Warren v The Random House Group Ltd

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. D relied on and pleaded Burstein particulars in relation to this allegation. The offer of amends was accepted and an agreed statement in open court was made.

D subsequently obtained additional evidence and sought to substitute the offer of amends with a plea of justification. D contended that:

(1) s.2(2) Defamation Act 1996 did not entitle a defendant to make an offer of amends in respect of a selected passage of a book where the book contained several separate defamatory imputations; and

(2) disabling a defendant from defending itself in relation to a claim in which an offer of amends had been accepted was an interference with the D’s Arts 10 and 6 ECHR rights.

Whether and in what circumstances a defendant in a libel action can withdraw an offer of amends which has been accepted by the claimant and substitute a plea of justification.

Dismissing the application:

1. The term “statement” in s.2 (2) referred to a particular statement rather than to the whole publication. Ds can make a qualified offer by selecting a particular statement from a publication. C had a statutory entitlement to enforce the offer in respect of the third allegation alone without foregoing his right to bring or continue proceedings in respect of the remaining allegations.
2. The “exit route” provided by ss.2-4 of the Act promoted rather than interfered with Ds’ Art 10 rights, and any interference was justified: Cs required an expeditious and economical way of achieving vindication. D had, on advice, entered a binding and legally enforceable contract which had been partly performed.
3. There was no interference with D’s Art 6 right: D had elected to make the offer and had thus unequivocally and voluntarily waived its Art 6 rights of access to the court.
4. Discretion to allow the amendment would have been refused.

An important case, confirming that the offer of amends procedure set out in the Act is compatible with Convention rights. It remains to be seen whether, in different circumstances, discovery of a “smoking gun” after an offer had been accepted would entitle a defendant to resile from the agreement.