Tesco was again back in the news this week but it concerned defamatory comments and a claim against the Guardian. If you are the victim of defamatory comments and you are not satisfied with the apology, Sections 2 to 4 of the Defamation Act 1996 provide for your opponent to make an offer of amends – that is, an open offer to pay costs and damages, with an apology. It is wise to seriously consider this as if the offer is not accepted, you may only recover damages through the courts if it can prove malice on the part of the defendant. The main reason is to seek to bring the litigation to a speedy conclusion. This is particularly so where the defendant has made clumsy or unintentional comments. While the Act does not specify a time limit to accept it must be done within a reasonable time as His Justice Eady made clear in Tesco Stores Ltd v Guardian News & Media Ltd and anor (29 July 2008).
Whatever is deemed reasonable will be determined by the facts but a two month period was considered to be reasonable and could not be used as an open offer while seeking to establish malice.