Defamation apology and offer of amends

KC v MGN Ltd [2013] EWCA Civ 3, [2013] All ER (D) 140 (Jan); NLJ 1 February

The underlying proceedings involved an action in which the claimant argued that he had been libelled by an article in one of the defendant’s newspapers. The claimant obtained judgment and an order for damages and costs in his favour. The defendant then appealed successfully against the award of damages. The Court of Appeal reduced the judge’s starting point from £150,000 to £100,000. It left in place the 50% discount to allow for the defendant’s statutory offer of amends in accordance with ss2–4 of the Defamation Act 1996 (DA 1996). Thus, the award of damages amounted to £50,000 (see [2012] All ER (D) 01 (Nov)). The instant proceedings were concerned with costs. The defendant contended that, in the context of ss2–4, an open offer of £50,000 for damages had been made on 15 December 2010 which, at the end of the proceedings, the claimant had failed to beat. The defendant argued that it followed that the claimant should pay the defendant’s costs of trial and appeal from the day when that offer had been rejected, on an indemnity basis. The claimant contended that the order made by the trial judge should be maintained, and that the defendant should pay his costs of the appeal. The defendant’s costs from 16 December 2010 were approximately £90,000 while the base costs sought by the claimant exceeded £100,000.