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The Lord Chancellor: I accept that the two words in Amendment No. 24 may not be necessary to the sense

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of subsection (1). There would not be a cause of action unless the statement were defamatory of someone other than the defendant himself. Nevertheless, the words do serve a useful purpose in linking together the provisions of this and the following two clauses, which envisage, first, that the publisher of the statement will address his offer to the other person, the person who has been defamed by it, but has not necessarily issued proceedings so that he or she could be described as the plaintiff; and, secondly, that the acceptance or non-acceptance of the offer will have particular consequences as between the publisher and that other person. So although the words are not strictly necessary for the sense of the clause, they provide a useful link, and therefore I wish to retain them, if the noble Lord is willing to withdraw his amendment in the light of that explanation.

Lord Kilbracken: I also raised the question of Amendment No. 25 and the words "complained of" in line 40. My feeling is that since we have stated in Clause 1(1) that we are talking about the statement complained of, it is subsequently not necessary to define it each time, and therefore the words "complained of" can be left out.

The Lord Chancellor: It may be convenient to answer that point now. Subsection (4) explains what is meant by an offer under the clause. It is an offer to do various things in relation to the statement complained of. The words are necessary for the purpose of identifying the statement to which the offer refers. It is for that reason that I do not feel able to accept Amendment No. 25. One has to specify what it is that one is dealing with, and identify it for the purpose of the offer under the clause.

Lord Kilbracken: I am sure that the noble and learned Lord is right; he always is. However, Clause 2(1) states:

    "A person who has published a false statement alleged to be defamatory",
so that is what we are talking about. Subsection (2) states:

    "The offer may be in relation to the statement generally".
However, when the word "statement" appears again in line 40 on page 2 for some reason we have to put in the words "complained of". I do not believe that that is necessary but it is not a point of earthshaking importance. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

Lord Lester of Herne Hill moved Amendment No. 26:

Page 2, line 41, at end insert ("which shall be made by a joint statement in open court unless the parties otherwise agree").

The noble Lord said: The amendment deals with the power of the court to determine the form of fulfilment of an offer of amends. It is the result of a great deal of concern that has been expressed by newspapers such as The Times in its editorial today, the Financial Times and

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the BBC and other media organisations. They are concerned about how to make the fast track procedure really work in the sense that it will be used in practice. As the Bill is currently drafted, an offer to make amends includes the publication of a correction and apology. If the parties were unable to agree on a suitable correction and a suitable apology, the court would decide the issue under Clause 3(3).

By analogy with Clause 9(3), which relates to the summary of procedure, the court would therefore have the coercive power to specify the terms and the timing of the apology. The power to resolve disputes about the steps to be taken in fulfilment of an offer of amends is already available to the High Court under Section 4(4)(a) of the Defamation Act 1952. However, the defence of unintentional defamation under that Act has proved so unworkable that in practice very few offers of amends have ever been made. Therefore, there has been little opportunity for the courts to exercise their Section 4 powers.

In my view, the Bill rightly seeks in Clauses 2 and 3 to remove the obstacles to the successful operation of the defence of unintentional defamation by means of the creation of the new defence of offer of amends. That is greatly to be welcomed. The new streamlined defence would provide a welcome means of reducing unnecessary litigation while vindicating the plaintiff's good name provided that the procedure was used in practice. The conditions necessary to bring the defence into operation have been amended and that too is welcome. However, the power of the court to make orders dealing with the prominence and wording of apologies and corrections in default of agreement between the parties has not been amended. It is the continued inclusion of that power which is unwelcome to most broadcasters and newspaper editors.

I shall explain why that matters a great deal. An editor or broadcaster confronted with the ultimate prospect of being ordered to give an apology or correct a prominence which he felt was not merited would be most unlikely to be willing to make an offer of any kind. Rightly or wrongly, the threatened loss of editorial sovereignty would be too great. If that is right, the defence will again be little used in practice. If any evidence is needed for that one only has to look at the editorial in today's copy of The Times.

The amendment would alter the focus from an offer to publish an apology or correction to an offer to join in the making of a statement in open court. The power of the judge would be confined to ruling on whether what was said in open court was suitable and efficient as an apology. The statement would come to the attention of the public vindicating the reputation of the plaintiff in two ways. First, the Press Association is, as a matter of routine, present in court when defamation proceedings are disposed of by a statement in open court. The outcome of the hearing is then wired to newspapers and periodicals. Secondly, if the defendant were a newspaper or a broadcaster its respective code of practice would require it to report the outcome of the action. The code of practice of the Press Complaints Commission requires, for example, that a newspaper or

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periodical should always report fairly and accurately the outcome of an action for defamation to which it has been a party.

Clause 2 as it currently stands would allow for a degree of judicial encroachment of a coercive kind that would be regarded as too coercive to make the offer of amends procedure likely to be attractive in practice. My amendment seeks to make the defence of offer of amends workable for both plaintiffs and defendants and to strike a fair balance between their competing interests. I beg to move.

Lord Williams of Mostyn: I share the concern expressed by the noble Lord, Lord Lester of Herne Hill, and the concern expressed on many occasions both recently and earlier by editors and those who control the contents of broadcast and televised matter. I do not believe that the amendment will deal fully with the mischief that the noble Lord wishes to avoid because it seems to me that his present amendment leaves it open to a joint statement in open court unless the parties otherwise agree. That may well mean that in default of agreement the full offer of amends cannot be acceptable and therefore will not be accepted. But I wholly agree with the fundamental principle. It is wrong as a matter of principle to dictate to the editor of a newspaper or periodical or to the editor or the director of a broadcast item to include televised material, a form of apology which may not be wholeheartedly meant. That is an undue interference with the freedom of the press. I believe that it will vitiate the value and the effectiveness of the offer of amends procedure. I do not believe that the present amendment deals fully with the mischief.

The problem is not restricted to this jurisdiction. There have been serious difficulties in South American countries--for instance, Argentina--which are feeling their way towards a free press after many years of totalitarian dictatorship and interference with the press where editors violently object as a matter of principle to directed corrections or apologies with which they do not concur. Therefore, I believe that in principle the thrust of the amendment is right and I believe that in practice if something is not done by way of useful amendment the procedure will not be used by many newspaper editors when it ought to be.

Lord Elton: Perhaps I may ask my noble and learned friend whether under this or any other construction it would be possible to offer the reluctant editor the alternative of paying a suitably increased financial compensation. I see the difficulty of getting a free press to make an apology which is not sincere. Equally, I see the importance of protecting the victims of press unfairness who are numerous and at present too inadequately defended. I see that the courts should throw their protection over those people and I wonder whether that is a way of squaring that circle.

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The Lord Chancellor: I agree that there is a problem in relation to forcing an apology from someone who does not wish to make an apology. I certainly do not wish to do that and we have tried to meet the point in the wording of Clause 9. It states:

    "If they cannot agree on the content, the court may direct the defendant to publish or cause to be published a summary of the court's judgment agreed by the parties or settled by the court in accordance with the rules of court".
That is intended to deal precisely with the situation where a party does not wish to apologise because he believes that he was right in the first place but cannot prove it. Therefore, he is likely to have been found liable but does not wish to make an apology. Therefore, we have substituted for an enforced apology a judgment of the court on the outcome to be agreed by the parties or, failing agreement, to be settled by the court. I believe that that deals with that point.

I have read carefully, as I always do, the leaders in The Times. I have thought about the ITN broadcasts which will start with a "bong". I have not yet heard one of those but I am sure that The Times will anticipate the future in a way that I cannot. However, I do not believe that this amendment deals with that point. We have not yet reached the amendment which deals with that point. The answer to the "bong" editorial, if I may call it that, is to be found at the third paragraph of Clause 9(2), which states:

    "If they cannot agree on the time, manner, form or place of publication, the court may direct the defendant to take such reasonable and practicable steps as the court considers appropriate".
The use of the words "reasonable" and "practicable" are intended to guard against the scenario which one finds in the leader in The Times.

Of course, it is possible to take the view that the court would act unreasonably or impracticably, but I am not prepared to take that view. The judges would take account of the particular conditions set out in Clause 9. However, this amendment does not directly address those matters and therefore I should have thought that it restricts the scope of an offer to make amends. I cannot see why it needs to take the restricted form which the amendment proposes. An essential element of the offer, which has been accepted, would be missing if the parties were unable to agree.

There is a question of precisely what the formulation should be. I should be the last to want to have a system which would not work for one reason or another. So far I have accepted the essence of the point made by the noble Lord, Lord Williams of Mostyn, and have tried to deal with it in the form of words which I used in Clause 9(2). It may be that something more needs to be done. I shall be happy to consider that because I want this to work. It is a question of whether it needs to be restricted to a statement in open court.

8 p.m.

Lord Hoffmann: I am not sure whether the noble Lord, Lord Lester, is speaking also to Amendment No.

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36 and subsequent amendments. If he is not, I shall wait until we reach that point before giving the Committee the remarks that I wish to make about them.

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