Reputation, both personal and business, has always been everything, but no more so than in today's social media savvy world, where scrutiny and commentary is widespread with many topics being 'open season'.

When something goes wrong or where blame and liability might attach, the natural instinct can be to bunker down; to adopt a strategic defensive position.

An inherent reluctance or fear to apologise is common place for many reasons, not least concerns that saying 'sorry' will:

  • be seen as an admission of guilt, and therefore of legal liability
  • prejudice any related insurance claim
  • invite criticism, causing further reputational damage

These are indeed relevant concerns. Yet businesses are getting better at this; understanding the importance of being seen to take responsibility. In appropriate circumstances (and always with the benefit of proper advice as to legal liability and insurance risks) the power of an early and genuine apology cannot be understated.

Likewise in defamation. In today's world, things are said and written and on occasion, with the benefit of hindsight, the author may rather wish he or she could turn the clock back, especially where a claim is threatened that looks set to become protracted. Unable to do so, the author may instead want to 'fix' the problem before the case escalates.

The Defamation Act 1996 provides for this. It contains an 'offer of amends' procedure which allows a Defendant to make an offer to make a suitable correction and apology and pay costs and damages as agreed or determined, to bring matters to a swift resolution thereby avoiding protraction and legal costs. Effectively the offer, if accepted, brings the case to a halt other than to assess the damages and costs. The offer of amends is then taken into account when assessing damages. This will not be suitable for every case; difficult judgments can be involved. But the procedure to apologise is there, and recent cases have illustrated how it works.

In Lisle-Mainwaring v Associated Newspapers Ltd and another [2017] EWHC 543 (QB) general damages (payable for injury to reputation) were reduced by 40% (£90,000 to £54,000) on account of an offer of amends having been made and accepted. The case concerned newspaper articles which impugned the integrity of the claimant.

Conversely, in Monroe -v- Hopkins [2017] EWHC 433 (QB) the judge was critical of the defendant for the fact that there had been no offer of amends, observing that 'There could have been an offer of amends under the Defamation Act 1996. Such an offer attracts a substantial discount: up to half if the offer is prompt and unqualified. Such an offer would have meant the compensation would have been modest. The costs would have been a fraction of those which I am sure these parties have incurred in the event.'

He awarded the claimant £24,000 damages and costs, with £107,000 to be paid on account. At the time of writing, it is understood that the defendant is likely to appeal.

The value of an apology

These two cases illustrate, in a defamation context at least, the impact of an apology and offer of amends, or conversely the lack of one.

Both in defamation cases and beyond, however, the giving of an apology in any case involving possible liability or guilt is a difficult judgment call and warrants careful consideration and professional advice.