Atkinson v Fitzwalter
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE PARKER,LORD JUSTICE STOCKER |
| Judgment Date | 31 July 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0731-2 |
| Docket Number | 86/0707 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 1986 |
and
[1986] EWCA Civ J0731-2
Lord Justice May
Lord Justice Parker
and
Lord Justice Stocker
86/0707
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Pain)
Royal Courts of Justice
MR. CHARLES GRAY, Q.C. and MISS ADRIENNE PAGE (instructed by Messrs Ward Bowie; London agents for Messrs Foster Baxter Cooksey, Willenhall) appeared on behalf of the Appellant/Plaintiff.
MR. RICHARD HARTLEY, Q.C. and MR. RICHARD RAMPTON (instructed by Messrs Goodman Derrick & Co.) appeared on behalf of the Respondents/First and Second Defendants.
This is an appeal with leave from orders of Mr. Justice Peter Pain made on 16th April 1986 standing the case out of the Jury List, in which it would shortly have come on for trial, and at the same time granting an application by the defendants for leave to amend their defence. On this appeal, the latter seek to have the order granting such leave set aside and the action tried as soon as practicable, if possible before the end of the current term.
The plaintiff is a dentist practising in Coventry and he was referred to in a "World in Action" programme in terms which he claims to have been defamatory. The programme was about the very high level of fees said to have been earned by some dentists in the National Health Service and the way in which such dentists managed to do so. The libel alleged in paragraph 4 of the statement of claim was that the words used referring to the plaintiff in the television programme, which was transmitted by the second defendants and of which the first defendant was the editor, meant and were understood to mean:
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"(1) That the plaintiff deliberately and cynically performs unnecessary dental work on his patients;
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(2) That the plaintiff extorts from the N.H.S. substantial amounts of money for unnecessary work and for work that has not in fact been performed;
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(3) That the plaintiff is one of the most notable examples of a small minority of dentists who enjoy a luxurious lifestyle financed by such practices;
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(4) That the plaintiff is guilty of gross professional misconduct;
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(5) That the plaintiff is guilty or is reasonably suspected of being guilty of defrauding the N.H.S. and his patients;
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(6) That the plaintiff is deliberately damaging his patients' teeth for his own financial gain."
The original defence served on 16th October 1984 merely denied that any words used in the television programme referred or were understood to refer to the plaintiff save in so far as he was expressly mentioned by name and that, where he was, such words were in their natural and ordinary meaning not defamatory of the plaintiff. The action proceeded with admirable rapidity. The Writ was served on 9th August 1984 and by 14th January 1985 the action had been set down for trial. The plaintiff gave the defendants notice of this the following day. By April 1986 the case was in the Jury List for that term and was likely to be reached. The defendants' application to the learned judge, if allowed, meant that the action was unlikely to be heard before next October at the earliest.
It appears from an affidavit sworn by the defendants' solicitors in support of the application for leave to amend the defence that the defendants have always felt, and indeed still feel, that their television programme was not defamatory of the plaintiff. Nevertheless there was always the risk that the plaintiff might succeed in persuading the jury otherwise at trial. It should be remembered that although it was not expressly alleged in the programme that the plaintiff had been amongst those dentists who, in obtaining high incomes from the National Health Service, had broken the rules, nevertheless he was referred to as a high earner and it was clearly this class of dentist which the programme set out to criticise. However it is counsel's duty, as in cases of fraud, not to put a plea of justification on the record unelss he has clear and sufficient evidence to support it. In the present case, after the writ and statement of claim had been served, the defendants set about substantial enquiries concerning the plaintiff and his dental practice and counsel was asked to advise whether the material which had been obtained would support such a defence. In the event, it was not until July 1985 that counsel was in a position finally to advise that a defence of justification was available and to settle an amended pleading raising that plea. An amended defence alleging justification and fair comment in the terms which were before the learned judge and were sought to be supported before us was not in fact ready until 11th September 1985.
At this point the defendants' solicitor erroneously formed the view that the action was dormant and with counsel's concurring advice decided that it was better for the time being to let sleeping dogs lie. As the learned judge pointed out in his judgment, it is extremely difficult to understand why the defendants' solicitor did form this view, because not only had he been told by the plaintiffs that they had set the matter down, but he had repeated that information to his lay clients. In his affidavit he accepted that he had made a mistake. He had overlooked the true position and sought counsel's advice on the wrong basis. The learned judge came to the conclusion that although it was clear that in this respect the defendants' solicitor had blundered, he had not acted improperly.
The learned judge then referred to passages from the judgments of Lord Denning, M.R. and Lord Justice Edmund Davies in this court in Associated Leisure Ltd. v. Associated Newspapers Ltd. [1970] 2 QB 450. That was also a case in which at a late stage defendants to a libel action sought leave to amend their defence, theretofore comprising a mere general denial, to plead justification and fair comment. In his judgment, at page 455, Lord Denning referred to the well settled principle that an amendment ought in general to be allowed, even if it comes late, if it is necessary to do justice between the parties, so long as any hardship done thereby can be compensated in money. Lord Justice Edmund Davies expressed a similar view when he quoted the classic words from the judgment of Lord Justice Bowen in Cropper v. Smith [1884] 26 Ch.D. 700 at page 710:
"I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace….. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right."
Just before this, Lord Justice Edmund Davies had himself said:
"These courts are here to administer justice. The concept of justice is not confined to the interests of the particular litigants; it embraces and extends to the protection of the public weal. The issues involved in this litigation have an importance of direct concern to the community."
Relying upon these principles the learned judge in the instant case concluded that he ought to allow the amendment sought if any prejudice that this might cause to the plaintiff could be compensated for in money. Indeed counsel who appeared for the plaintiff below conceded that had the application for amendment been made in September 1985, she could hardly have resisted it.. Having considered the question of prejudice, the learned judge in fact concluded that the scales came down heavily on this point in favour of the defendants and that therefore he ought to and did allow the amendment.
In seeking to challenge the learned judge's decision, counsel for the plaintiffs in effect took four points before us. First, he referred to another passage from Lord Denning's judgment in the Associated Leisure Ltd. case to this effect:
"But when the defendant seeks to plead justification at a late stage, his conduct will be closely enquired into. The Court will expect him to have shown due diligence in making his inquiries and investigations. The court may well refuse his application if he has been guilty of delay or not made proper enquiries earlier."
Counsel submitted that on the material to which I have referred and in all the circumstances of this case the learned judge had been wrong to reach the conclusion he did, as to the circumstances in which it came about that the application for leave to amend was not made until that very late stage.
Secondly, counsel submitted that a plea of justification, in particular the one sought to be made in the instant case, in truth raised an allegation of fraud and on general principles an amendment to allege fraud should not be allowed where this has not been pleaded in the first instance. He referred us to the note 20/5–8/22 on page 346 of the Annual Practice for 1985 and to the various cases there mentioned. I shall consider these later in this judgment.
Thirdly, counsel contended that the particulars in the plea of justification sought to be set up did not, when analysed, in truth go to the real sting of the alleged libel, namely that the plaintiff had been guilty of defrauding the National Health Service.
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