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Mclaughlin and Others -v- Newall QBD - 31-Jul-09 - Defamation - Litigation Practice
The claimant asked the court to strike out the defence that the claimant had compromised his claim by agreement. The defendant had written letters critical of the claimants who were governors of a school which had disciplined his daughter a teacher there. The claimants said that in pleading justification, the defendant set aside the basis of the compromise agreement, and that the terms of any apology not being settled, no compromise had been achieved.
Held: Though it is not an absolute rule, the terms of the apology were necessary.
"There are two main reasons why express agreement on the actual words of the apology will generally be essential and crucial, rather than subsidiary and peripheral. First, the principal objective of most defamation actions is the protection and restoration of the Claimant's reputation, and an appropriately-worded apology is the clearest and most effective means of achieving this goal. Second, it is well known to everyone who has practised in this area of law that the negotiation of the precise words of the apology is one of the most delicate and precarious parts of any settlement, since the honour and pride of both parties are involved, and the disputed wording often assumes greater importance than the observer would regard as rational. To leave the apology to the last is to store up trouble."
Here the defendant's solicitors had made the compromise expressly dependent on the agreement of the terms.
The answer was in the doctrine of election: " If a party has formally elected between one of two incompatible courses in litigation, the court will not allow him also to run the alternative and inconsistent case. " But no election had yet been made. The defendant had no prospect of defending on the basis of there being an agreement in place.
7 case(s) cited.
[2009] EWHC 1925 (QB) 31-Jul-09 Bailii Link
Case law from lawindexpro