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Lord Lester of Herne Hill: My Lords, I am extremely grateful to both speakers. I am grateful to the noble Lord, Lord Williams of Mostyn, for his strong support and I am most grateful to the noble and learned Lord the Lord Chancellor for being so alive to the problems that have been raised and so open-minded about possible solutions.

I shall deal first with Amendment No.1. I should like to clarify the fact that I do not believe I said that I was concerned about the misuse of judicial power; indeed, I am concerned that the power itself, properly used, would be regarded as coercive and that it would result in the media not making sufficient use of the procedure because they would see, rightly or wrongly, the court's function as usurping their role. However, I am most encouraged by the response of the noble and learned Lord as regards the need, if possible, to find a solution

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which strikes a fair balance. I am certainly not wedded to the particular form of words set out in the amendment.

I turn now to Amendment No. 17. I should point out that I have no direct professional interest to declare, unfortunately, because I have not acted for a newspaper or for either man known as Mr. Watts. I listened to the noble and learned Lord the Lord Chancellor and he has persuaded me, subject to any afterthoughts, that it would be very difficult to accept my amendment without creating the further problem that he described. I refer, for example, to the problem that, in such a situation, a journalist would then be aggrieved but would have no remedy against the newspaper which had cast the blame upon him. Of the two amendments, the first one is far more important because it goes to the very heart of the procedure. I beg leave to withdraw the amendment, but I shall return to the issue at a later stage.

Amendment, by leave, withdrawn.

7.45 p.m.

Lord Williams of Mostyn moved Amendment No. 2:

Page 3, line 12, leave out ("not").

The noble Lord said: My Lords, there are several amendments tabled in my name this evening. If I may, I propose to adopt the same approach to all of them and simply raise the questions fairly briefly, because many of them were fully traversed on the last occasion. Moreover, it is not my intention to press any of my amendments to secure the feeling of the House.

Amendment No.2 relates to Clause 2(5) which says:

    "An offer to make amends under this section may not be made",
after the service of,

    "a defence in defamation proceedings".
The present mechanism for making an offer to make amends is almost wholly unused. As I understand it, the principle behind the improved mechanism is that those who wish to compromise--that is, defendants who are defamers--should be encouraged to do so. Therefore, it seems to me to be inconsistent and wrong that the mere service of a defence in defamation proceedings debars a defendant defamer who sees the light, who makes further investigations and who realises that what he has done is wrong, from using the mechanism of the offer to make amends. It may or may not be appropriate in every circumstance; indeed, it might be reasonably refused. Nevertheless, the opportunity ought to be there and I respectfully beg to move the amendment.

Lord Lester of Herne Hill: My Lords, I strongly support the amendment. I do not believe that it is necessary for me to declare any particular professional interest. However, as someone who has acted for newspapers which find that they have made mistakes, I can only say that the ones who find a way out (which will vindicate the plaintiff without the expense and agony for both sides of a trial) are at present driven, many times against their will, either to pay wildly excessive damages--in other words, to throw money at the problem unnecessarily and unjustly--or to go to trial with all that that implies. Anything that could be done

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to extend the procedure beyond the very early stages of the process seems to me to be extremely desirable. Indeed, the more that we can make the procedure work properly the better. As I said, I strongly support the amendment. I very much hope that there can be flexibility in the area so as to make the procedure somewhat attractive, not just in the very short space of time when the proceedings are originally launched.

The Lord Chancellor: My Lords, it is certainly quite desirable to have a degree of flexibility. But, on the other hand, the procedure is designed to deal with the matter expeditiously at the start of the proceedings. Indeed, one of my advisers has described it as a quick "hands up" way of curtailing the proceedings. It is not designed for later stages and, therefore, I find it difficult to accept the view that we should allow it to be used at any time, as would be the effect of removing the word "not" from the subsection. As I understand it, it would simply make the provision available at any stage in the proceedings.

As the noble Lord, Lord Lester of Herne Hill, said, defendants may realise at some stage in the course of the proceedings that they have made a mistake and may realise that they should not have lodged defences. Well, mistakes sometimes have an effect. In such a situation it is still possible for them to settle, although the terms of settlement may be rather different from what they would have been if they had not lodged the defences in the first place.

The special machinery provided in Clauses 2 to 4 is neither needed nor intended as a substitute or alternative formal procedure for cases that have reached the stage of defences having been lodged. It is designed to provide immediate amends avoiding all the trouble and expense of conventional proceedings where the defendant comes forward at once ready to minimise and make up for the harm he has done. This has advantages for both sides in achieving a mutually satisfactory outcome quickly and cheaply. The plaintiff knows that proper amends will be made without his having to go through an action, and the defendant knows that the steps which he will have to take once he has committed himself to an offer will be reasonable.

The question is why the machinery should not be made available to cut short proceedings which have already gone further down the line, since the lack of immediacy could be reflected by a larger award. There would, I think, be dangers in this. If we try to give the same advantage to the honourable defendant who has been misled by his sources or advisers as to those who have immediately admitted their wrong, advantage could also be taken by those who were less "honourable" and simply did not bother to make appropriate inquiries before deciding to contest the claim or saw the machinery as a useful fall-back to guarantee that they would never have to face a full trial even if the plaintiff was not intimidated by the pleaded defences.

It was suggested on the previous occasion--and I think it is implicit in what was said tonight--that defendants may need more time to make their decisions before lodging defences. Of course there will be

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flexibility in that. A defendant who has had time to decide to contest the claim on the basis of a particular defence has also had time to make the inquiries on which that decision is based. However, it is right to consider the interaction which this new machinery will have with the new provisions for summary disposal. Under Clause 10 there is an express power to make special rules as to summary disposal. These may include modification of the rules usually governing the timetable for serving pleadings and authorising the court to require a defendant to elect, at or before the summary disposal hearing, whether to make an offer to make amends. In practice, therefore, the defendant may have rather longer to make his inquiries and make his election than if the standard timetable applied.

Therefore I believe that there is an opportunity in the procedures which we are introducing to give defendants a longer time to make their decisions than perhaps exists at the present moment. I believe that is a better type of flexibility to introduce than to allow this procedure to be used after defences have been lodged, when it is a procedure which is really designed to avoid the necessity of a case going that far. I hope that that will meet the type of flexibility that is asked for, and that therefore the noble Lord will feel able not just to withdraw his amendment but to feel reasonable satisfaction that the point is properly dealt with.

Lord Williams of Mostyn: My Lords, I shall certainly not press my amendment, but with great respect to the noble and learned Lord the Lord Chancellor, I do not think that he has dealt with the matters that I and the noble Lord, Lord Lester of Herne Hill, have addressed. A quick "hands up" has its virtue but it would often be brought about after the issue of a writ. Even if the Bill becomes an Act and reduces the limitation period to 12 months, the "hands up" will not necessarily be quick. Speed and shorthand have their value but that is not an overwhelming value. I say with great respect to the noble and learned Lord the Lord Chancellor that the purpose of this offer of amends procedure is to produce settlement not trial, certainty not uncertainty and, as the noble and learned Lord said, to avoid trouble and expense. If there is an easy mechanism available to defendants who find themselves to be in the wrong, why should it not be available? Not all newspapers are ignoble in what they print. Some of them simply honestly get things wrong. Sometimes their sources are not, in the end, reliable. Sometimes further documentation or evidence will come to hand. A defendant is obliged on the rules to serve his defence fairly promptly and it seems a folly to disentitle him from this relief, which may, of course, be a disadvantage from the plaintiff's point of view also. Having said that, and indicating generally that I may well want to return to these matters yet again, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Failure to accept offer to make amends]:

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