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Lord Lester of Herne Hill: Both the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Hoffmann, are quite right to indicate that this amendment should be taken together with the later amendment dealing with Clause 9 and the power of the court to determine the form of the apology by way of summary relief. I have spoken to that matter because I intended the two to be taken together.

Lord Hoffmann: If the same point arises, I would say that Amendment No. 36 and the three which follow it would in effect destroy the main purpose of the summary procedure. The whole idea of the summary procedure was based upon the perception, which I think is widely shared, that a libel victim does not usually want a large sum of money but rather the rapid publication of a correction and the vindication of his reputation as nearly as possible in the same place and with the same prominence as the original libel.

The Bill as it stands provides that in the first instance the courts will in general terms order the publication of a suitable correction and apology. But obviously, as my noble and learned friend the Lord Chancellor said, one cannot make a newspaper say that something is false when, despite the views of the judge, it still believes that it is true. After all, one must allow for the possibility that the judge may be wrong.

Nor is there any point in making a newspaper publish an insincere apology. Therefore, the Bill provides that the publication of an apology is for the parties to agree. But if there is no agreement, then the judge may direct the newspaper to publish a summary of his judgment. That does not commit the newspaper to saying that it agrees with it. In fact, if it is willing to risk another libel action, it can say that it disagrees with the judgment. But that judgment must be published because that is what justice to the victim requires.

It is only the most doctrinaire view of editorial freedom which will seriously object to a newspaper simply having to publish a summary of the judgment. The right to make a statement in court which the newspaper can ignore is perfectly useless. I know that my noble friend Lord Lester says that there is a code of practice relating to those matters, but we have some experience of what happens to codes of practice in this area. You may as well allow the victim to go out and proclaim his innocence to the passers-by in the Strand. The only proper remedy is to bring what the judge considers to be the truth to the attention of the same people who saw the original libel.

If that is thought to be an invasion of editorial freedom, one should remember that that is part of a larger package. First, there is the limitation of summary damages to £10,000. I should not like to see that limit increased to £25,000, as the noble Lord, Lord Lester, suggests, because £25,000 is quite a large sum of money. It is important to make it clear that the summary remedy is intended for people who are not primarily interested in money.

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Secondly, the other part of the package is that newspapers have the advantage of using the summary procedure as a cheap way to get rid of gold-digging claims. All that I have heard from editors and newspaper lawyers suggests that they regard this as a useful weapon. The amendment in the name of the noble Lord, Lord Lester, would give them all the advantages of the summary procedure with virtually no concession on their part to the rights of libel victims. I do not believe that that is fair.

Lord Lester of Herne Hill: I am extremely grateful for all the speeches that have been made on this and later amendments. I hope that the noble and learned Lord, Lord Hoffmann, does not regard me as doctrinaire on the approach towards editorial independence and its sovereignty because I certainly do not have that view.

I agree with the noble Lord, Lord Williams of Mostyn--and I believe that all Members of the Committee agree--that we must avoid inserting into a statute coercive judicial powers which dictate unnecessarily the form and manner of publication in newspapers. I am extremely heartened by the fact that all who spoke share that view.

Having heard the extremely persuasive speeches of the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Hoffmann, I should like to reconsider the matter. I am sure that it will be reconsidered also by the press because it is extremely important that the persuasiveness of the noble and learned Lord, Lord Hoffmann, persuades newspapers about the fairness and practicability of that procedure. If my amendment has done no more than serve to raise that issue, it has probably been worth while. Therefore, I shall reconsider the matter in case I wish to return to it on Report. Meanwhile, with gratitude, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 27:


Page 3, line 6, leave out ("not").

The noble Lord said: As presently drafted, Clause 2(5) indicates that the procedure of an offer to make amends may not be made by any defendant after he has served a defence. My proposal is that the word "not" should be deleted.

I make that suggestion for these reasons of practicality. Many publications are made responsibly by serious newspapers, although they are erroneous. It is not always discovered that they are wrong until perhaps the close of pleadings or, more often, the exchange of witness statements, which is automatic in libel actions. The usual defences of course would include justification, fair comment or qualified privilege.

It may well be that a perfectly responsible defendant publisher--for example, a newspaper--may wish to plead fair comment on a matter of public interest in the belief that it can demonstrate the truth of the underlying facts or justification to prove the underlying facts themselves, or it might be under a legitimate, genuine misapprehension that qualified privilege did attach.

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It seems to me, with great respect, that it is an unnecessary and unneeded restriction on the offer to make amends if the offer may not be made at any time after a defence has been served relating to fair comment, justification or qualified privilege, when the newspaper, for genuine reasons, wishes to abandon any of those defences. I beg to move.

Lord Lester of Herne Hill: I agree with everything that has been said by the noble Lord, Lord Williams of Mostyn. I have nothing to add.

The Lord Chancellor: It is a matter of some interest, to see just what we should do about it. The purpose of the provisions in Clauses 2 to 4 is to encourage defendants who have published defamatory statements to make speedy reparation to the wronged plaintiff. It will be up to the defendant to make up his mind reasonably quickly that he wants to use this machinery, which will curtail the proceedings and avoid trouble and expense for both parties. Speed is clearly of the essence, although one of the reasons why the defence under Section 4 of the Defamation Act 1952 did not achieve popularity as it might have done was that it required the defendant to act so fast that he hardly had any opportunity at all to carry out legitimate investigations and consider whether the best course would be for him to make an offer of amends under the section. Clauses 2 to 4 do not provide a specific time limit within which the defendant must make up his mind, but they do require him to act before he serves a defence. That allows him time to complete any necessary investigation.

Once he has served a defence, he has signalled his intention to go down the other path, and to defend the claim on some other basis, raising other issues, so that the defamation proceedings will take their normal course. The service of a defence, which is the result of his own considered decision, is a natural watershed. It is the point at which he must have decided that there is a defence which he wants to pursue, rather than make immediate amends. If a defendant were permitted to serve a defence first, and then decide that he would, after all, like to take advantage of these provisions, much of the benefit of these provisions might be lost. It could take away all sense of urgency, and fail to provide the plaintiff with the prompt amends that the provisions are designed to achieve.

The clause, as drafted, does not impose any time limit in the sense of a fixed time, but it does suggest a sensible watershed at which the decision is taken not to go down the road of an offer of amends because it has been decided to defend the action. This is the thinking behind the clause. An amendment as simple as this is easily made, but it affects, quite basically, the idea which is embodied in these provisions.

Lord Williams of Mostyn: I am sorry to say that I believe myself to be continually right and the noble and learned Lord, the Lord Chancellor, to be continually wrong in this instance. Everyone who has acted in a defamation case for the defendants realises the value of investigative journalism, particularly in a country as

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obsessively secret as ours. Many investigative programmes or articles are conscientiously researched and legitimately put forward.

The noble and learned Lord said that there was no fixed time. I respectfully disagree. If a plaintiff issues his writ promptly and his statement of claim promptly then, of course, the rules of court are quite restrictive in terms of time when the defence may be served, unless an extension is applied for and given. They are not frequently given in defamation cases. However, a defendant may honourably come to a conclusion that he was simply honourably wrong in the allegations he made against a wounded and wronged plaintiff. He may realise that his sources were wrong. He may simply realise, on a view, perhaps, of expert evidence from the plaintiff on the exchange of witness statements, that he has it hopelessly, awfully wrong.

The noble and learned Lord said that in effect that gives to the defendant--though he put it more elegantly than I--the penny and the bun but, of course, the answer to that lies in the question which the noble Lord, Lord Elton raised. If an apology is not forthcoming, can the damages be enlarged? The answer is: yes, a thousand times yes. That is because, as every practitioner will recognise, what inflates damages in most defamation cases is the refusal to apologise, or the refusal to apologise promptly. What is suggested here is that if a newspaper realises that it has it wrong, and realises, perhaps, that justification cannot run or that qualified privilege is a mistaken assertion, it ought to be able to say to the wounded plaintiff: "I have it wrong; I will make amends." Of course, if the fast-track procedure allowed an increase up to £25,000, then the plaintiff might well be adequately compensated. It seems to me to be unduly rigid in an area of law which is hide-bound by over-rigidity, to refuse to allow a repenting, repentant defendant to use this procedure simply because he has put the pleader's signature to a defence of fair comment, justification or qualified privilege.

8.15 p.m.

Lord Lester of Herne Hill: I am so grateful to the noble and learned Lord. Is it not the case that, as an example of the very rigidity of which he complains, at present the jury are not allowed to be told about an offer of amends once the matter comes to trial? Therefore, a defendant who does everything he reasonably can to make amends by way of apology and offers of various kinds is not able to place that material before the jury.

I should say, as regards the answer to that question, that it is the subject of a pending appeal in which I am professionally representing the defendant. Is that not now the current position which, therefore, adds force to the amendment in the context of the fast-track procedure, because one cannot remedy the situation once the matter goes to trial.


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