A soldier who was incorrectly identified as her non-identical twin sister (who was tried over the tragic death of a seven-year-old girl) received a public apology at the High Court last week. Lance Bombardier Kerry-Ann Morris commenced proceedings last year for a determination of the amount to be paid in compensation and in costs after the acceptance an Offer of Amends from the Nottingham Post. The matter settled before a hearing took place and a Statement in Open Court [pdf] was read before Warby J on 21 June 2016.
Lance Bombardier Morris is a serving soldier in the British Army, stationed in Germany when her seven year old niece tragically died whilst in the care of her mother and twin sister. Lance Bombardier Morris moved out of her home aged sixteen to live in a women’s hostel, having suffered extensive physical and emotional abuse at the hands of her mother. She pursued her goal of joining the British Army, succeeding in 2011, and has since been the face of the Army Equality and Diversity campaign, and represents the Combined Forces in athletics.
Lance Bombardier Morris gave evidence for the prosecution in the criminal trial of her mother and twin sister in April 2015. A photograph taken outside court of Lance Bombardier Morris was mistakenly identified as her twin sister, against whom she was testifying on the charges of murder and child cruelty. The photograph featured in an article in June 2015 entitled: “Shanay Walker death: So who IS to blame?”
The defendant accepted the claimant’s meaning which was that the combined article and photograph is that the Lance Bombardier Morris was tried for murder of a young child in her care and convicted of cruelty to that child. The article caused the claimant very considerable upset and had a knock-on effect on her ability to work and train to the best of her abilities.
Local World Limited (Trinity Mirror) acknowledged its mistake and removed the incorrect photograph from its website. It then made an unqualified offer of amends and published an agreed apology online at the end of August 2015. Compensation was agreed for the considerable reputational harm, distress and hurt caused to LBDR Morris.
Law – Offer of Amends and Statement in Open Court
The offer of amends procedure was introduced by Defamation Act 1996 sections 2 to 4. An offer of amends is an opportunity for the publisher to make and publish a suitable apology and correction and pay the aggrieved party such compensation and costs as may be agreed. An offer of amends can be made before or after service of proceedings, but must be made before service of a defence. The main purpose of the procedure is to encourage and enable defamation claims to be more swiftly and economically resolved where a defendant recognises liability and is willing to make reasonable reparation.
An offer can be qualified or unqualified. Where the offer is unqualified, the offeror accepts that the article bears the meaning attributed to it by the claimant (or potential claimant), and that it was defamatory. The offer must be to make a suitable correction and a sufficient apology published in a reasonable and practicable manner, and to pay such compensation and such costs as may be agreed or determined.
If the offer is not accepted it is a complete defence (in the case of a qualified offer it is a defence in respect of the meaning put forward in the offer) unless a claimant can show that the offeror published maliciously. If the parties cannot agree on the appropriate level of compensation, a Part 8 application can be made for this to be determined by a judge. An early apology and offer of the amends can attract a discount in damages of up to 50%, taking into account the suitability of the correction, the sufficiency of the apology and the manner of publication (e.g. Cairns v Modi; KC v MGN Ltd  EWCA Civ 1382).
A claimant can apply to the court for permission to read a statement in open court. A statement in open court is often a valuable endpoint to litigation brought to achieve vindication, enabling more publicity to be given to a settlement than might otherwise occur. Statements should be fair and proportionate and not misrepresent a party’s case or the nature of the settlement. A statement in open court is not a balanced statement by the court, and so it is not expected to explain the grounds of defence in any detail.
The case of Webb v Lewis Silkin LLP, confirmed that the principles applying to statements in open court in defamation cases also applied for those statements read for privacy cases.
This case reinforces the principles of journalistic accuracy. Whilst not ground-breaking new law, it demonstrates the power of the media, and the potentially disastrous effect on an individual of a one-word error in a publication. When considering the seriousness of the harm caused, emphasis was placed on Lance Bombardier Morris’ reputation at work and within the Nottingham community.
In this instance an apology was published, almost two months after the libel and after the press attention on the outcome of the criminal trial had subsided. One can consider some instances, for example, Cooke v. MGN  EWHC 2831 (QB) where the removal or amendment of the article and the publication of a prompt apology may go towards reducing the serious harm to the extent that the section 1(1) Defamation Act 2013 threshold is not met. Mr Justice Bean noted the accessibility of such apologies now that they tend to be published online; there is little risk now of them not being seen by the original reader, a very real possibility with print media.
Whilst defamation cases involving mistaken identity are not uncommon, there are no reported defamation cases involving mistaken identity as between twins. Reported statements in open court demonstrate how damaging cases of mistaken identity can be: in 2005, the Sunday Mirror paid £100,000 in an out of court settlement with a man they had mistakenly identified as a rapist through publication of the wrong photograph; in 2007 the Daily Mail wrongly identified a photograph of martial arts champion Lee Banda as Lea Rusha, the alleged brains behind the £53m Securitas heist. However, the lack of available information about offer of amends cases, which do not always result in a statement in open court or publicity, mean that information and statistics about the regularity of these errors, out of court settlements and compensation payments are very limited.