Warren v The Random House Group Ltd (No. 1)
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR |
| Judgment Date | 16 July 2008 |
| Neutral Citation | [2008] EWCA Civ 834 |
| Docket Number | Case No: A2/2008/0010 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 July 2008 |
[2008] EWCA Civ 834
[2007] EWHC 2856, 2860, and 3062 (QB)
Sir Anthony Clarke Mr
Lord Justice May and
Lord Justice Wilson
Case No: A2/2008/0010
A2/2007/2805
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
The Hon Mr Justice Gray and the Hon Mr Justice Eady
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Desmond Browne QC and Mr Matthew Nicklin (instructed by Simons Muirhead & Burton) for the Appellant
Ms Adrienne Page QC & Mr William Bennett (instructed by Carter-Ruck) for the Respondent
Hearing dates: 9, 10 & 11 June 2008
This is the judgment of the court to which each member of the court has made a substantial contribution.
Introduction
The appellant is a well known publisher and the respondent is a well known boxing promoter. These appeals are interlocutory appeals against two decisions of Gray J and two decisions of Eady J respectively in an action in which the respondent claims damages for libel against the appellant. The respondent complains about three passages in an autobiographical book published by the appellant entitled 'Ricky Hatton: The Hitman, My Story'. Ricky Hatton is a well known boxer. The book was partly ghost written by Niall Hickman. The respondent has not joined Mr Hatton or Mr Niall as a defendant and the appellant has not joined either of them as a third party.
The three passages are in different parts of the book. The first appeal relates only to the first of those passages, which contains what Gray J described as 'the Phillips allegation'. He described the other two passages as respectively containing 'the Vilches allegation', which concerned a boxing match between Mr Hatton and Mr Vilches, and 'the lying allegation', which involved what on the respondent's case were lies he is alleged to have told in public about Mr Hatton. In the pleadings as they stand the appellant pleads justification in respect of both the Vilches allegation and the lying allegation.
By an order made on 5 December 2007 Gray J refused the appellant's application to amend the defence so as to plead justification of the Phillips allegation. The first ground of appeal in the first appeal ('the Gray appeal') is a challenge to that refusal. After the judge had indicated his intention to refuse that application, the appellant applied to amend the defence to plead what are known as Burstein particulars, after the decision of this court in Burstein v Times Newspapers Ltd [2001] 1 WLR 579. The judge granted the application in part but refused it in part. The second ground of appeal challenges that refusal. The judge gave his reasons for those decisions in two judgments handed down on 5 December 2007 ('Gray I' and 'Gray II' respectively).
The second appeal ('the Eady appeal') challenges two parts of an order made by Eady J on 20 December 2007. In one he refused to order disclosure of two contracts for reasons which he had given ex tempore on 13 December 2007 and in the other he struck out part of the plea of justification of the lying allegation.
Sir Henry Brooke granted permission to appeal in both appeals, albeit (as he put it) with the greatest reluctance. The first ground in the Gray appeal raises questions of some importance as to the circumstances in which a party can resile from an accepted offer to make amends which was made under section 2 of the Defamation Act 1996 ('the 1996 Act'). The second ground only arises if the first ground fails. We will therefore consider them in that order. We will then consider the first ground in the Eady appeal, which relates to disclosure, because it too relates to the Phillips allegation. Finally, we will consider the second ground in the Eady appeal, which relates to the plea of justification of the lying allegation.
The Phillips allegation
The Phillips allegation arises from a passage on pages 185 to 187 of the book which is too long to set out in full here. In essence it describes an incident which Mr Hatton describes as “the beginning of the end for Frank Warren and Ricky Hatton”. Mr Hatton describes how, before a fight with Vince Phillips, Mr Phillips had been “distraught”, “he was shouting out that people were trying to rip him off and that he should be getting a lot more money”. The book describes Mr Phillips' purse as a “low payment” and Mr Hatton says that he had been told by Mr Paul Speak that “before the fight, Vince had been told the purse was so low because there was no interest from American TV”. Mr Phillips is then said to have gone “bonkers” when he arrived at the arena and “found out that Showtime were showing [the] fight”. The defamatory meaning attributed to the passage complained of in the particulars of claim is as follows:
“In their natural and ordinary meaning the words complained of above meant and were understood to mean that the Claimant had dishonestly conned the boxer Vince Phillips into accepting a pitiful fee for putting his life at risk by fighting Ricky Hatton by lying to him that this was all that could be paid because American TV did not want to televise the fight”.
We should record that the contract between Mr Phillips and the respondent that Mr Phillips should fight Mr Hatton for a fee of US$ 50,000 was dated 25 January 2003 and that the fight took place at MEN Arena in Manchester in England on 5 April 2003.
Ground 1 of the Gray appeal: the accepted offer of amends
In order to put this issue in context we must explain the nature of the respondent's allegation, the offer of amends, the defence as originally pleaded, the acceptance of the offer of amends and the circumstances in which the appellant sought (and seeks now) to plead justification of the Phillips allegation. In short, the appellant wishes to rely upon the evidence of Mr Russell Sauer, a US attorney at Latham & Watkins LLP, Los Angeles, which is contained in a statement made on 1 November 2007, long after the date of the offer, namely 7 March 2007 and the date of acceptance of the offer, namely 18 April 2007, and after the date the terms of the apology were agreed, namely 1 August 2007, and the date the agreed Statement in Open Court was read, namely 4 October 200However, before considering the facts in more detail and, in order to ensure that we only focus on what is relevant, we consider first the scheme of the relevant part of the 1996 Act and the principles applicable to issues of the kind that arise here.
Offers of amends: the principles
At [10] Gray J ('the judge') described the issue of principle as being whether and, if so, in what circumstances it is open to a defendant in a libel action, whose offer of amends in respect of a defamatory imputation has been accepted by the claimant, to withdraw that offer of amends and in its place to advance a plea of justification in respect of that imputation. As the judge observed at [11], the resolution of that issue turns largely on the provisions contained in sections 2 to 4 of the 1996 Act. We note in passing that Eady J played an important part in the formation of the offer of amends scheme and its introduction into the 1996 Act. The appellant invited him to recuse himself from this part of the case and he decided to do so.
Sections 2 to 4, which came into force in 2000, provide, so far as material, as follows:
“ 2.Offer to make amends
(1) A person who has published a statement alleged to be defamatory of another may offer to make amends under this section.
(2) The offer may be in relation to the statement generally or in relation to a specific defamatory meaning which the person making the offer accepts that the statement conveys (“a qualified offer”).
(3) An offer to make amends —
(a) must be in writing,
(b) must be expressed to be an offer to make amends under section 2 of the Defamation Act 1996, and
(c) must state whether it is a qualified offer and, if so, set out the defamatory meaning in relation to which it is made.
(4) An offer to make amends under this section is an offer
(a) to make a suitable correction of the statement complained of and a sufficient apology to the aggrieved party,
(b) to publish the correction and apology in a manner that is reasonable and practicable in the circumstances, and
(c) to pay to the aggrieved party such compensation (if any), and such costs, as may be agreed or determined to be payable.
….
(5) An offer to make amends under this section may not be made by a person after serving a defence in defamation proceedings brought against him by the aggrieved party in respect of the publication in question.
(6) An offer to make amends under this section may be withdrawn before it is accepted; and a renewal of an offer which has been withdrawn shall be treated as a new offer.
3. Accepting an offer to make amends
(1) If an offer to make amends under section 2 is accepted by the aggrieved party, the following provisions apply.
(2) The party accepting the offer may not bring or continue defamation proceedings in respect of the publication concerned against the person making the offer, but he is entitled to enforce the offer to make amends, as follows.
(3) If the parties agree on the steps to be taken in fulfilment of the offer, the aggrieved party may apply to the court for an order that the other party fulfil his offer by taking the steps agreed.
(4) If the parties do not agree on the steps to be taken by way of correction, apology and publication, the party who made the offer may take such steps as he thinks appropriate, and may in...
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