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Undre & Anor v The London Borough of Harrow [2016]

November 16, 2016

We first reported on the case of  this case of Undre & Anor v The London Borough of Harrow [2016] EWHC 2761 (QB) (03 November 2016), which is within our News Section, on May 2nd this year. The matter returned to the High Court, before Sir David Eady, for him to assess compensation since the parties had not been able to come to an agreement following an Offer of Amends, made and accepted on the 19th May 2015, within the provisions of ss.2 to 4 of the Defamation Act 1996.  He explained that in order to make an assessment he would have to follow the process for awarding libel damages to show vindication for hurt feelings and injury to reputation.

Sir David Eady considered that in view of the background to the case it would not be straightforward and, that the majority of the distress and harm to reputation were the result of the publicity given to the charges and convictions. He observed that the court had to choose an award

“which is confined to the “marginal” damage; that is to say, any harm caused specifically by the words complained of”

He said he would examine the matter upon the basis “that the words complained of have caused serious harm”.  He said he could not follow paragraph 66 of Justice Warby’s Judgment.  He considered that if he took that perspective he would not be following the statutory requirements of the Offer of Amends. He observed that in this matter he has

“to calculate a sum for a claimant who has been convicted of a number of offences under the animal welfare legislation and subjected to the criticisms to be found in the District Judge’s written decision”.

He considered that he had to take into account the wide republication of the words, in print and online, which had exacerbated the original publication and, that he should concentrate on the republications and the marginal allegations.

He referred to the Offer of Amends where he observed that the case should have been, in effect, settled and, that if the parties could not agree on matters such as the amount of compensation then the court could assist, under s.3(5) of the 1996 Defamation Act.

He continued that the court would take into account what steps had been taken and what is not agreed as to

“the suitability of the correction, the sufficiency of the apology and whether the manner of their publication was reasonable, and may reduce or increase the amount of compensation accordingly”.

He commented that it is usual for the court to find a figure that would demonstrate fair compensation for the Claimant and, in accordance with the Offer of Amends procedure, allow a discount on the basic amount. He referred to the case of Milne v Express Newspapers Ltd (2003). If an early offer is made and accepted with an agreed apology published, there would be considerable mitigation with the compensation sum being reduced. He noted that this could be somewhere between 25% and 50% dependent upon the conduct of the Defendant and how promptly the offer is made, the main purpose being to encourage the use of the Amends procedure with prompt vindication for the Claimant.

He considered the scale of the republications and the period of time they were available. He started with a figure of £12,000 after taking into account the Offer of Amends made in April 2015, within three months of the claim and, the half-hearted attempts made over the apology wording.  He allowed a discount of 25% making a final compensation figure of £9,000.