West Law Report

WARREN v RANDOM HOUSE GROUP LTD

Posted in Defamation Act, Libel, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 12:01am GMT 03/01/2008

Queen’s Bench Division
Gray J
December 5, 2007

Libel – Offer of amends – Permission to amend – Effect on assessment of damages – Burstein particulars – s. 2 Defamation Act 1996 – s. 3(6) Defamation Act 1996

FACTS

The defendant publisher (R) applied for permission to amend its defence in libel proceedings with the claimant boxing promoter (W). W applied to strike out certain particulars of R’s defence.

R had published a book that contained three alleged defamatory passages about W. With regards to the first of the passages, W claimed that the natural and ordinary meaning of it was that W had dishonestly conned a boxer into accepting a pitiful fee for a fight by lying to him about how much he could be paid. Another passage related to a purported failure by W to vary the agreement with the boxer when it emerged that an American company was to televise the fight on American television.

R had advanced pleas of justification in respect of that passage and made an offer of amends pursuant to the Defamation Act 1996 s. 2. W had accepted that offer. Thereafter R was refused permission to substitute a plea of justification for its offer of amends. R subsequently sought to amend its defence so as to adduce evidence of various particulars of purported fact on the basis that they were directly relevant to the contextual background to the publication complained of. In particular R contended that the amendments in question were justified in accordance with the principle in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 as the offer of amends had been made by it on a mistaken basis and it learned, after the making of the offer of amends, that the allegation complained of by W was true.

ISSUE

Whether the amendments in question were justified in accordance with the principle in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 as the offer of amends had been made by it on a mistaken basis and it learned, after the making of the offer of amends, that the allegation complained of by W was true.

HELD (judgment accordingly)

(1) It was impossible to lay down rules as to what was to be permitted to be adduced as being directly relevant to the contextual background to a publication complained of, Burstein applied. It was for a judge to decide in the exercise of his case management powers on a case by case basis.

In performing that function a judge had to have regard

  1. to the need to be fair to both parties,
  2. to the need to ensure that damages were not assessed on a false basis and
  3. to the overriding requirement of proportionality.

In the ordinary way Burstein particulars would be relied upon by a defendant who was contesting liability and seeking to mitigate the damages payable to a claimant, as such it was important not to lose sight of the fact that in the instant case R had offered amends to W and had apologised to him in respect of the allegation complained of. Accordingly there was no contest as to liability in respect of that allegation.

That did not of itself mean that R was debarred from relying on Burstein particulars for the purpose of the judicial assessment of damages under s. 3(6) of the Act but the latitude to be afforded to R in regard to the Burstein particulars could not be wider on such an assessment than it would have been if R was seeking to reduce damages in the context of a denial of liability. The amendments sought by R in so far as they related to an assertion that W had allegedly made illegitimate and dishonest deductions from the boxer’s purse were impermissible and fell to be struck out. The admission of such allegations amounted to an attempt by an indirect route to enter what in effect was a plea of justification in a case where R had elected to follow the offers of amends and had participated in a public apology to W. Moreover to permit those amendments would result in a prolonged contest as to the rights and wrongs of W’s actions that would be disproportionate to a proper assessment of damages.

(2) However, it was appropriate to allow R to amend its defence in so far as those amendments related to a purported failure by W to vary the agreement with the boxer when it emerged that an American company was to televise the fight on American television. If damages were to be assessed in ignorance of the fact that the American company had acquired the rights to televise the fight after the boxer’s purse had been agreed the judge carrying out that assessment would be doing so without the necessary facts and there was a risk of damages being assessed on a false basis.

(3) J’s claim for false imprisonment was in tort. Accordingly, the Private International Law (Miscellaneous Provisions) Act 1995 s. 11(1) rendered Iraqi law the applicable law. There were insufficient grounds for displacing, under s. 12 of the Act, Iraqi law as the applicable law.

Adrienne Page QC and William Bennett (instructed by Carter-Ruck) for the claimant. Desmond Browne QC and Matthew Nicklin (instructed by Simons Muirhead & Burton) for the defendant.

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