Brenda Mary Brown v AB
| Jurisdiction | England & Wales |
| Judge | Mr Edward Pepperall |
| Judgment Date | 21 March 2018 |
| Neutral Citation | [2018] EWHC 623 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No. D90 BM138 |
| Date | 21 March 2018 |
[2018] EWHC 623 (QB)
Mr Edward Pepperall QC
SITTING AS A DEPUTY HIGH COURT JUDGE
Case No. D90 BM138
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Mr Graham Howard (instructed by HCB Solicitors Ltd) for the Claimants
Mr Robert Gamson (solicitor) for the Defendant
Hearing dates: 10 January & 2 February 2018
Judgment: 21 March 2018
Mr Edward Pepperall QC:
The Claimants, Dr Ernest and Mrs Brenda Brown, are the founders and proprietors of Maple Hayes Hall, a specialist school in Lichfield for dyslexic children and children with special educational needs aged between 7 and 17. Their son, Dr Daryl Brown is the head teacher.
The Claimants claim an international reputation as a centre of excellence for the education of dyslexic children. Drs Ernest and Daryl Brown are the co-authors of a book entitled “Meaning, Morphemes and Literacy.” Dr Brown senior has presented at international conferences as an expert in his field.
The Defendant, AB, is the mother of a former female pupil. Her daughter, X, attended the school between September 2012 and April 2016.
While there are other allegations, this case is primarily concerned with an incident that happened in the school dining hall on 10 February 2016. It is common ground that it involved Mrs Brown and Ms B's daughter. By this claim, Dr and Mrs Brown claim that Ms B has falsely and maliciously published statements between 2 March and 31 May 2016 that Mrs Brown verbally abused and beat X with a walking stick.
The Claimants' version of events is that Mrs Brown “gently tapped the child in order to attract the child (sic) attention”: Particulars of Claim, para. 18. Ms B says that it was not a tap, but a “poke hit” to the child's back: Defence, para. 2(c); Draft Amended Defence, para. 19(i).
There are three applications before me:
6.1 The Claimants' application: On 18 September 2017, the Claimants applied to strike out the Defence pursuant to r.3.4(2)(a) of the Civil Procedure Rules 1998. In the alternative, they sought summary judgment.
6.2 The amendment application: By an application notice dated 15 December 2017, the Defendant sought permission to amend the Defence.
6.3 The Defendants' strike-out application: By a further application notice dated 15 December 2017, the Defendant applied to strike out “most of the Claimants' claims”; alternatively, she sought summary judgment.
The applications came before me on 10 January 2018. At the outset of the hearing, Mr Gamson sought my permission to address the court. He is a solicitor but does not have higher rights of audience to appear before a judge in the High Court. He had believed that the applications were to be listed before a district judge. I granted permission for him to address me on these applications but made plain that he should not assume that he would be given permission to do so again.
There was insufficient time on 10 January to hear all three applications, but I did hear argument on the amendment application. I took that matter first since, in my judgment, it was essential that the court should determine which statements of case were in play before turning to whether they should be struck out or summary judgment entered. At the conclusion of the argument on 10 January, I indicated that I would in principle allow the Defendant to amend her Defence but that I was very concerned by the prolixity of the then current draft. I therefore directed that Mr Gamson should take a red pen to the Amended Defence and reduce its content as much as possible.
I expressly indicated that at the adjourned hearing I would hear Mr Howard as to whether:
9.1 the Defendant should be permitted to withdraw admissions that Mr Howard contended had been made in the original Defence; and
9.2 the court should strike out all or part of the draft Amended Defence on the grounds that it was unnecessarily prolix.
Subsequently, Mr Gamson lodged a red-line version of the Amended Defence. I heard the strike out and summary judgment applications on 2 February 2018.
THE AMENDMENT APPLICATION
In the unreported case of Cobbold v London Borough of Greenwich, 9 August 1999, Peter Gibson LJ said:
“The overriding objective is that the court should deal with cases justly. That includes, so far as practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party or parties caused by the amendment can be compensated for in costs, and the public interest in the efficient administration of justice is not significant harmed. I cannot agree with the judge when he said that there would be no prejudice to Greenwich in not being allowed to make the amendments which they are seeking. There is always prejudice when a party is not allowed to put forward his real case, provided that that is properly arguable.”
The editors of the White Book correctly caution, at para. 17.3.5 of the 2017 Edition, against the fallacious argument that might arise from a misreading of Cobbold to the effect that amendments should always be allowed where there is prejudice to the party seeking the amendment. As Peter Gibson LJ made clear, such prejudice must of course be balanced against the prejudice to the other party and the court must exercise its discretion in accordance with the overriding objective.
Where a party seeks to make a late amendment at or close to trial that would be likely, if granted, to cause the trial date to be lost, then there may of course be significant prejudice both to the other party and to other court users. In such cases, there is a heavy onus on the applicant to justify the late amendment (see, for example, Worldwide Corporation Ltd v GPT Ltd, (CA) 2 December 1998, unreported, and Swain-Mason v Mills & Reeve [2011] EWCA Civ 14; [2011] 1 W.L.R. 2735). This is not, however, such a case:
13.1 The claim form was issued on 27 June 2017. It was accompanied by fully pleaded Particulars of Claim.
13.2 The Defence was served on 24 July 2017.
13.3 The first of the applications before me was filed a few weeks later on 18 September 2017 and the case has not yet been listed for a case management conference.
13.4 Accordingly, there has not yet been disclosure or exchange of witness statements and the matter is nowhere near trial.
There is a further point. Where a party seeks to strike out a statement of case on the basis that it discloses no reasonable grounds for bringing or defending the claim, the court should consider whether any identified defect might be cured by amendment before acceding to the application: Kim v Park [2011] EWHC 1781 (QB). Accordingly, where, as here, a respondent to a strike out application seeks permission to amend in an attempt to remedy any perceived shortcoming in the original statement of case, the court should, in my judgment, certainly where the amendment application is not made at a late stage in the proceedings, be sympathetic to the application.
For these reasons, I consider that in principle the court should allow Ms B to amend her Defence and determine the strike out and summary judgment applications on the basis of her true case.
There are, however, limitations as to the amendments that ought properly to be allowed.
WITHDRAWAL OF ADMISSIONS
Rule 14.1(5) provides that a party needs the permission of the court before it can amend or withdraw an admission made in a statement of case. Here, Mr Howard submits that the Amended Defence seeks to withdraw three admissions.
(i) “Lots of children”
At para. 13(iv) of the original Defence (albeit wrongly numbered 13(v)), Ms B pleaded:
“In the Facebook one-to-one communication … some wording was used to encourage participation in the same way as a salesperson might do. The use of the words ‘lots of children’ and ‘a group .. joined .. together’ are exaggerations and are not true.”
The Facebook communication is dealt with at para. 42 of the Amended Defence. After citing a number of statements from the communication including the statement that “lots of children have been treated badly”, the pleader continues:
“All of these statements are true or substantially true except that there was no group of parents joined together: this was an exaggeration.”
Further detail is pleaded at para. 42(iv) of the draft:
“There have been lots of children who have been treated badly by having to endure a 5 1/2— to 6-day week plus ‘overtime’ homework with the addition of a long commute for some. Some commuted from outside the Midlands area. Others have had to endure a ‘flash-card’ system which did not suit their needs. The comparative pass rates are relevant …
Children had suffered from safeguarding and other issues: the child and one other safeguarding issues (sic) known to the Defendant. Other children had been pushed out of the school for inadequate reasons or disproportionately disciplined and otherwise treated badly. Witness evidence will be given. Ms [C's] son is an example …”
Accordingly, the Amended Defence seeks to withdraw the earlier admission that the statement about “lots of children” having been treated badly was not true. This was a material admission in the context of this defamation claim.
It was therefore incumbent on Ms B to seek permission to withdraw the admission pursuant to r.14.1(5). The matter was not put before me in that way; rather Ms B simply sought permission to substitute her original Defence with the substantially new Amended Defence. The point under r.14.1 arises not from Ms B's application, but from the objection taken by Mr Howard that the Amended...
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