Nigel Waterson v Stephen Lloyd MP and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat |
| Judgment Date | 13 December 2011 |
| Neutral Citation | [2011] EWHC 3292 (QB) |
| Date | 13 December 2011 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ10D04868 |
[2011] EWHC 3292 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ10D04868
Desmond Browne QC & David Hirst (instructed by Irwin Mitchell LLP) for the Claimant
Richard Rampton QC & Ian Helme (instructed by Goodman Derrick LLP) for the Defendants
Hearing dates: 8 December 2011
On 22 November 2011 I heard applications by each party in this libel action for an order that judgment be entered in his or their favour. The application by the Defendants was for trial of the meaning of the words complained of as a preliminary issue.
On 2 December 2011 my judgment was circulated in draft. On 8 December 2011 I handed it down under neutral citation number [2011] EWHC 3197 (QB). As I stated in paragraph 5 of the Judgment:
"The Defendants do not plead a defence of truth (or justification, as it often called). That means that if I find that either or both of the publications complained of is defamatory, and is a statement of fact, then there is no defence, and I must enter judgment for Mr Waterson".
For reasons stated in my Judgment I found that the words complained of in each of the publications were defamatory statements of fact, and not comment or opinion as contended by the Defendant. Accordingly, at para 53 of the Judgment I stated that judgment would be entered for Mr Waterson on the issue of liability, and issues as to the relief to be given would be determined separately, if not agreed.
THE DEFENDANTS' APPLICATIONS
On Wednesday 7 December counsel for the Defendants submitted to my clerk in the usual way proposed editorial corrections to the draft judgment which was due to be handed down at 10.30 am the following day. The e-mail continued as follows:
"Accompanying the corrections is notice of an application that the Defendants intend to issue today. A formal application notice will be issued together with evidence and draft amended pleading as soon as possible. …"
What was attached was a three paragraph document headed "Defendants' Correction and Application". The second paragraph gave notice that the Defendants proposed to apply for permission to amend to raise a new defence of justification. The same day an Application Notice was issued. In addition to permission to amend to plead justification, the Defendants asked that the hearing of that application for permission be stayed pending final determination by the Court of Appeal of the application for permission to appeal against my Judgment. They also asked that entry of judgment for the Claimant be likewise stayed pending (a) final determination of the appeal, and (b) final determination of the Defendants' application for permission to amend their defence to plead justification.
I heard submissions on the applications in the Defendants' Notice, and after a short adjournment I informed the parties that I had decided to dismiss the Defendants' applications. I said I would give my reasons in writing, and these are they.
THE EVIDENCE
The Application Notice was supported by a witness statement of the same date by Mr Nigel Adams, the solicitor to the Defendants. Although a number of days had by then passed since the circulation of the judgment in draft, he included the following paragraphs, and nothing else, by way of explanation for the late application for permission to amend to plead justification:
"3. The defence served by the Defendants in this litigation pleads the defence of honest comment. The Defendants have not sought in their defence to plead a defence of justification as they considered the words complained of by the Claimant were comment and not fact.
4. The court has recently been asked by the parties to give a ruling on the meaning of the words complained of and a draft judgment has been circulated ….. in the draft judgment the judge has ruled that the words are fact and not comment.
5. The Defendants consider that, if the judge's ruling on the words being fact as opposed to comment stands, they can justify the truth of the words complained of. A draft of the amended section of the defence [was attached]".
The application for permission to plead justification thus falls to be made in circumstances where the hearing of the action on the issue of liability has been completed and judgment has been handed down, but the order has not been drawn up. The position is similar to that considered by Neuberger J, as he then was, in Charlesworth v Relay Roads Limited [2000] 1 WLR 230, 232B-C.
Whether the courts should grant permission to amend to raise a new defence is a matter of discretion. The applicable principles for the exercise of that discretion are set out and considered in detail by Neuberger J in his judgment at pages 234H to 239D. I have considered all matters set out in that part of his judgment. At page 236D Neuberger J emphasised the following words in the observations of Lord Griffiths in Ketteman v Hansel Properties Limited [1987] AC 189, 220:
"… Furthermore to allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence".
Those words apply directly to the present case. Neuberger J at page 237D stated that it was germane to consider the approach laid down by the Court of Appeal to the admission of new evidence on appeal in Ladd v Marshall [1954] 1 WLR 1489, 1491, where Denning L J said that three conditions had to be satisfied before the Court of Appeal would be prepared to receive new evidence:
"First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly; the evidence must be such as is presumably to be believed, or in other words it must be apparently credible, though it need not be incontrovertible".
At page 238E to H Neuberger J summarised the principles applicable to the exercise of the court's discretion, as follows:
"(1) the court has jurisdiction...
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