Thomas Michael Bower v Ian Robert Maxwell

This is an appeal with the leave of Mr. Justice Michael Davies against his refusal to give the defendant leave to amend his defence on 10th February 1989. The learned judge who heard the application to amend did so in his capacity as judge in charge of the jury list. To that judge applications of this nature come nowadays, the object being that, as in the commercial list, greater control should be exercised by the judge on the progress of the litigation so as to secure the more expeditious, efficient and economical disposal of actions in that list. I stress the learned judge's position as it is sought to be argued that, as a matter of principle and authority, the judge, on the facts of this case, had no discretion to refuse to allow the defendant leave to amend.

It is further submitted in this case on behalf of the defendant that, in considering the well established principles which apply to applications to amend pleadings, it is not permissible to view those authorities which lay down the principles in the light of the current practice which is adopted with regard to exercising more control than was hitherto the practice as to the manner in which litigation is conducted.

The action is one of a series of actions between the plaintiff, Thomas Michael Bower, and the defendant, Ian Robert Maxwell, connected with the proposed and actual publication of a biography written by the plaintiff of the defendant. On 22nd January 1988 the defendant wrote a letter to Andrew Lloyd Webber, not in his capacity as a composer but in his capacity as chairman of a holding company which controls the Auram Press Limited, who are the publishers of the plaintiff' s book which bears the title "Maxwell: The Outsider". The flavour of the letter which was written by the defendant, which it is not necessary to set out in detail in this judgment, is given by one paragraph which reads as follows:

"I hope that you and your legal advisors will decide that Bower must have conned you as he has conned some of my friends into believing that he is doing a fair or even authorised biography. As you will know the book was originally commissioned by Blond, after he went out of business, the book has been pedalled to other publishers, all of whom refused to have anything to do with it."

That letter having been written on 22nd January 1988 and having come to the notice of the plaintiff, a writ was issued on 23rd February 1988.

In advance of the defence, on the following day a letter was written on behalf of the defendant, no doubt to deter any application for a possible injunction, which stated:

"Our client will not give the undertakings requested. Subject to sight of the statement of claim we anticipate that our client's defence will include pleas of justification and fair comment."

The statement of claim was served on 28th February 1988. On 5th July 1988 what could be described as a holding defence was served; that merely contended that the words relied upon by the plaintiff were not capable of having the defamatory meaning attributed to them by the plaintiff. On 24th August 1988 the summons for directions was heard. Lists of documents were delivered on 13th September 1988 by the plaintiff and on 13th October 1988 by the defendant. There was correspondence with regard to discovery and in a letter dated 28th November 1988 the defendant's solicitors stated:

"With the defence, as it is currently pleaded, we consider that we have disclosed all relevant documents."

There were further letters written between the respective solicitors and on 28th November 1988 the plaintiff's solicitors wrote inter alia with regard to the present action:

"…we note with interest your use of the words 'as it is currently pleaded'. Your client's defence has been in the form that it is for the better part of four months. We would object to any late amendment of your client's defence and if any attempt is made to amend we would consider that the appropriate moment to amend would be at the hearing on 2nd December."

I interpose to say that that is a reference to a hearing in relation to other matters in different actions between the parties. The letter goes on:

"Obviously we cannot comment on whether we would object to such amendment until we see the amendment but the probability is that we would object to a substantive amendment at this stage."

The reply of 29th November refers to that passage in the plaintiff's solicitors' letter by stating:

"We do not consider that it is useful to discuss a hypothetical amendment to our client's defence in the Andrew Lloyd-Webber action."

The hearing took place on 2nd December without any application for leave to amend being made, but in January of this year there was issued a summons by the defendant seeking leave to amend his defence to set out a plea of justification, including particulars extending over many pages. The application to amend was supported by an affidavit by the defendant's solicitors which expresses concern about the fact that the application was being made late in relation to the anticipated date of trial, the case by then already being in the warned list, and goes on to give an explanation for that delay which is primarily contained in paragraph 7 of the affidavit. That is based upon the fact that the statement of claim in what is known as "the book action" had taken considerable time to finalise, the book action being an action brought by the present defendant, Mr. Maxwell, against the present plaintiff, Mr. Bower, over what are alleged to be defamatory statements in the plaintiff's biography of the defendant, and the defendant's solicitor states that it was in Mr. Maxwell's interests to consider the defence in the present action in relation to the much wider and detailed consideration of the contents of the biography.

In the course of argument before the learned judge and in this court today Mr. Hartley on behalf of the plaintiff contends that it would and should have been possible to deliver the statement of claim in the book action much earlier than it was delivered, and the learned judge took the view that the fact that the statement of claim had not been delivered was no justification for the defendant not seeking to raise a plea of justification in the present action earlier than he did.

In the course of his clear and helpful submissions Mr. Hampton accepted that it was open to the learned judge to come to the conclusion that there had been inexcusable and even inordinate delay in seeking to make the application for leave to amend in order to raise the plea of justification. However, he submits that the learned judge should have allowed, and indeed was bound to allow, the amendment because, in his submission, leave to amend can only be refused if it is established to the court's satisfaction that the delay in applying for leave to amend is the result of bad faith or an intention to over-reach the other party or that to allow the amendment will cause hardship to the other party which cannot be compensated in money. As to the question of bad faith or over-reaching, he rightly submits that the learned judge did not find in this case that there was any bad faith or intention to over-reach the plaintiff and this finding of the learned judge is not challenged by the plaintiff. With regard to the question of hardship, Mr. Hampton submits that, albeit this case was already in the warned list, no hardship could be caused which would justify the refusal of the leave to amend because, particularly in an action for defamation, the plaintiff can be adequately compensated both by way of costs and damages for any consequences of the delay. He submits, and rightly submits, that damages in defamation proceedings are assessed up to trial and cover such matters as the stress of the proceedings to which the plaintiff is subjected.

In this regard he refers to the speech of Lord Hailsham in Broome v. Cassell & Co.(1972) A.C. 1027 at page 1071, and in particular a passage from that speech which is reproduced in Duncan & Neill on Defamation at page 132 which is in these terms:

"In all such cases it must be appropriate to say with Lord Esher ME in Praed v. Graham…in actions of libel…the jury in assessing damages are entitled to look at the whole conduct of the defendant' (I would personally add 'and of the plaintiff')' from the time the libel was published down to the time they give their verdict. They may consider what his conduct has been before action, after action, and in court during the trial."

Mr. Rampton submits, in accord with that approach, in this case if there has been any hardship caused to the plaintiff in consequence of any delay which would arise, and indeed would inevitably arise, because of the amendments being made at this stage, that could be satisfactorily compensated by an appropriate award of damages.

With regard to the general approach in relation to amendment, Mr. Hampton referred the court to the relevant notes in the White Book to Order 20 Rules 5–8 which are set out at page 350 under the heading "General principles for grant of leave...