Michael McGrath and Another v Byron Bedford and Another
| Jurisdiction | England & Wales |
| Judge | Sir David Eady |
| Judgment Date | 03 February 2016 |
| Neutral Citation | [2016] EWHC 174 (QB) |
| Docket Number | Case No: HQ15D02443 |
| Court | Queen's Bench Division |
| Date | 03 February 2016 |
[2016] EWHC 174 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir David Eady
Sitting as a High Court Judge
Case No: HQ15D02443
John Samson (instructed by Gregg Latchams) for the Claimants
Ian Helme (instructed by Gisby Harrison Solicitors) for the Defendants
Hearing date: 15 January 2016
This is an application by the Claimants for permission to amend their particulars of claim pursuant to an opportunity granted by His Honour Judge Moloney QC, following a judgment dated 30 July 2015. The claim is founded upon allegations of defamation and malicious falsehood. The application was dated 16 October 2015 and was originally granted ex parte by Master Eastman on the same day. How that came about does not matter, but the parties agreed that the order should be set aside and the application determined at an inter partes hearing. I therefore set aside the Master's order by consent on 15 January and proceeded to hear their submissions, which concluded at 4.20 p.m. I now, therefore, set out my conclusions by way of this reserved judgment.
Mr Helme for the Defendants raised a number of objections to the form and content of the claim form and the particulars, which I shall need to address. He put in the forefront of his argument the proposition that it is for the Claimants to discharge the burden of showing not merely that their case, as amended, is arguable but also that it will have a realistic prospect of succeeding. It is clear that mere assertion will not suffice for this purpose. The criteria are very similar to those applied on an application for summary judgment under CPR Part 24. He placed emphasis on a passage in the judgment of Arden LJ in Collier v P & MJ Wright (Holdings) Ltd [2007] EWCA Civ 1329, at [21]:
"…There has to be something to suggest that the assertion is sustainable. The best evidence would be incontrovertible evidence to support the applicant's case, but this is rarely available. It would in general be enough if there were some evidence to support the applicant's version of the facts, such as a witness statement or a document, although it would be open to the court to reject that evidence if it was inherently implausible or if it was contradicted, or was not supported, by contemporaneous documentation … But a mere assertion by the applicant that something had been said or happened would not generally be enough if those words or events were in dispute and material to the issue between the parties."
He also drew my attention to a passage in the current White Book, at 17.3.6, to the effect that a party will not be permitted to raise by amendment an allegation which is unsupported by evidence and is pure speculation or invention. I have no doubt, however, that in making this assessment the court should take into account any narrowing of the issues and in particular the scope of any admissions made, for example, in pre-action correspondence.
In addressing any application to amend the particulars in a defamation claim the parties, and the court, will need to have in mind the recent developments in practice which have taken place in the wake of s.1 of the Defamation Act 2013, and specifically in relation to the need for any claimant to show that serious harm to reputation has occurred or is likely to do so. This requirement is now a substantive element in any claim for libel or slander and is logically unconnected to the strength or weakness of any possible defence. Without it, no such claim will get off the ground. Defendants, therefore, need to be alert to the possibility that a claimant will not be able to establish this basic ingredient and, where appropriate, may raise the point by way of preliminary objection prior to serving a defence.
It will depend on the circumstances, but one can well envisage cases in which the words complained of appear not to be of a sufficient level of gravity, or where the evidence of publication is itself very limited. Where this is so, the overriding objective would appear to require that the point is taken early with a view to saving time and costs. (See e.g. the discussion in Lachaux v Independent Print Ltd and others [2015] EWHC 2242 (QB), at [12] and [168]–[169].) It seems, correspondingly, that claimants would generally be wise to be in a position to make out a case of "serious harm", even before a defence has to be served, which goes beyond mere assertion and to be able to demonstrate that it has at least a realistic possibility of success. If a challenge is made to a plea of "serious harm" at that stage, the claimant's cards need to be on the table and the evidence in support should be made available. It will generally not do simply to make the assertion that serious harm has been suffered and call upon the defendant to plead to it without more.
It may be that in some cases it will make sense to determine the "serious harm" issue at a full hearing with early disclosure of relevant documents, evidence and cross-examination. Where this happens, it will normally be appropriate for the court also to rule, in advance of such determination, upon the issues of meaning: see Lachaux at [167]. On the other hand, experience soon began to show that the overriding objective would not always be served by a full preliminary hearing, and indeed that sometimes the adoption of such a procedure will increase rather than reduce the cost of the litigation. This would appear to undermine the intention of the legislature instead of achieving its objective. These risks were highlighted in the judgment of Judge Moloney in Theedom v Nourish [2015] EWHC 3769 (QB), at [31]. He pointed out the alarming fact that the parties had expended between them, by that early stage, costs amounting to nearly £200,000. There remained yet to be incurred the costs of resolving all the other issues and duplicating in the process a good deal of what had already taken place. This means that no general rule can be laid down. Much will turn on the facts of the particular case and upon the judgment of the parties and of any judge called upon to exercise case management powers. (There is nothing new in this, since it has long been recognised that the trial of preliminary issues can prove to be a snare and delusion.)
This may well be a case for "serious harm" to be explored by way of preliminary hearing, although that is not a matter for me to decide. The publication appears to be very limited in scope and the defamatory meanings, which depend upon establishing an innuendo, are by no means obvious at a first reading. The Defendants will, therefore, need and be entitled to the fullest information available on the Claimants' plea of serious harm, in order to enable them to decide whether to make an early challenge. This is quite apart from their right to have the case properly pleaded on other essential ingredients, such as publication and meaning, in accordance with the well established rules. I must now turn to the...
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