McLaughlin and Others v Newall: QBD 31 Jul 2009

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.

[2009] EWHC 1925 (QB)
England and Wales
AppliedWestern Broadcasting Services v Seaga PC 29-Mar-2007
(Jamaica) The Claimant was the former Prime Minister of Jamaica. The Defendant was a radio broadcaster which had transmitted a programme said to be defamatory of him. The parties agree a settlement on terms including publication of ‘an apology . .
CitedLissenden v CAV Bosch Ltd HL 1940
The defendant attempted to bar the workman plaintiff from appealing a compensation award on the ground that he had already accepted payment under it.
Held: The House considered the principle that a party may not blow hot and cold on an issue . .
CitedYarmouth v France CA 11-Aug-1887
The plaintiff was employed by the defendant to drive carts. He objected that the horse had a vicious nature, but was obliged to drive it in any event. The horse kicked him.
Held: For the purposes of the 1880 Act, the plaintiff was an employee, . .
CitedAdelson and Another v Associated Newspapers QBD 19-Feb-2008
Complaint was made that an article was defamatory of the owner of Manchester United. The defendant now argued that the game was not worth the candle. The costs vastly exceeded any possible recovery, and it had openly offered vindication, and that . .
CitedExpress Newspapers v News (UK) plc 1990
If summary judgment is given to one party on his claim, it must also be given on a counterclaim made on the same basis by the defendant. The principle that a party to litigation cannot ‘approbate and reprobate’ (or ‘blow hot and cold’) can curtail a . .
CitedBanque des Marchands de Moscou (Koupetschesky) v Kindersley CA 1951
Sir Raymond Evershed MR discussed the need to keep the doctrine against approbation and reprobation within limits. . .
CitedClarke (Executor of the Will of Francis Bacon, Deceased) v Marlborough Fine Art (London) Ltd and Another ChD 5-Jul-2001
Francis Bacon sold his paintings through the defendant agents for many years. The original contractual arrangement grew into a fiduciary one. The claimants asserted that the defendants were in breach of that fiduciary duty, the defendants asserted . .

Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 01 November 2021; Ref: scu.375079