Media law

Sorry seems to be the hardest word

John Cleese v Peter Clark, Associated Newspapers Limited (2003) LTL 11 February

In the recent case of John Cleese against the Evening Standard, the experienced libel judge Mr Justice Eady gave some useful guidance and practical suggestions in relation to the procedure of offer of amends.

He explained that he did so 'in the hope that [his suggestions] may be of assistance to other parties, who wish to achieve a fair result for their respective clients while avoiding some of the delays and expense traditionally associated with this form of litigation.'

While I was not involved personally in the case, the claimant was advised by my partner Martin Cruddace, so I declare that interest here.

The claimant took offence at an article concerning a US sitcom, which while not well received by UK critics had nonetheless resulted in glowing reviews for Mr Cleese in relation to his small role.

Mr Cleese claimed the Evening Standard article suggested that the American nation had turned on him, that he had faced humiliation as a result and that, according to the article, this was deserved because of his arrogance and presumption.

He alleged that there were numerous falsities within the article and that the newspaper had totally disregarded his positive reviews of which they would certainly have been aware.

Within a couple of weeks, the newspaper acknowledged that the article 'was not entirely fair' and later went on to make an offer of amends.

Under section 2 of the Defamation Act 1996, defendants may accept that they have 'got it wrong' and attempt to extricate themselves from litigation at an early stage by making an offer to apologise, pay a sum of damages and the costs of the claimant.

If the claimant accepts, the terms can be agreed or decided by the court.

If the claimant refuses, the defendant can rely on the offer as a defence at any subsequent trial.

In the best of all possible worlds, the parties would reach an amicable agreement on damages, costs and the apology.

But we do not live in the best of all possible worlds and there can be disagreement, in which case the court can be asked to decide on the damages and the costs.

But not the terms or prominence of the apology.

That is entirely within the discretion of the newspaper.

But the judge can compensate the claimant with a greater award of damages, if he accepts that any apology published was disproportionate.

In this case, the defendant published a unilateral apology, given the disagreement between the parties as to its terms and prominence.

The claimant maintained that the offer package was insufficient in light of the damage done and while he had accepted the newspaper's offer to make amends, he asked that the level of damages and costs be decided by the court.

The article was held clearly to suggest 'that a long, slow decline in [Mr Cleese's] talents and professionalism has finally ended with a bump'.

The judge noted that 'by the offer of amends, it has clearly been recognised that this is simply not true.' In light of the 'manifestly vitriolic' article, the offer made by the defendant was considered insufficient by the court.

Mr Justice Eady was reminded by counsel of talks that had taken place between him and counsel in the previous case of Fernandes v Associated Newspapers Limited (unreported) and 'off-the-cuff suggestions as to the appropriate course of action' in offer to make amends cases.

He decided to adopt them in his judgment in Cleese, 'for what they are worth', to assist parties in the future.

'It was in the contemplation of Parliament,' he said, 'and those who formulated the relevant rules, that once an offer has been validly accepted discussions should take place, on an informal basis, so as to avoid as far as possible any need to attend before the court.'

Libel is often considered a bit of a gamble.

And a gambling metaphor, which triggers mental pictures of exhausted men with rolled-up sleeves, whisky bottle on the table in a dark and smoky room, did creep into the practical suggestions made by the judge:

l A sensible course of action would be for a meeting to take place round the table, if practicable, without going straight to the court for directions as though a contested hearing were inevitable.

This should signify a spirit of compromise on both sides.

l The parties should set about identifying and resolving the issues still outstanding.

The parties - and their lawyers where they are represented - have an obligation to identify the issues promptly and with frankness.

l They should engage in a frank exchange of views, placing their cards face-up on the table.

There is no point making the other team guess at what one is after.

l They should keep no cards up their sleeves, as is a tendency when dealing with these matters through correspondence, nor obfuscate or posture, as is a tendency to do in lawyers' letters.

Clearly a proponent of the school of plain English, Mr Justice Eady remarked that 'there can be no form of human communication more stilted than letters between litigation solicitors of the type with which we are all too familiar, where endless points are scored of the we-are-surprised-to-note variety.'

l Where delay in bringing the negotiations to fruition is attributable to the complainant, this will reduce the level of compensation.

Any delay attributable to the defendant will increase the award.

These proposals appear sensible and appropriate, but they will require a certain openness of mind on the part of both parties and their legal advisers.

Cynics might argue that this may not come easily where the parties have such different agendas.

A claimant might accept the offer to mitigate the damage to his reputation and to ensure some form of compensation at an early stage; a defendant might make the offer in an attempt to save the cost of a full libel trial.

But if both parties are prepared to play the game, they may find that they both come out winners.

By Amber Melville-Brown, Schillings, London