Damages in offer of amends cases

Jonathan Campbell-James v Guardian Media Group Plc


The highest award of damages by a court in a libel claim concluded under the offer of amends (OOA) procedure has been awarded to Colonel Jonathan Campbell-James. The Guardian was ordered to pay £58,500 - after a 35% discount had been applied to damages of £90,000 - to compensate the Intelligence Corps claimant for allegations that he was linked to the notorious 'torture jail', Abu Ghraib prison in Iraq.


The OOA procedure was implemented by the Defamation Act 1996 as a quick and economic way for defendants to extricate themselves from libel litigation where they had innocently defamed the claimant, and to provide claimants with a swift and effective remedy without the need to proceed to trial, which is a significant incentive for the claimant to settle an action.


The OOA procedure was given a boost by the decision of Mr Justice Eady in Jimmy Nail v (1) Geraint Jones (2) Harper Collins Publications Ltd (see [2004] Gazette, 10 June, 30) and approved by the Court of Appeal (see [2005] Gazette, 20 January, 29), in which he proposed that defendants should be given a 'healthy discount' in the award of damages to reflect their willingness to use the conciliatory procedure.



The Court of Appeal agreed that a discount should be applied, but that it should be decided on the particular case in question and the behaviour of the parties, not that there should be a standard discount across the board.


Col Campbell-James was described by Mr Justice Eady as 'a distinguished soldier who has served for nearly 30 years in the Intelligence Corps', and by his former commanding officer as 'embodying the best traditions of the British army'. From the age of 16 he had been a member of the Council for the Advancement of Arab/British Understanding. He speaks Arabic and had been a frequent visitor to the Middle East.


Therefore, he was 'horrified' to read in an article in The Guardian that he was accused of being one of two intelligence officers, 'embedded within' the US unit responsible for extracting information from Iraqi prisoners in the Baghdad prison in Abu Ghraib, 'where Iraqi prisoners were systematically abused and humiliated'. In fact, Col Campbell-James had not been based at Abu Ghraib and had not been posted to Baghdad until after the US army had uncovered the abuse. The article was based on an answer to a parliamentary question as to the extent of British involvement at Abu Ghraib.


The judge had first to consider the starting point for damages, that is, what damages would have been following a trial with no significant mitigating or aggravating factors. The figure of £90,000 in this case reflected the seriousness of the libel and its impact on the claimant who had said 'to be accused of command of responsibility for such abuses is personally abhorrent and one of the worst things which would be said about a serving military officer with my professional background'.


Witnesses also suggested that this allegation - republished in the Moroccan newspaper, Le Matin - would put his life at risk and would prevent him from being likely ever to be able to go back to the Middle East.


The judge then had to consider what discount he should apply having regard to the use of the conciliatory OOA procedure and any apology. In Nail, the discount had been a 'healthy' 50%. In this case, it was only 35%. The judge considered that 'this was plainly a case for an immediate and generous acknowledgement of error and for putting matters right, as far as was then in their power, as soon as possible'.


However, The Guardian did not publish an apology until three months after the publication of the article and, in the interim period, it had 'taken the stance that it had a complete defence to any claim, including 'the insulting suggestion' that it had been fair comment to link the claimant to the torture jail.


The apology itself did not go without raised eyebrows. Published in the regular corrections and clarifications column and next to a clarification about the gender make-up of the performance of Swan Lake at Sadler's Wells, it concluded: 'Apologies to Colonel Campbell-James'. Mr Justice Eady said 'If Col. Campbell-James found that off-hand, he can surely be forgiven'.


The 'remarkably casual' approach to the claimant and The Guardian's failure promptly to accept that it had got it wrong on uncontroversial facts factored into the discount given. But The Guardian did, in the end, apologise and offer amends, so it was entitled to a discount.


Adopting a conciliatory approach will nearly always attract the recognition of the court and Mr Justice Eady confirmed that by laying down its arms, behaving reasonably and allowing a claimant to know that he has effectively won, a newspaper can help to assuage a claimant's hurt feelings and distress. Accordingly, there should be 'a significant reduction in almost every offer of amends case'.





David Turner v News Group Newspapers Ltd


In another case concluded under the OOA procedure, with judgment handed down by Mr Justice Eady on the same day, 12 May, the claimant did not do so well.


He had complained over an article in the News of the World about 'swinging' and sex parties in which it was alleged that he had introduced a former wife of his to the scene and that their marriage had broken down as a result of him having pressured her into having sex with other men. The claimant was not named, but was identifiable to some people who knew him.


The defendant made an OOA and the judge, assessing the damages as referred to earlier, arrived at a starting point of £15,000. He then went on to consider the discount to be applied. Having regard to 'the rather dismissive way in which the complainant was initially treated, and the assertion that the words were true, which appeared to be maintained from 8 April to 18 June 2004', the fact that the eventual apology was not published until six months after the article, and that it was 'rather tucked away and was likely to have been missed by many of the relevant readers', he applied a discount of 40%, giving total damages of £9,000.


The defendant made a £15,000 payment into court in October 2004 when its September offer of £10,000 had not been accepted. Accordingly, the court ordered the defendant to pay the claimant's costs only up to the date of the September offer, potentially leaving the claimant to pay costs that might eat into, if not eat up, his damages.


These judgments are helpful additions to the growing body of case law that will assist claimants in assessing the likely damages that the court might award. But the extent of the percentage discount that the court might apply in any given case, potentially catching them out if a payment into court has been made, means that assessing the likely awards is never going to be easy. A careful eye both to the starting point damages, and the percentage discounts applied in defamation cases will have to be maintained, resulting in due course in a set of references for damages in OOA cases.


By Amber Melville-Brown, David Price Solicitors & Advocates, London