Jimmy Nail, Jimmy Nail v News Group Newspapers Ltd, Rebekah Wade, Jules Stenson, Geraint Jones, Harper Collins Publications Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice May,Lord Justice Gage,Lord Justice Auld |
| Judgment Date | 20 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1708 |
| Docket Number | Case No: A2/2004/0916 HQ03X01413 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2004 |
[2004] EWCA Civ 1708
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE EADY
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Auld
The Right Honourable Lord Justice May and
The Right Honourable Lord Justice Gage
Case No: A2/2004/0916
HQ03X00727
HQ03X01413
Hugh Tomlinson QC and William Bennett (instructed by Schillings) for the Claimant
Adrienne Page QC (instructed by Farrer & Co) for the Defendants
Lord Justice May
Introduction
Sections 2 to 4 of the Defamation Act 1996 enable a person who has published an allegedly defamatory statement to offer to make amends. If he does so, there are certain statutory consequences. One of these is that, if the offer is accepted by the aggrieved party but the parties do not agree the amount to be paid by way of compensation, the compensation is determined by a judge, not a jury, "on the same principles as damages in defamation proceedings" – section 3(5) of the 1996 Act.
On 26 th March 2004, Eady J determined the compensation to be paid by each of two sets of defendants to Jimmy Nail, the claimant. Mr Nail says that the compensation payments were much too low. He says that the judge misapplied section 3(5). The core issue in this appeal concerns the extent to which the making of the offer of amends should go in mitigation of the amount of his compensation.
Sections 2–4 of the Defamation Act 1996
This is only the second appeal to this court concerning statutory offers to make amends. The first was Milne v Express Newspapers plc [2004] EWCA Civ. 664; [2004] EMLR 24 page 461, where the claimant, who had not accepted an offer to make amends, wanted to proceed to a jury trial. To be permitted to do so, he had to seek to establish that the defendants "knew or had reason to believe that the statement complained of … was both false and defamatory of [him]" – see section 4(3) of the 1996 Act. This court, in upholding the judge, construed these words as importing the concept of recklessness as discussed by Lord Diplock in Horrocks v Lowe [1975] AC 135 at 149–150. The claimant was unable to plead facts which were capable of amounting to recklessness. His claim failed, because the fact of an offer to make amends is a defence to defamation proceedings, unless the claimant can successfully rely on section 4(3).
The judgment of this court in Milne recounts in paragraphs 17 to 26 the statutory background to sections 2 to 4 of the 1996 Act. It is not necessary to repeat that material in this judgment. In short, section 4 of the Defamation Act 1952 had proved ineffective. The July 1991 report of Sir Brian Neill's Committee on Practice and Procedure in Defamation, of which Eady J, then in practice at the Bar, was a member, had recommended legislation to encourage sensible, economic compromise of defamation claims.
This court in Milne gave an account of sections 2 and 3 of the 1996 Act in paragraphs 13 and 14 of the judgment as follows:
"13 Section 2 of the 1996 Act provides that a person who has published a statement alleged to be defamatory may offer to make amends under the section. The offer may be in relation to the defamatory statement generally or in relation to a specific defamatory meaning which the person making the offer accepts that the statement conveys. The defendants' offer in the present case was unqualified. An offer to make amends is an offer to make and publish a suitable correction and a sufficient apology, and to pay such compensation and costs as may be agreed or determined. An offer to make amends may not be made after a person has served a defence in defamation proceedings brought against him in respect of the publication in question.
14 Section 3 provides that, if an offer to make amends is accepted, the party accepting the offer may not bring or continue defamation proceedings against the person making the offer in respect of the publication, but he is entitled to enforce the offer. The parties can agree the steps to be taken. If they do not agree, the party who made the offer may take such steps as he thinks appropriate. He may make the correction and apology by a statement in open court in terms approved by the court. He may give an undertaking to the court as to the manner of publication. If the parties do not agree the amount to be paid by way of compensation, it is to be determined by the court on the same principles as damages in defamation proceedings. Proceedings under the section are to be heard and determined without a jury. The court is to take account of any steps taken in fulfilment of the offer, including the suitability of the correction, the sufficiency of the apology and whether the manner of their publication was reasonable in the circumstances: and the court may reduce or increase the amount of compensation accordingly. Thus, if in an ordinary case a claimant in defamation proceedings accepts an offer to make amends, he becomes entitled either by agreement or by determination of the court to full proper compensation for the defamatory publication. The defendant has capitulated at an early stage and before serving a defence on all issues except the amount of damages, if this is not agreed. The claimant can bring or continue the proceedings to determine the compensation. It is to be expected that most sensible claimants will accept unqualified offers to make amends. The main purpose of the statutory provisions is plain. It is to encourage the sensible compromise of defamation proceedings without the need for an expensive jury trial."
The critical verbatim words in section 3(5) are:
"If the parties do not agree the amount to be paid by way of compensation, it shall be determined by the court on the same principles as damages in defamation proceedings.
The court shall take account of any steps taken in fulfilment of the offer and (so far as not agreed between the parties) of the suitability of the correction, the sufficiency of the apology and whether the manner of their publication was reasonable in the circumstances, and may reduce or increase the amount of compensation accordingly."
The Neill Committee had expressed the view that a judge fixing compensation under their proposals would clearly take into account such mitigating factors as the defendant's willingness to restore the plaintiff's reputation fully and promptly. They considered that their proposals would achieve a relatively quick and cheap vindication and discourage unreasonably high demands for damages (see Milne paragraph 22). This court said at paragraph 45:
"We see the main parliamentary intention as promoting machinery to enable defamation proceedings to be compromised at an early stage without the expense of a jury trial. If there is no issue as to the defamatory meaning of the statement published, an offer to make amends tenders to the claimant appropriate vindication and proper compensation. The defendant does not get out cheaply. If compensation is not agreed, it is determined by the court on the same principles as damages in defamation proceedings. As Eady J said in Abu v MGN Ltd [2003] 1 WLR 2001, the procedure is not to be confused with summary disposal under sections ss. 8–10 of the 1996 Act. There is no artificial cap on the level of compensation."
Eady J had gone on to say in Abu v MGN that there should be nothing in any sense "rough and ready" about the assessment of the claimant's reputation under the offer of amends procedure. It would clearly be inappropriate to deprive either party of a proper analysis of its case. In response to a submission that parliament cannot have intended that the defence based on a rejected offer of amends should be unanswerable, and, that if it were, the statutory mechanism would promote irresponsible journalism, this court said at paragraph 46:
"It is obviously correct that parliament intended to and did shift the balance in favour of the making of offers to make amends. This is not perhaps to say that the balance is shifted in favour of defendants, since claimants also benefit. … We do not consider that a mechanism which offers appropriate vindication and proper compensation is a recipe for irresponsible journalism. Further, the legislation does not apply only to journalists."
The two actions
In the present case, Eady J was concerned with two actions. The first in time was a claim by Mr Jimmy Nail against News Group Newspapers Limited, the publishers of the News of the World, complaining of an article published on 19 th May 2002 on the newspaper's centre page under the heading "Auf Wiedersehen Jimmy's Secret Bondage Orgies". The former editor, Rebekah Wade, and the journalist who wrote the stories, Jules Stenson, were also joined as defendants. The second action was against Geraint Jones, the author of a book called Nailed: The Biography of Jimmy Nail. This was published towards the end of 1998, but the claim form in this action was not issued until 6 th May 2003, nor served until 11 th August 2003. The publishers of the book, Harper Collins Publishers Limited, were also joined as defendants.
In each action, there were offers to make amends, which were accepted. After negotiation, agreed apologies were published. The judge was concerned only with assessing the appropriate compensation to be paid under section 3(5) of the 1996 Act.
Mr Nail is a well known...
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