| DEFAMATION — Pleadings — Offer of amends — Libel claim in respect of three passages in book — Defendant making offer of amends in relation to one passage and pleading justification as to remainder — Claimant accepting offer and apology read in open court — Whether defendant precluded from resiling from offer and amending defence to plead justification — Defamation Act 1996, ss 2, 3
Warren v The Random House Group Ltd [2008] EWCA Civ 834; [2008] WLR (D) 242
CA: Sir Anthony Clarke MR, May and Wilson LJJ: 16 July 2008
Only in exceptional circumstances would the court permit a defendant to resile from an offer of amends made and accepted in a libel action.
The Court of Appeal so held in a reserved judgment, inter alia, dismissing an appeal by the defendant publisher from the interlocutory decision of Gray J [2008] 2 WLR 1033, who on 5 December 2007 refused the defendant’s application to amend its defence in a libel claim issued by the claimant, Frank Warren, so as to plead justification in relation to one of several alleged libels in a book in respect of which it had previously made an offer of amends.
SIR ANTHONY CLARKE MR said that the appeal raised questions as to the circumstances in which a party could resile from an accepted offer to make amends made under s 2 of the 1996 Act. In the instant case an offer of amends was made before service of the defence and relied upon in the defence. It was accepted in the reply. The terms of an apology were subsequently agreed between the parties and a statement made in open court in the agreed terms: ss 2 to 4. The judge held that, on acceptance, a binding and legally enforceable contract came into existence. If that was so, either party could escape from his obligations under the contract by deploying the traditional grounds for impugning a contract, including misrepresentation and common mistake. The court was inclined to think that the statutory scheme, though consensual, was not a contract in the sense of creating contractual rights and obligations. Nevertheless, Ms Page was right to accept that, whether or not a contract properly so called came into operation, the court would permit either party to resile from it on one of the traditional contractual grounds. However, it was not necessary to reach a final conclusion on that point because the defendant could not rely on any such grounds in the present case. The general principles governing late applications for permission to amend did not apply to the present situation any more than they would after acceptance of a CPR Pt 36 offer, or after a settlement agreement reached outside the CPR. What principles did apply? Ms Page accepted that the court retained a residual discretion, if only because it retained a potential role in relation to the assessment of compensation. In Di Placito v Slater [2004] 1 WLR 1605, the Court of Appeal considered the correct approach to the release or modification of an undertaking voluntarily given in the course of litigation. Potter LJ identified three matters of particular importance, at paras 32–34. The first was the context. The second was whether the undertaking was given to the court independently of the agreement of the other party or as part of a collateral bargain. The third was that the question was whether there were “special circumstances” in the sense of circumstances so different from those contemplated or intended to be governed by the undertaking at the time that it was given that it was appropriate for the undertaker to be released from his promise. Similar considerations appeared to the court to be relevant here. Those considerations emphasised the rare nature of the case in which it was likely to be appropriate to relieve a party of the consequences of his bargain if, as here, it was freely entered into. The discretion was not a broad discretion of the kind conferred on the court by CPR r 14.1(5) to permit a party to amend or withdraw an admission. The defendant could have investigated the matter further before making the offer of amends but chose not to do so. In all the circumstances there were no special circumstances sufficient to allow the defendant to resile from the statutory consequences of the acceptance by the claimant of its offer of amends which was freely made on legal advice after a decision not to investigate further.
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