Ain't no doubt – an offer of amends can work

The media should be heartened by the recent damages decision in the Jimmy Nail libel action. The case concerned the offer of amends procedure which was introduced by the Defamation Act 1996.

It is intended to provide media defendants with a quick and relatively cheap exit route from what might otherwise be expensive and lengthy litigation.

In 1998 Harpers Collins published a biography of Nail by Geraint Jones called Nailed, which contained a number of defamatory allegations.

At the time, Nail was advised not to take action.

This was on the basis that to sue may be counterproductive since it might raise the profile of the allegations, and that, if left, the allegations may “die a death”.

In May 2002, the News of the World published an article entitled “Auf Wiedersehen Jimmy’s Secret Bondage Orgies”, which was to a large extent based on the content of the book.

It was, according to the defendants’ barrister, “classic tabloid fodder for which readers buy such newspapers”. Jimmy Nail issued proceedings against both publications.

The defendants made an offer of amends – thus accepting the allegations were untrue – and apologies were published.

It was left to the judge to decide the appropriate level of compensation.

The judge accepted that if media defendants are going to make an offer of amends they must “feel confident of getting a ‘healthy discount’ for adopting what is, in effect, a conciliatory process”.

He also applied the principle that the damages available to the claimant should be assessed by comparison to the awards made in personal injury cases.

He also took into account the fact that by the time the News of the World published the article, the allegations in the book had “gained currency” because of Nail’s decision not to challenge them.

The Judge awarded £7,500 in relation to the book (a relatively low award because only 100 copies had been sold within the limitation period).

His starting point in respect of the newspaper article was £45,000.

Having taken into account the “mitigating factors”, he reduced that figure by 50 per cent to £22,500. That discount appears to have been critical to the broader financial outcome of the case.

The defendants had previously made an offer of £37,500, which Mr Nail refused. His failure to beat that offer means that he has to pay the costs from then onwards.

This outcome should encourage claimants to be realistic in their claims for damages when the offer of amends procedure is used by the media.

Nick Hanbidge is an associate in Addleshaw Goddard’s media litigation team

Nick Hanbridge

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