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Lord Williams of Mostyn: I can achieve a lifelong ambition, because I can use the immortal words, "Up to a point, Lord Copper", on a legitimate public occasion. It is not entirely right, because one can always put forward on behalf of a defendant the fact that an apology has been offered. I have done it myself, not always with

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enormous success. The fundamental point is that it is an undue rigidity which is capable of harming the defendant's interest but, not least, capable of taking away from a plaintiff an offer of amends, which is all he really wants. Having said that, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 2, as amended, agreed to.

Clause 3 [Accepting an offer to make amends]:

The Lord Chancellor moved Amendment No. 28:


Page 3, line 14, leave out ("cannot") and insert ("may not").

The noble and learned Lord said: I have spoken to this with Amendment No. 22. I beg to move.

On Question, Amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 29:


Page 4, line 7, at end insert ("where the parties so agree").

The noble Lord said: This relates to Clause 3, subsection (9):


    "Proceedings under this section shall be heard and determined without a jury."

My amendment seeks the agreement of both parties for a judge alone so to decide. In essence, this comes down to a question of the approach to the assessment of damages. Many would, perhaps, feel that damages in personal injury cases are grossly unacceptable to the vast body of public opinion, rightly, as I submit, because the power of increasing damages was taken away from juries and now juries virtually never assess damages, at least in England and Wales, contrary to the position which has applied in Northern Ireland.

The reason that I put this forward is that it should be for both parties to agree that a judge alone should assess the damages. Judges are notoriously mean in assessing damages in personal injury cases. That is the basis for this amendment, which I beg to move.

The Lord Chancellor: In introducing this machinery, we are seeking to provide a way in which the parties will be brought together to reach a sensible conclusion which will be for the benefit of both plaintiffs and defendants. In many cases it may be unnecessary for them to seek the assistance of the court at all. But if they cannot agree on the steps to be taken in fulfilment of the offer, they may seek the assistance of the court under Clause 3.

One of the factors which will make the offer to make an amends an attractive option for defendants is the knowledge that if they cannot agree with the plaintiff on the exact details of the steps to be taken by way of amends, any money compensation which would form part of the amends package would be assessed by the judge who would clearly take very much into account such mitigating factors as the defendant's willingness to restore the plaintiff's reputation fully and promptly. It is important to recognise that a defendant who makes an offer under these provisions will be entering into an open-ended commitment to do a number of things which

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may include the payment of a sum of money on which there is no upper limit. Certainly defendants will recognise that.

The effect of this amendment, providing that Clause 3 proceedings should only be heard and determined without a jury if the parties so agreed, is to give the plaintiff the option of insisting that the steps to be taken to honour that open-ended commitment should be determined by a jury. Immediately, the costs which the parties are likely to meet will be much more substantial. The defendant will bear that in mind when deciding whether to make an offer under Clause 2. But another and more serious objection is that a defendant may not even contemplate making an offer if it will amount to entering into not only an open-ended commitment but a commitment to pay whatever sum, and take whatever steps, a jury may decide upon. Our intention in these provisions is to provide machinery which defendants will want to make use of for the purpose of making amends. We shall fail if defendants find that there is a sting in the tail of that so that they conclude that there is no point in using it.

It is always possible for a defendant to offer to settle at any stage of the litigation on such terms as he or she thinks he should offer. Then it will be for the plaintiff to decide whether to take that offer. In my submission to the Committee this provision is intended to introduce a special procedure in which it is appropriate that the judge should decide the amount in question as a concomitant to the fact that this is a special procedure which is intended to short-circuit the existing procedure and also to involve a degree of constraint on cost, which is an important element in the matter. I hope that, in the light of this explanation, the noble Lord will feel able to withdraw the amendment.

Lord Williams of Mostyn: I shall indeed--although I may wish to return to it at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3, as amended, agreed to.

Clause 4 [Failure to accept offer to make amends]:

On Question, Whether Clause 4 shall stand part of the Bill?

Lord Williams of Mostyn: I wish to raise some general questions. However, I shall be economic in my words because in a sense I repeat the questions which I raised earlier. Clause 4(3) states,


    "There is no such defence if the person by whom the offer was made ... had reason to believe that the statement complained of--


    "(a) referred to the aggrieved party or ... was both false and defamatory of that party".
"The person" referred to is the defendant. I have mentioned my next question before. If a defendant realises that his earlier belief was wrong and that it was grossly wounding of a plaintiff, why should no offer of amends defence be available to him? Clause 4(5) states,


    "The offer may be relied on in mitigation of damages whether or not it was relied on as a defence".

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I wonder how that will work in practice and whether there is not some internal inconsistency here, and how a judge will deal with these matters if an offer is relied on in mitigation of damages though it is not relied on as a defence. That is a genuine question as to how this measure will work in practice.

The Lord Chancellor: It is some time since I practised in the field of defamation in another jurisdiction and therefore I offer comment on practice with a degree of diffidence which perhaps I do not always show. As regards the latter matter to which the noble Lord referred, what I assume to be the situation is that if the offer was made but subsection (3) of Clause 4 applies, and therefore the offer either was not put forward as a defence or fails as a defence for the reason that the conditions there referred to were applied, it is still possible to rely on the offer as a mitigation of damages on the view that if the offer had been accepted the resulting damage would have been less than it might otherwise be. That is the way I assume the measure might work.

On the main point, the intention that the noble Lord has evinced is that there should be machinery to determine the steps to be taken pursuant to an offer to make amends which has been accepted, but that the fact that a good offer had been made and not accepted should not amount to a defence. Those modifications together would undermine the purpose of the offer to make amends. In making an offer, the defendant commits himself to making appropriate amends, which may include money compensation assessed by a judge. The incentive to commit himself in this way is provided by the knowledge that he will have an absolute defence if the offer is not accepted (unless it is shown that he knew or had reason to believe that he was defaming the plaintiff). The effect of taking that defence away is that once the defendant has made an offer, the plaintiff must win, and has nothing to lose by disregarding the offer and insisting on a trial. It is most unlikely that any defendant would then use this machinery rather than making a without prejudice offer. It is important to draw attention to the fact that this is an alternative. It is not the same as either a without prejudice offer or an offer of settlement. It is a more particular matter that is being addressed. If Clause 4 were to go, the position would be hopeless. The single most important part of the proposals made for reform remaining to be implemented would go if this were taken out of the package.

I think it is also worth saying that the approach of the Court of Appeal in recent cases, such as those of Elton John and Esther Rantzen, towards the control and rationalisation of libel damages, as well as running quite contrary to the modern attitude of courts towards litigation generally, would be affected in an inconsistent way if Clause 4 were not kept in place. In my submission, Clause 4 is an essential part of the machinery for this special type of offer of amends which is set out in Clauses 2 to 4.

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Lord Williams of Mostyn: I am obliged to the noble and learned Lord for his exposition. I do not concur but my observations in respect of Clause 4 relate to the judgments of the Court of Appeal in the case of Elton John v. Mirror Group Newspapers which itself was not consistent with the Court of Appeal judgment which occurred shortly before that in the case of Rantzen. However, I shall withdraw my opposition on the basis that I may well return to it in due time.

Clause 4 agreed to.

Clause 5 [Limitation of actions: England and Wales]:


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