Defamation: Offer To Make Amends

What is an offer to make amends and how to make it?

An offer to make amends is a statutory mechanism provided by sections 2-4 of the Defamation Act 1996 (1996 Act) allowing a defendant to resolve a defamation claim without proceeding to a full trial. The main purpose of it is to encourage the sensible and economic compromise of defamation proceedings without the need for an expensive trial.

The defendant can admit that he/she has defamed the claimant and offer to take specific remedial action. The offer must include:-

• Making a suitable correction of the defamatory statement;
• Publishing the correction and apology in a reasonable and practicable manner; and
• Paying compensation and costs agreed or determined by the court.

The offer must be made in writing and explicitly state that it is an offer under section 2 of the 1996 Act. It can be a general offer (addressing the entire defamatory publication) or a qualified offer (limited to a particular defamatory meaning).

If the claimant accepts the offer, the case does not proceed to trial. Any unresolved issues, typically the amount of compensation, are determined by the court. When assessing compensation, the court applies the same principles as damages in defamation proceedings taking into account what is included in the offer to make amends. This often results in a substantial reduction (often up to 50%) in the compensation payable compared to what might have been awarded at trial as the defendant’s early admission and remedial actions mitigate the harm caused.

If the claimant rejects the offer, the case proceeds to trial and the defendant can rely on the offer as a defence but cannot rely on other defences. If the offer was a qualified offer, the defendant can still rely on other defences that do not concern the parts included in the qualified offer. To defeat this defence, the claimant must prove that the defendant knew or ought to have known that the defamatory statement referred to the claimant and was false and defamatory. It is not sufficient to show that the defendant was merely negligent or careless in checking the facts.

When to make an offer to make amends?

Any offer to make amends should be made before the defendant has served a Defence; the earlier the better, ideally at the pre-action correspondence stage, as it shows the defendant’s willingness to resolve the matter and can mitigate damages significantly.

When is an offer to make amends not an offer at all

In the case of SD Marine Ltd v Powell [2006] EWHC 3095 (QB), the defendant made an offer to make amends that included an offer to post a retraction and apology on the internet but had maintained the truth of the alleged libel and had refused to pay the claimant’s costs. The court did not consider that there was an unequivocal offer on the table which was capable of acceptance and therefore, there was no agreement and the statutory regime had not been triggered.