KC v Mgn Ltd
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice of England and Wales |
| Judgment Date | 22 January 2013 |
| Neutral Citation | [2013] EWCA Civ 3 |
| Docket Number | Case No: A2/2012/0767 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 January 2013 |
[2013] EWCA Civ 3
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE BEAN
HQ11DQ2225
Royal Courts of Justice
Strand., London, WC2A 2LL
The Lord Chief Justice of England and Wales
Lord Neuberger
and
Mr Justice Eady
Case No: A2/2012/0767
James Dingemans QC and Julien Foster (instructed by YVA Solicitors) for the Claimant
Desmond Browne QC and Yuli Takatsuki (instructed by MGN Legal Department) for the Defendant
On 1 November 2012 the appeal by the defendant (as we shall describe the defendant) against Bean J's assessment of damages was successful. In short, the starting point in the assessment taken by him was reduced from £150,000 to £100,000 while the 50% discount to allow for the defendant' statutory offer of amends in accordance with s.2–4 of the Defamation Act 1996 was unaltered. The award of damages to the claimant (as we shall describe the respondent) was reduced to £50,000. The issue which now arises is costs, and this is the judgment of the court.
Notwithstanding various skirmishes, and assertions and counter-assertions between the solicitors for the parties, this litigation was concerned with the level of damages appropriate to be paid to the claimant following the publication of a seriously defamatory article in a newspaper for which a full apology, accompanied by an offer of amends, was made at an early stage.
We have been supplied with a bundle of letters and emails and attendance notes passing between the parties after the offer of amends made on 12 November 2010. We do not propose to refer to each of these documents, nor to distinguish between those which, at the time they were written, were "open", or written "without prejudice" save as to costs.
What is entirely clear from this bundle is that the defendant, having offered on that date to pay "a proper and suitable sum by way of damages", and costs, made a first offer of £35,000 for damages, together with reasonable costs. This was rapidly followed by a letter dated 15 December with an offer of £50,000, to reflect the 50% discount, which was open for 21 days, together with payment of the claimant's reasonable legal costs, an offer contained in a separate letter. The letter continued; "in the event that our offer of damages is rejected whether explicitly or by conduct, and your client fails to receive in excess of this sum from the court then we will ask the court to order your client to pay our costs from a reasonable period after our offer". The issue of proceedings would be tantamount to a rejection of this offer.
On the following day this offer was rejected in a telephone conversation. A figure of £80,000 was referred to in conversation, as a figure which the claimant might be "persuaded" to accept, but no alternative figure was advanced in writing. On 22 November and 1 December 2010 the defendant' solicitors sought confirmation or clarity about the level of damages sought by the claimant in the light of the published apology and the offer of amends. By letter dated 5 January 2011, the level of the claimant's costs was quantified at a figure in excess of £25,000. The immediate response, by letter dated 6 January, was a detailed complaint about this level of costs and an all-in offer of damages and costs in the sum of £50,000, but the value of the claims for damages was not addressed. In effect this represented a return to the offer of £35,000 for damages, which unsurprisingly in view of the earlier offer, was eventually rejected.
By letter dated 1 February 2011 the defendant' solicitors returned to the open offer dated 15 December 2010. "If you are not prepared to engage with the Offer of Amends regime and tell us what your client wants on an open basis and/or make us an offer in a form capable of acceptance by us then unfortunately you should go ahead and prepare for an assessment of compensation hearing under s.3 of the Defamation Act 1996. It would be unfortunate for this step to have to be taken with the attendant delay and costs consequences however it has become clear that you do not intend to try and resolve this matter". This led to a response dated 15 February 2011. The solicitors for the claimant stated that he was prepared to settle his claim for damages for £80,000, together with costs to be assessed if not agreed. Thereafter the parties met to see whether the appropriate level of damages could be agreed. The meeting was unsuccessful. Following that meeting, on 21 March 2011 the defendant' solicitors made alternative offers of either £50,000 damages together with reasonable...
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