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.
