Libel – Malicious falsehood – Offer of amends

Tesco Stores Ltd v (1) Guardian News and Media Ltd (2) Alan Rusbridger: QBD (Mr Justice Eady): 29 July 2008.

The court was required to determine whether the claimant supermarket chain (T) was entitled neither to accept nor reject an offer of amends proffered by the respondent newspaper (G) following G’s publication of defamatory statements.

G had published allegations that T had engaged in a scheme designed to avoid corporation tax, and T instigated a libel action against G and a claim for malicious falsehood. G admitted the falsehood of its principal allegation, namely that the particular scheme in question did not involve the avoidance of corporation tax. G also admitted that the meanings pleaded by T were defamatory. G published a retraction of its principal allegation, stating that T had not been involved in the avoidance of corporation tax but rather an avoidance of stamp duty land tax. G served its defence 21 minutes after making an offer of amends pursuant to section 2 of the Defamation Act 1996. T neither accepted nor rejected that offer. The issue for determination was whether T should be compelled to elect either to accept or reject the offer of amends, and whether its malicious falsehood claim should be stayed as serving no useful purpose. G submitted that there was no head of damages recoverable in malicious falsehood that T could not recover in the defamation claim and that the malicious falsehood claim was only extant for tactical reasons. T argued that, even if it accepted the offer of amends and obtained an apology and damages under the statutory scheme, it could go on and obtain a decision on the malicious falsehood issue so as to have the court’s finding in relation to malice.

Held: (1) The philosophy underlying Parliament’s introduction of the offer of amends regime contained in the Defamation Act 1996 was to enable parties in defamation proceedings, or even prior to the issue of proceedings, to achieve a relatively speedy and inexpensive disposal of a complaint of injury of reputation where the defendant was prepared to acknowledge that it had published defamatory allegations that were essentially inaccurate. It would make a nonsense of that underlying policy if it were possible for a claimant to go ahead with proving malice while keeping an offer of amends available until the conclusion, or throughout the duration, of the trial, Express Newspapers Plc v News (UK) Ltd [1990] 1 WLR 1320 Ch D applied. T had to accept the offer of amends or else take on the risk of overcoming the statutory defence by proving malice at trial. Furthermore, there was no legitimate reason why T should be allowed to pursue a claim for malicious falsehood. It would not afford any substantive remedy in respect of reputation, and any damages to which T might be entitled as a result of G’s publications could be recovered in defamation, Burstein v Times Newspapers Ltd [2001] 1 WLR 579 CA (Civ Div), Turner v News Group Newspapers Ltd [2006] EWCA Civ 540, [2006] 1 WLR 3469 and Warren v Random House Group Ltd [2008] EWCA Civ 834 considered. Accordingly, the malicious falsehood claim would be stayed.

(2) Finally, G would be allowed to amend its pleadings to include a proposal that T had been avoiding stamp duty land tax as opposed to corporation tax, Birchwood Homes Ltd v Robertson [2003] EWHC 293 (QB) considered.

Judgment accordingly.

A Page QC, J Rushbrooke for the claimant; A Caldecott QC, C Evans for the defendant.