson on foreign soil. It agreed to pay damages and costs and to apologise.

After some six months had elapsed without the terms being carried out, the claimant commenced Part 8 proceedings to enforce the compromise. Those proceedings were in turn settled by an agreement under Part 36, which included the payment of substantial damages and costs, and a published apology.

However, the apology that appeared in the Express was substantially different from the version that had been agreed.

Among other differences, the published apology made no reference to the seriousness of the libel, or to the fact that the Express had agreed to pay Mr Ellison substantial damages and costs.

Moreover, the apology was discontinuous — it was divided in two by a substantial ‘slab’ made up of Express trademarks.

Further correspondence did not resolve the issue and Mr Ellison brought an application seeking orders for the enforcement of the agreement by way of publication of the apology in the terms agreed.

Before Master Davison the Express admitted that the apology was different, but argued that what had been published was not different in substance from that required by the settlement terms.

Master Davison disagreed, and ordered the Express to publish the agreed version of the apology, without discontinuities, within seven days.

When the Master made clear his disagreement, the Express asked for an adjournment for the purpose of arguing that article 10 of the ECHR constituted a defence to the application.

The Master refused that application.

The Master further ordered that the costs of the application be paid by the Express on the indemnity basis.

The Express sought permission to appeal, which was refused.

The Master also refused an application to extend the time for the making of a further application for permission.

5RB‘s Adam Wolanski had conduct of the matter for the claimant from its inception, and brought the matter to its successful settlement. 5RB‘s Tom Blackburn appeared for the claimant on the application for the enforcement of the order.