England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Tugendhat
[2014] EWHC 1170 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/05/2015

Lady Justice Sharp:

1. This is an appeal by the defendant, Associated Newspapers Limited, against an order made by Tugendhat J on 15 April 2014 in which he gave the claimant in this action, Mrs Joanne Murray, better known as the author, JK Rowling, permission to read a unilateral statement in open court, in the terms of the draft she had submitted to the court for approval. That followed her acceptance of an offer of amends made by the defendant under section 2 of the Defamation Act 1996 (the 1996 Act), and the settlement of her claim for libel against the defendant.
2. CPR Part 53 PD para 6 applies where a party wishes to accept a Part 36 offer or other offer of settlement in relation to a claim for libel, slander, malicious falsehood or misuse of private or confidential information. In such a case the party accepting the offer may apply to make a statement in open court, which must be submitted for the approval of the court: see CPR Part 53 PD 6.1 and 6.3.
3. The offer of amends regime is contained in sections 2-4 of the 1996 Act, and an extract from those provisions is set out at the end of this judgment: see further, Duncan and Neill on Defamation, 4^th ed, chapter 19. In summary, an offer of amends may be made in respect of a statement which is alleged to be defamatory, before or after the service of proceedings, though it must be made before service of the defence. A person making the offer (the defendant or potential defendant) is required to specify whether the offer is qualified or unqualified. If the offer is unqualified it means the person making the offer accepts that the article bears the meaning attributed to it by the person to whom the offer was made, and that it was defamatory (of the claimant) in that meaning: see section 2(2) of the 1996 Act and Nail v News Group Newspapers Ltd [2004] EWCA Civ 1708, [2005] 1 All ER 1040. An offer must be to make a "suitable correction" and a "sufficient apology" published in a "reasonable and practicable manner", and "to pay such compensation (if any) and such costs as may be agreed or determined". The statutory procedure does not require the person making the offer to specify the terms or positioning of any correction or apology so offered, or the amount of compensation to be paid. Unspecific though an offer of amends may be in these respects, there is a powerful incentive for a claimant to accept such an offer, since if the offer is not accepted (and not withdrawn) the offer is a complete defence (or in the case of a qualified offer, a complete defence in respect of the meaning to which the offer relates) unless a claimant can show that the party making the offer acted in bad faith.
4. If the offer is accepted, a claimant cannot bring or continue defamation proceedings in respect of the publication concerned against the person making the offer, but can, if terms are agreed, obtain an order that the terms are fulfilled. If the parties cannot agree on compensation after the offer is accepted, then the level of compensation is determined by a judge, applying the same principles as are applied to the assessment of damages in defamation proceedings. However the position is different if the parties cannot agree on the terms of the apology or correction. In that case, the matter is not resolved by the court. The person making the offer is free to publish what it wishes to about the settlement; and can also apply to make a statement in open court approved by the court.
5. The statutory provisions are silent about the right of a claimant to make a statement in open court, after accepting an offer of amends. But it is open to such a claimant to apply to the court for permission to read a statement in open court in accordance with the provisions of CPR Part 53, PD 6.3: see Winslet v Associated Newspapers Ltd [2009] EWHC 2735 (QB); [2010] EMLR 11 where the court rejected the defendant's contention that it is not open to a claimant to make a unilateral statement in open court where the offer of amends regime is engaged.
6. The claimant's right to make a unilateral statement in open court in this case is not in dispute. The defendant's contention on this appeal is a narrow one: it is that the judge was wrong to give his approval to a statement which went outside the claimant's pleaded case in two respects: first, by mischaracterising the meaning complained of (the meaning objection); and secondly, by including matters relating to aggravation of damages which went beyond those complained of in the Particulars of Claim (the aggravated damages objection). At the invitation of the defendant we have heard argument on both points, although, shortly after permission to appeal was granted, the claimant made an open offer not to oppose the defendant's appeal in relation to the aggravated damages objection, a position she has maintained subsequently.
7. The claim in this case concerns an article (the article) published by the defendant both on its website, 'Mail Online' on the 27 September 2013 under the headline: "How JK Rowling's sob story about her past as a single mother has left the churchgoers who cared for her upset and bewildered" and in the Daily Mail on the following day, on a double page spread at pages 26 to 27 under the slightly different headline: "How JK Rowling's sob story about her single mother past surprised and confused the church members who cared for her."
8. The article was prominent and lengthy, and it is not necessary to set it out. It purported to be based on an account written by the claimant (the so-called "sob story" as both headlines described it) which had appeared the previous week on the website of Gingerbread, the single parents' charity of which the claimant is the president, where the claimant described her experiences as a single mother in Edinburgh in the 1990s. In that account the claimant referred to an incident involving a woman who had visited the church on one occasion when the claimant was working there. However, as is now not in dispute, the article alleged that in her Gingerbread account, the claimant had falsely accused her fellow churchgoers of "stigmatising her" or "cruelly taunting her". It is also not in dispute that this allegation was both untrue and defamatory of the claimant.
9. The claimant strongly objected to the content of the article and its characterisation of what she had said on the Gingerbread website. Her objections were set out in a detailed pre-action protocol letter of complaint sent by her solicitors on her behalf on 21 October 2013. The letter said, amongst other things, that the article made the false allegation that the claimant had falsely criticised the Church and its congregation for its treatment of her by suggesting that they had behaved in a "bigoted" and "unchristian" manner towards her, which had understandably left the "churchgoers who had cared for her upset and distressed." It went on to ask for the article to be taken down; and for the prompt publication of a suitable apology to be published in the Mail and online. The defendant refused to take either step. Its position was that the article was not defamatory of the claimant, and her complaint was "without merit". It subsequently rejected a proposal from the claimant's solicitors that the issue of meaning should be determined by a former High Court judge experienced in defamation claims. Further correspondence between the parties did not resolve these issues and on 10 December 2013 the claimant issued proceedings for libel.
10. The meaning attributed to the article in the Particulars of Claim was that the claimant "had given a knowingly false account of her time as a single mother in Edinburgh in which she had falsely and inexcusably accused her fellow churchgoers of behaving in a bigoted, unchristian manner towards her, of stigmatising her and cruelly taunting her for being a single mother." The Particulars of Claim also contained a claim for aggravated damages.
11. The claimant then issued an application notice for the determination of the issue of meaning. On the 21 January 2014, the last day of an extension of time before its defence was due to be served, the defendant made an offer of amends as provided for by the 1996 Act. The defendant specified that the offer was unqualified, thereby impliedly accepting that the article bore the meaning complained of, as I have said. It also offered to make a "suitable correction" and a "sufficient apology" published in a 'reasonable and practicable manner', and "to pay such compensation (if any) and such costs as may be agreed or determined". The defendant did not say what it was prepared to say in any apology, or the prominence it would accord to anything it published; nor did it say what it was prepared to pay in compensation.
12. The claimant accepted the defendant's unqualified offer of amends the day after it was made. In their letter accepting the offer, her solicitors proposed a form of wording for an apology, suggested an immediate "round table meeting" to discuss settlement of outstanding matters, but reserved the right to make a unilateral statement in open court, if matters were not agreed.
13. Without prejudice negotiations were again not fruitful as the parties were unable to agree on the wording of an apology or correction. On 26 March 2014, the claimant's solicitors therefore sent to the defendant's solicitors a draft unilateral statement they proposed should be read on her behalf. The defendant made a number of objections to the draft, including to the two passages with which we are concerned in this appeal. Shortly afterwards, the claimant's solicitors made an application to the court under CPR Part 53, PD para 6.3 for permission to read the draft unilateral statement, supported by a witness statement exhibiting the correspondence between the parties. The application invited the judge to decide the matter on the papers, and though the defendant opposed that course being taken, it did not put in any evidence or submissions in response.
14. The draft unilateral statement said this in part (some of the sentences are underlined and numbered for ease of reference):

"The Article alleged that the Claimant had given a knowingly false account of her time as a single mother in Edinburgh in which she had falsely and inexcusably accused her fellow churchgoers of behaving in a bigoted, unchristian manner towards her, of stigmatising her and cruelly taunting her for being a single mother ("the Allegations"). Further, the Article alleged that the Claimant's account had been disputed by other members of the church, who had been left either upset and bewildered or surprised and confused by her 'sob story'. [1] The Article also stated that the churchgoers had gone out of their way to make her welcome and look after her. [2]

The Claimant's Gingerbread article was, in fact, neither false nor dishonest. [3] The Defendant's journalist had spoken with one member of the congregation, quoted in the Article, who had not seen the Claimant's Gingerbread article. [4]

Despite what was claimed in the Article, members of the Claimant's church had not been left upset, bewildered, surprised or confused by her Gingerbread article. [5]

Publication of the Allegations left the Claimant understandably distressed. This distress was exacerbated by the dismissive manner in which the Defendant dealt with the Claimant's complaint in respect of an obviously defamatory and indefensible Article. [6] The Defendant's gratuitous publication of the name of the church attended by the Claimant was also deeply upsetting.[7] The Article also included an inaccurate suggestion that the Claimant had benefited financially as a result of her identity as the author of "The Cuckoo's Calling" ('Robert Galbraith') being leaked by her former solicitors and sales of the book increasing dramatically as a result. [8] All Royalties from this book are being donated to The Soldier's Charity, which was widely publicised at the time the Claimant settled the resulting breach of confidence claim in July 2013. [9]

15. The draft unilateral statement went on to record (correctly), that the defendant was proposing to publish an apology to the claimant which said this:

"Our September 28, 2013 article "How JK's sob story about her single mother past surprised and confused the church members who cared for her/"How JK's sob story about her past as a single mother has left the churchgoers who cared for her upset and bewildered" suggested that JK Rowling had falsely claimed in an article for the Gingerbread charity that people at her church had stigmatised her and cruelly taunted her for being a single mother. In fact Ms Rowling recounted only one incident where a visitor to the church stigmatised and taunted her on a particular day. We accept that Ms Rowling's article did not contain any false claims and apologise for any contrary suggestion and have agreed to pay substantial damages to Ms Rowling, which she is donating to charity, and a contribution to her legal costs."

16. As can be seen by a simple process of comparison, this was not a proposal to apologise for the meaning the defendant accepted the article bore when it made its offer of amends, but to apologise for a less serious meaning (i.e. that the claimant "had falsely claimed…" rather than that she had given "a knowingly false" and "inexcusable" account).
17. The judge determined it was appropriate to deal with the matters on the papers, and circulated his judgment in draft. The defendant then lodged short written submissions with the judge's permission. Amongst other matters, the defendant said the exclusion of the word "dishonest" would cause no harm to the claimant and the phrase containing it could be replaced by the words "was not false and still less known to be false", an adjustment to which it said it would have no objection.
18. The judge took the defendant's written submissions into account before handing down the judgment in its final form. He rejected the defendant's objections, and gave the claimant permission to read the statement in the terms of the draft that her solicitors had submitted with the application. His view that the matter should be dealt with on the papers was linked to his reasons for concluding the claimant should be permitted to make the statement in the terms that she wished to. He said what a claimant is permitted to say in a statement in open court, engages her right of freedom of expression. It follows from the terms of s.3 of the 1996 Act which prohibited a claimant who had accepted an offer of amends from bringing or continuing proceedings, that the court should not regard as normal an oral hearing of submissions by a defendant that a claimant should be refused permission to make a unilateral statement. That would in effect be likely to involve further submissions by a claimant, which would come close to the continuation of proceedings which is prohibited by s.3 (2) of the 1996 Act. It would also make the procedure envisaged by s.3 unfair to a claimant. He said a defendant is free to put whatever it wants in any publication made pursuant to s.3(4) of the 1996 Act: and in those circumstances the court should be slow to permit a defendant to seek to control what a claimant wishes to say for her part in her unilateral statement. It should only interfere if a sufficient reason was shown for refusing permission, and there was no sufficient reason raised here. None of the matters to which the defendant took objection raised any unfairness to the defendant having regard to the way the claim was notified and dealt with in the correspondence or in the pleadings.
19. On 7 May 2014, after permission to appeal was given, the defendant published an apology to the claimant in its corrections and clarifications column at the bottom of page 2 of the print edition, and on Mail Online, accessible through a link on the news page. The published apology differed from the one it had earlier proposed, in that the words: "had falsely claimed" were replaced by the words "had made a knowingly false and inexcusable claim". The parties subsequently agreed on the amount to be paid to the claimant as compensation (which the claimant had already said would be donated to charity) and costs.
20. It should be noted that the defendant's objections to the content of the draft statement in this appeal are significantly more limited than they were before the judge. The sentences underlined in the extract from the draft statement set out above, were objected to when the matter came before the judge. One of those objections (to the sentence numbered 6) was dropped when the defendant came to make its written submissions to the judge after the draft judgment was circulated; and four more objections (to the sentences numbered 1, 2, 4 and 5) had been dropped by the time the matter came before us.
21. The 'meaning objection' now concerns one word only in the draft statement: the word "dishonest" in the sentence numbered 3, "The Claimant's Gingerbread article was, in fact, neither false nor dishonest." The point Mr Caldecott QC for the defendant makes in relation to that word is a simple one. The meaning of the words complained of is a central (and is often the critical) issue in defamation actions, and is crystallised in the pleadings. The word "dishonest" does not appear in the pleadings, and he says, its inclusion in the draft statement gives an impermissible 'moral colour' to the meaning the defendant conceded the article bore when it made its unilateral offer of amends. This is unfair to the defendant, and the judge was wrong to give permission for that word to be used.
22. I am unable to accept this submission. The allegation complained of is that the claimant had given a knowingly false account of her time as a single mother in which she falsely and inexcusably accused her fellow churchgoers of behaving badly towards her. This pleaded meaning is accurately and unambiguously set out in the draft statement, where, as can be seen, it is stated in terms that this is what the article alleged (defined as "the Allegations"). It is plain beyond sensible argument, as Mr Rushbrooke QC for the claimant submits, that anyone hearing the statement being read, or reading it could be in no doubt that this is the meaning complained of. Nor would such a notional third party be misled as to the defendant's position. A later passage from the unilateral statement, about which the defendant does not complain, expressly records that the defendant accepts as "completely false and indefensible" "the Allegations" i.e. the accurately recorded pleaded meaning. The premise of the defendant's argument on this appeal is therefore a flawed one.
23. In my opinion, the one word to which the defendant objects does not change the position. The sentence of which it is a part, is no more than the expression in ordinary and less formal language of the correctly identified pleaded meaning. It is indubitably true that the word "dishonest" is not actually used in the pleading, but, as Mr Rushbrooke submits, it impossible to see how the claimant could have given an account which she knew to be false (and which contained false and inexcusable allegations against her fellow churchgoers) without being dishonest. References to different hypothetical examples, and to the use of the word "dishonest" in other contexts, do not take the defendant's case on this point any further.
24. These conclusions are sufficient to dispose of the one live point on this appeal.
25. Looking at these issues more generally however, the procedure by which a statement in open court is made as an incident of the settlement of a libel action, is one of long standing: see Gatley on Libel and Slander, 11^th edition, para 31.10. It antedates by many years the introduction of the offer of amends regime, or its ineffective predecessor, in section 4 of the Defamation Act 1952. A statement in open court is often a valuable endpoint to litigation brought to achieve vindication, since it provides the means for more publicity to be given to a settlement (and therefore to a claimant's vindication) than might otherwise occur. Such statements often include an explanation of why proceedings were brought, why what was said was particularly hurtful or damaging, and the effect that the publication complained of, and of events associated with it, has had on a claimant. It is conventionally said in such statements that in the light of the settlement and the reading of the statement in open court, the particular claimant is now "content to let the matter rest". The existence of the procedure benefits both litigants and the public, by facilitating settlement.
26. In Barnet v Crozier [1987] 1 WLR 272 the Court of Appeal said that as a matter of general principle, parties who have made a bona fide settlement of a defamation action and ask for permission to make a statement in open court may expect to be allowed to do so unless some sufficient reason appears on the material before the judge why permission should be refused; and such statements should be permitted if there is nothing in the case which makes it unfair to another party for the statement to be made (per Ralph Gibson LJ, at pp 278-9 and 281). That general statement of principle remains good law, and I think the judge was right to be guided by it in this case.
27. The court is unlikely to intervene in the absence of any real or substantial unfairness to the objecting or other third party and 'nit-picks' are to be discouraged. This relatively high threshold for intervention is correctly calibrated in my view, for two reasons. First, because as the judge pointed out, a party making a statement in open court is exercising their right to freedom of expression and the court should not be too ready to intervene in those circumstances, not least because a defendant is free to say what it wants about the settlement, without interference from a claimant. Secondly, the value of the procedure might be undermined if disputes preceding settlement were permitted to leach too readily into the settlement mechanism designed to bring the proceedings to an end, thereby giving rise to further, collateral disputes.
28. I should add that such disputes rarely arise at first instance, let alone on an appeal against the exercise of what is a discretion; and the procedure generally works well. Parties are expected to approach the matter constructively, and should be encouraged to do so, whether the statement is a unilateral or joint one, and whether the settlement follows the acceptance of a Part 36 offer, or an offer of amends made under the 1996 Act. If a defendant thinks there is any unfairness in what is proposed, that a claimant is significantly 'over-egging the pudding', or travelling impermissibly outside the case and exaggerating its effect, then it will have the opportunity to say so in response to an application. This should be done initially in writing. If a judge thinks it appropriate, either because of what is said by a defendant or because of other concerns, then the matter can be argued at an oral hearing. However, the matter should usually be capable of being dealt with on the papers.
29. I quite accept that a statement in open court (whether unilateral or joint) must be fair and proportionate. It should not misrepresent a party's case, or the nature of any settlement that is reached. The interests of third parties should also be borne in mind having regard to the fact that a statement in open court is made with the benefit of absolute privilege, and so can be freely reported. Beyond that however, I think it would be unwise to be overly prescriptive. What is fair and proportionate for litigants to say in a statement in open court must depend on the facts.
30. I do not accept any special or different approach is called for where the statement is made after the acceptance of an offer of amends, as Mr Caldecott suggests.
31. He says quite rightly that the offer of amends procedure was introduced to provide a mechanism for (and indeed to encourage) early and economic settlement of libel actions, a point emphasised in a number of cases where the provisions have been considered. In Warren v The Random House Group Limited [2009] QB 600, 31, CA, 15 for example, the court agreed with Gray J that it is designed to provide: "an exit route for a defendant who is unwilling or unable to advance a substantive defence in respect of the whole or part of the claim against him and the opportunity for a claimant to achieve an economical and rapid resolution of his complaint or part of it." He also points to the fact that where the court is concerned with the assessment of compensation under the offer of amends regime, the court will normally determine the matter by reference to what was "on the table" on the issue of damages when the offer of amends was made and then accepted; and that in a case where a claim has been formulated in the pleadings it would usually be unfair to require the defendant to pay compensation by reference to matters of which it had no notice at the time when it decided to make the offer: see Abu v MGN Ltd (Practice Note) [2003] 1 WLR 2201, [2002] EWHC 2345 (QB) where Eady J said at paras 8-9, the offer of amends should be construed as relating to the complaint as notified.
32. But I am not persuaded that this approach is germane to how the court should decide what a claimant should be permitted to say in a statement in open court about her reasons for bringing a claim and the settlement. A claimant who has been wronged, and accepts an offer of amends is in no different position to any other claimant accepting an offer; and I do not accept that his or her rights about what can be said are somehow generally circumscribed, by dint of the general nature of the settlement. As Eady J pointed out in Winslet at para 21 and following, a claimant who applies for permission to make a statement in open court after accepting such an offer, is taking a separate and independent step - not linked specifically to the new statutory regime. In this respect I think the judge was right to say that the defendant's arguments made by reference to the offer of amends regime, either in respect of meaning, or in relation to the approach adopted to compensation, "miss the point."
33. I also do not accept that applying what might be described as the normal approach to what a claimant should be permitted to say, would discourage the use of the offer of amends regime. As Mr Rushbrooke points out, the offer of amends regime has very significant advantages for a defendant. A claimant is almost bound to accept such an offer if made, or risk losing the entire claim for failure to prove malice. As already mentioned, a claimant has no control or right to interfere with what a defendant chooses to publish. And if called upon to decide the issue, the courts make a substantial discount to the amount of compensation a claimant receives, in comparison to what might otherwise be received after a trial, to reflect the substantial mitigating factor of the offer of amends itself: see Nail at paras 19 to 21. I do not think a defendant who has made an error and wishes to put his hands up to it, will be dissuaded from doing so, because of what a claimant might say in a unilateral statement in open court, after proper scrutiny by the court, applying the general principles to which I have referred.
34. I can mention more briefly the aggravated damages objection since we are not required to resolve the matters disputed before the judge, and to that extent, this aspect of the appeal is now academic.
35. In the pre-action protocol letter, the claimant's solicitors said she took objection to the fact that the defendant had gratuitously published her private details in the article, for example the name of the Church where she and her family worshipped. The letter also contended that the article accused the claimant of hypocrisy. In this context, it was said the article had given the false impression that the claimant had sought to benefit financially from the disclosure of private information, including when it became known that she was the author of The Cuckoo's Calling, but the article did not then acknowledge that the claimant had donated the profits of the book to The Soldier's Charity. In correspondence, the defendant disputed that the name of the claimant's Church was not in the public domain; and said it did not accept the article had implied she had profited from becoming known as the author of The Cuckoo's Calling.
36. In the event, the pleaded claim to aggravated damages relied on the inter-party correspondence, but not in relation to these particular points. The defendant therefore objected to reference being made to them in the draft statement in open court (in sentences numbered 7, 8 and 9).
37. The judge said, and I agree, that it can be difficult to draw a clear line between what can be claimed as compensatory damages for injury to feelings without being specifically pleaded, and what must be pleaded if aggravated damages are to be awarded. It should also be noted, as Mr Caldecott accepts, that a situation might arise where matters occur or are discovered after the case is pleaded which are relevant to damages and which it is legitimate for a claimant to refer to. Too rigid an approach by reference to the pleadings might also be counterproductive, since it could encourage a claimant to plead "too much" which would not be conducive to settlement. What it is fair and reasonable for a claimant to say therefore, and whether this should be judged by reference to the four corners of the pleading (if they have been settled) and/or can include other matters, including those raised in correspondence, must depend on the facts. Such issues should usually be capable of sensible resolution by the parties, or if not, by the judge at first instance, in the event, as here, that matters cannot be agreed.
38. As it is, however, for the reasons given, I would dismiss the appeal.

Lord Justice Ryder:

39. I agree.

Lord Justice Longmore:

40. I also agree.
Section 3 of the 1996 Act

"…

(2) The party accepting the offer may not bring or continue proceedings in respect of the publication concerned against the person making the offer, but he is entitled to enforce the offer to make amends, as follows.

(3) If the parties agree on the steps to be taken in fulfilment of the offer, the aggrieved party may apply to the court for an order that the other party fulfil his offer by taking the steps agreed.

(4) If the parties do not agree on the steps to be taken by way of correction, apology and publication, the party who made the offer may take such steps as he thinks appropriate, and may in particular–

(a) make the correction and apology by a statement in open court in terms approved by the court, and

(b) give an undertaking to the court as to the manner of their publication.

(5) If the parties do not agree on the amount to be paid by way of compensation, it shall be determined by the court on the same principles as damages in defamation proceedings. "The court shall take account of any steps taken in fulfilment of the offer and (so far as not agreed between the parties) of the suitability of the correction, the sufficiency of the apology and whether the manner of their publication was reasonable in the circumstances, and may reduce or increase the amount of compensation accordingly.

(6) If the parties do not agree on the amount to be paid by way of costs, it shall be determined by the court on the same principles as costs awarded in court proceedings.

(7) The acceptance of an offer by one person to make amends does not affect any cause of action against another person in respect of the same publication, subject as follows … "