Defamation in Scots law: consultation

Part Five: Offer to make amends

122. The focus of this chapter is on the offer of amends remedy available in defamation proceedings.^[63]

123. Sections 2 to 4 of the Defamation Act 1996 set out a settlement process. This allows those who accept liability for a defamatory statement to avoid court proceedings by acknowledging their error and offering to make amends, so long as the offer is made before a defence has been lodged in a court action. Such a procedure offers efficiency by reducing the expense of raising an action and improves access to justice for the individual defamed because it reduces the time in which they need to wait in order to obtain vindication of their reputation. For the defender who cannot put forward a substantive defence, the procedure provides an alternative path to resolution of the dispute. The court is able to enforce the terms of settlement including, where necessary, determining the level of compensation.

124. The publisher of an allegedly defamatory statement can make an offer of amends and the offer may either be in relation to the statement generally or in relation to a specific defamatory meaning which the person making the offer accepts that the statement conveys (known as a qualified offer).

125. If the offer is accepted the pursuer may not bring (or continue) defamation proceedings in respect of the publication concerned against the defender, but they are entitled to raise proceedings in court in order to enforce the offer to make amends.^[64]

126. There is no period laid down in statute within which an offer to make amends must be accepted (or rejected), but the legislative policy behind the procedure is clearly to encourage early settlement of claims. During the reform project, the Commission received responses to the effect that the offer to make amends procedure has been useful in practice, thereby facilitating the early settlement of disputes.

127. It was pointed out by some that the interaction between the offer of amends procedure and the threshold test of serious harm could undermine the aim of settling disputes early. The argument put forward by these respondents is that in making an offer of amends the defender is at the same time admitting that there has been serious harm to the reputation of the aggrieved party. If this were the case, the defender would be denied the opportunity to make pleadings on this issue were court proceedings raised. If the view was taken that an offer to make amends is an admission of serious harm, then in marginal cases the procedure may not encourage alternative means of dispute resolution, and could instead incentivise court actions.^[65]

128. Against this discussion we ask the following question:

18. Should it be made clear that an offer of amends is made without admitting that a threshold test has been met?

Summary of recommendations

129. The following is a list of the Commission’s recommendations relevant to Part Five of this consultation paper:

31. The offer of amends procedure should be incorporated in a new Defamation Act.

32. There should be a statutory provision to the effect that an offer of amends is deemed to have been rejected if not accepted within a reasonable period.