Full case report
Alexander Economou v David de Freitas (PTR)
Reference  EWHC 1218 (QB)
Court High Court (Queen's Bench Division)
Judge Warby J
Date of Judgment 25 May 2016
Libel – Amendment – Particulars of Claim – New cause of action
The Claimant (“C”) was a company secretary at a ship management business, aged 37. The Defendant (“D”) was the father of the late Eleanor de Freitas, who was his only child. In 2012, C and Ms de Freitas had a relationship. On or about 4 January 2013 Ms de Freitas made an allegation of rape against C, who was arrested and interviewed. He was never charged. In February 2013 he was informed that there would be no proceedings against him. Six months later, on 2 August 2013, C brought a private prosecution against Ms de Freitas for perverting the course of justice. In December 2013 the Crown Prosecution Service (“CPS”) took over the prosecution, and thereafter continued it. In January 2014 the charge was put to Ms de Freitas at a public hearing. She pleaded not guilty, and a date was fixed for trial in April 2014. Shortly before the trial she killed herself.
There was to be an inquest into Ms de Freitas’ death on 7 November 2014, and D was anxious that this would be an extended inquest that would cover the role of the CPS. The Coroner declined to extend its scope, and D and his solicitor considered that media coverage would help to achieve his objective. The claim arose out of a series of media publications in November and December 2014, said to contain libels for which D was responsible: two articles in The Guardian, two BBC interviews, reports in The Daily Telegraph and The Guardian, and an article written by D in The Guardian. C claimed that the articles, none of which identified him by name, meant that he had prosecuted Ms de Freitas for rape on a false basis and therefore was guilty of rape. C relied on his identification in the public record, to friends, to journalists, on social media, and in the Daily Mail as giving rise to his identification as the individual referred to.
The issues between the parties on the pleaded cases so far as liability was concerned were (1) Responsibility for publication, (2) Reference, (3) Meaning, (4) Serious harm, and (5) Whether the publication was reasonably believed to be in the public interest.
At the Pre-Trial Review, C applied to amend his Particulars of Claim by adding a new cause of action in respect of a publication not previously complained of, a draft witness statement (“the draft Statement”) intended for use at the inquest which identified the claimant by name (attached to an email “the Email”), and by modifying an existing claim to reflect the provision of a press statement (“the Press Statement”) to a journalist at The Guardian.
From D’s disclosure it appeared that the draft Statement and the Press Statement were supplied to a journalist at the Guardian by those advising D on 6 November 2014. The Defence served on 22 May 2015 appeared to refer to the draft Statement and the Press Statement. On 1 June 2015 C sought inspection of the documents and was sent copies of them by D. In his Reply on 23 June 2015 C referred to the possibility of complaining over these documents, and on 6 July 2015 he served a Part 18 request asking for further information about the contact between D’s advisors and the Guardian journalist.
The limitation period for a claim in respect of publication of the Email expired on 6 November 2015. C’s solicitors proposed the draft amendment on 31 March 2016 and issued the application to amend on 6 May 2016.
On 10 May 2016 D provided C with a copy of a draft application notice seeking permission to serve and rely at trial on a second witness statement of D, which filled in a gap in D’s trial witness statement and which sought to “clarify” paragraph 97 of that statement. D also sought to amend a paragraph in his Defence to correct an “error in Defence” in relation to the Press Statement and the draft Statement.
- Would C be permitted to amend his Particulars of Claim (a) to add a new cause of action in respect of the draft Statement, and (b) to modify an existing claim to reflect the provision of the Press Statement?
- Would D be permitted (a) to serve a short supplementary statement, and (b) to amend his Defence?
Refusing C permission to amend to add a new cause of action while allowing him to modify an existing claim, and granting D permission on both of his applications
(a) The prohibition on allowing new causes of action to be pleaded by amendment after the expiry of the limitation period found at s 35 of the Limitation Act 1980 (“the 1980 Act”) is qualified by the rule found at s 35(5)(a) of the 1980 Act, which provides that a new cause of action may be allowed if it arises out of the same facts or substantially the same facts as already in issue on any claim previously made in the original action. The Judge considered the authorities relevant to the approach the court should take when determining whether a new claim arises out of the same or substantially the same facts.
CPR 17.4(2) governs applications to amend a statement of case where a period of limitation has expired under the 1980 Act. Both the provisions of s 35 of the 1980 Act and the predecessor of CPR 17.4(2) were considered by Eady J in Komarek v Ramco Energy plc (unreported, 21 November 2002), and the Judge reached the same conclusion as Eady J had in that case: there was no extant claim that arose out of the communication of the draft Statement to the Guardian journalist. The new claim arose from facts which were not substantially the same as a claim in respect of which C had already claimed a remedy within CPR 17.4(2).
Although the Judge had no discretion to available under the CPR, he had power to disapply the primary limitation period pursuant to s 32A of the 1980 Act. It was the Claimant’s task to explain the delay and there had been no explanation of the lateness of the application. The Judge did not consider it equitable to grant the relief because of the unexplained delay and because the defendant would suffer substantial prejudice if he were to grant the application.
The Judge would have exercised any discretion against the grant of relief under s 32A for overlapping reasons. The approach to be taken to the discretion under CPR 17.4 was the same as the approach to s 32A and the Judge would have arrived at the same discretionary conclusion if he had concluded that the claim fell within CPR 17.4(2).
(b) The Judge granted permission to amend to modify the existing claim to reflect the communication of the Press Statement to the Guardian journalist
(a) It was right to allow D to put right his omission to deal with part of the claim and the Judge could see no reason why he should not be allowed to “clarify” his witness statement.
(b) Permission to amend the Defence would bring the pleaded case into line with what D said was the true position and whether that was correct could be fairly thrashed out at trial. The amendments would cause no prejudice to C that could not be compensated in costs and would make the administration of justice smoother rather than delaying or complicating it.
The decision provides a useful summary of the principles applicable where a claimant contends that their application to amend to add a new cause of action outside the limitation period arises out of the same or substantially the same facts as are already in issue. It emphasises that, in a libel claim, the question of whether the facts are the same is to be determined in relation to the publications which are in issue, not the nature of the allegations that those publications contain.
Fieldfisher for C; Hanover Bond Law for D
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