Every element of a process designed to avoid expensive defamation trials must be followed otherwise it cannot take effect, the High Court has ruled. The ruling may result in a case of internet message board libel going to court.
The Defamation Act contains a process called the 'offer of amends' which is designed to encourage settlement of defamation cases without going to trial, which can be expensive and unpredictable.
The case involved a message board posting by Craig Powell regarding a boat he purchased from SD Marine Ltd. The boat, called Artemis, needed some work done to it before delivery to Powell which SD Marine agreed to do.
Powell claimed that the work had not been done satisfactorily and is pursuing a case in the county court system against the company. In the meantime, though, Powell posted messages on the Yachting & Boating World website message board about his experiences.
Headed 'SD Marine – Honest Brokers or back street cowboys', the original post has been lost because it was deleted within 40 minutes of being posted. Powell said it detailed his experiences with the company and asked whether other boat owners had had similar experiences.
Powell posted a second message which carried the same heading but made no direct reference to SD Marine.
On the day of the postings Powell was contacted by a solicitor acting for SD Marine and asked to remove the posting on the basis that it was false and defamatory. Powell asked the website owners to take the posting down, which they did.
In discussion with the solicitor, Powell, who acted for himself throughout the events, said that he would make an offer of amends under Section 2 of the Defamation Act.
This is a formal process by which a case can be quickly settled. It has a number of strict conditions, including that an offer must involve a preparedness to pay any costs and damages agreed by the parties. The law says that an offer must represent a willingness to do all the things contained in it, including the payment of those sums, and not just some of them.
Eventually the solicitor for SD Marine accepted that offer. The case before the High Court was a dispute about whether or not an offer had been made. If it had then SD Marine would be able to enforce it. If not, Powell would be free to defend his words in court on the basis of justification.
Justice Eady found that an offer had not been made because not all of the conditions of the offer had been met by Powell, whose layman's understanding of the law meant that he had not made an offer that was technically sound.
The case hinged in part on Eady's interpretation of the email which first represented Powell's offer. "[The email] is plainly rather confused in certain respects, and the question arises whether it can be interpreted as including an unequivocal offer of amends within the meaning of the statute," said Eady in his judgment. "It can be noted, first, that the offer appears to have been defined as being only '… to publish the retraction and apology in the terms drafted below which will be posted on the Yachting Monthly website for 3 days'. That is confusing."
Eady said that he believed that even SD Marine's solicitor, a Mr Marsh, did not believe it was a binding offer. "It seems clear that Mr Marsh was doubtful, despite the Defendant's express reference to s.2 of the Act, as to whether he truly was intending to make an unequivocal and unqualified offer in accordance with that regime."
"I infer that Mr Marsh must have known that the Defendant did not intend to commit himself to a binding agreement in relation to the first posting – let alone the second," said Eady. "It is no answer to rely on the mantra that he had received, or been recommended to obtain, 'legal advice'. In fact, he appears to have had no more than an informal chat. In any case his written communications speak for themselves."
"The application has been decided on the footing that, objectively judged, there had at no stage been an offer which fell within the terms of the 1996 Act," said Eady.