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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Loughton Contracts Plc v Dun & Bradstreet Ltd [2006] EWHC 1224 (QB) (25 May 2006) URL: http://www.bailii.org/ew/cases/EWHC/QB/2006/1224.html Cite as: [2006] EWHC 1224 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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LOUGHTON CONTRACTS Plc |
Claimant |
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- and - |
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DUN & BRADSTREET LIMITED |
Defendant |
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(instructed by Foskett Marr Gadsby & Head) for the Claimant
Mr Mark Warby QC and Mr Adam Speker
(instructed by Bird & Bird) for the Defendant
Hearing dates: 17 May 2006
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Crown Copyright ©
Mr Justice Gray:
"the Claimant has an appalling record for maltreating its creditors; it is so chronically delinquent in paying its debts that it has failed to pay monies owed by it within the agreed time in 94% of cases and on average it pays its debts 165 days after the deadlines for paying them have expired".
There is a further meaning which the Claimant contends was borne by the words either in their natural and ordinary meaning or by innuendo, namely that:
"it is highly likely that the Claimant has serious financial problems and is on the verge of defaulting on its debts and going bust".
"In support of its claim for general damages, the Claimant will rely upon the fact that the publications complained of have caused an as yet unquantifiable financial loss to it because of the negative effect that they have had upon persons with whom and organisations with which it conducts or might conduct business, thus wrongly depriving the Claimant of income (the Claimant reserves its right to plead further particulars in this regard in due course and to claim special damages)".
"(a) to make a suitable correction of the statement complained of and a sufficient apology to the aggrieved party,
(b) to publish the correction and apology in a manner that is reasonable and practicable in the circumstances and
(c) to pay the aggrieved party such compensation (if any), and such costs, as may be agreed or determined to be payable".
Subsection 5 provides that an offer of amends may not be made by a person after serving a defence in defamation proceedings, i.e. the offer must precede the Defence.
"8. In this instance, it must provide an incentive to defendants to make the offer and to claimants to accept. In either case, a rational decision can only be made if it is possible within reasonable limits to predict the range of outcomes to which one is committing oneself. For example, before making an offer a claimant needs to be able to assess the gravity of the impact of the libel upon the complainant's reputation and feelings, and this will generally have to be done in the light of the Particulars of Claim and/or letter before action. It would not seem fair if an offer is made and accepted on one basis, and the complainant then reveals for the first time elements of pleadable damage not previously mentioned, such as for example that his marriage has broken down or that he has lost his employment.
9. It would only accord with most people's sense of justice if the offer of amends is construed as relating to the complaint as notified. Such an approach would also accord with the modern "cards on the table" approach to litigation generally and, more specifically, with the thinking behind the Defamation Pre-Action Protocol".
"Speaking generally, there may of course be evidence from both sides relevant to the determination of compensation. But in principle it seems that the claimant should not normally be permitted to enlarge significantly pleaded allegations upon which the offer to make amends was made and accepted, for example by promoting a new case of malice. Nor should a defendant, who has made an unqualified offer which has been accepted, be permitted to water down significantly the pleaded allegations. Claimants should therefore plead the full substance for which they seek redress: defendants who wish to make amends for significantly less than that full substance should make appropriate qualifications to their offer".
"As you are of course aware we have been trying to settle this matter by negotiation with you. We have been unable to do so and write now to make an offer of amends under section 2 of the Defamation Act 1996. This is intended to cover your client's defamation claim as pleaded in the claim form and the particulars of claim.
It is an unqualified offer to publish a suitable correction and sufficient apology; to publish that correction and apology in a manner that is reasonable and practicable in the circumstances; and to pay such compensation and costs as are agreed or determined to be payable".
"Our client accepts your offer of amends, however, in doing so it maintains its right to do the following and will apply to court if necessary in order to enforce those rights:
- to be compensated for all publications which were made by your client, regardless of when they were made, under the offer of amends procedure. We regard your offer of amends has having been made in regard to all publications of the report whether they took place before or after 2 December 2004;
- to be informed, whether via disclosure or otherwise, of the identity of all of the publishees; and
- to then make a claim for special damages once it has investigated the effect of the words complained of upon all of the publishees i.e. it will claim such damages if it can establish a case that as a result of the report being published to one or more entities our client lost business as a result".
"As already made clear in our letter of 9 March 2006, our client accepts the offer of amends made by your client further to section 2 of the Defamation Act 1996. There is clearly a disagreement between the parties as to the precise scope of the statutory offer but this will have to be resolved, if necessary, by the court".
Mr Parkes accepts that the last sentence which I have quoted refers back to the conditions which have been stated in the Claimant's earlier letter of 9 March 2006. It seems to me that, if the letter of 9 March does not constitute a valid acceptance of the offer of amends, the later letter of 21 March cannot do so either.
"There is no concept in the 1996 Act of 'rejection' of an offer of amends by the claimant and no time limit within which to accept it. Under general contractual principles the rejection of an offer amounts to a termination of the offer which means that it cannot be subsequently accepted. Even where an offeree does not specifically reject the offer, his conduct may be held to amount to a rejection. Pursuing the claim following an offer of amends may therefore be held to amount to rejection. The decision on whether or not to accept the offer occurs at an early stage of the litigation, before disclosure. The claimant may not be in the best position to assess whether he has a strong case on disqualification. If he does not accept the offer then he may be deemed to have rejected it and may not therefore be able to accept it later when he subsequently discovers that he is on weak ground in relation to disqualification…
To allow a claimant who fails to accept an offer when it is made to have the option of accepting it at a later stage would be contrary to the aim of the defence which is to encourage speedy disposal. Claimants could elect to proceed in the hope of finding material on disclosure or later to support their case on disqualification. If none emerged they might accept the offer late in the day. If this were to be permitted, the court should generally make the claimant pay the costs thrown away by failing to accept the offer when it was made, on the basis that he will have achieved nothing by proceeding with the claim".