Offer of Amends
Sections 2 to 4 of the Defamation Act 1996, the offer to make amends procedure enables the defendant, who has made an honest mistake or for whatever other reason is unable or unwilling to defend a claim, to put their hands up at an early stage and admit liability.
It doesn’t entitle the defendant to walk away because it must follow the procedure, that is:
- Set out the defamatory meaning in relation to which the offer is made;
- Agree a correction and apologise;
- Agree to pay damages (if any) and costs.
The procedure is only available prior to service of the defence. The offer should be accepted or rejected within a reasonable time.
However, if an offer to make amends is not accepted, it will be a complete defence to the trial of your claim unless the claimant can show that the defendant published the article maliciously.
It is not enough that the defendant had been careless, or made the wrong decision, or the wrong interpretation of the information.
If the offer is accepted in principle, the precise terms of the apology can be agreed, and the amount of the costs and damages are then negotiated.
If an agreement cannot be reached, the defendant may publish a unilateral apology and the court can be asked to decide the financial issues between the parties. If the parties cannot agree a settlement, then the judge will decide at a hearing the amount of damages to be recovered.
The judge will make the usual assessment of damages i.e. calculate a figure. The basis of calculation is normally:
- To identify a figure that should be awarded at the conclusion of a hypothetical trial in which the defendant had done nothing to aggravate or hurt the claimant’s feelings and nothing to mitigate.
- The second stage to be considered is to what extent, if at all, the figure should be discounted to give effect to those mitigating factors which is then able to take advantage.
- The assessment of damages is at the date of assessment not the date of publication. If an early offer of amends is made and accepted, then there would usually be a substantial discount.
- A discount will be given by the judge to the defendant for using the procedure by reducing the amount of damages by at the most 50% depending on the speed of the offer and the promptness of the apology.