Cases

Waterson v Lloyd (No 2)

Facts

On 8 December 2011 Tugendhat J handed down judgment in respect of applications for summary judgment that each party brought against the other in C's defamation action based on election newsletters published by the Ds before the 2010 General Election. That judgment, received in draft by the parties some days beforehand, found that the statements complained of were allegations of fact and, accordingly, the defence of fair comment, the only defence pleaded, failed. Late on 7 December the Ds issued an application for permission to amend to plead justification. The evidence filed in support made no attempt to explain why the Ds had delayed making an application to amend. Without waiving privilege, the Ds submitted that evidence to plead justication had accrued by mid-October and a decision had been made at the outset not to plead justification for fear of aggravating damages, and in the belief honest comment would succeed. C argued that the lateness was unexplained and permitting the amendment was contrary to legitimate expectations of parties to litigation and the overriding objective. In particular C objected to the fact that the proposed plea of justification was wholly inconsistent on its facts with the case that the Ds had run to date, which amounted to a case that C had not breached the rules governing MPs' expenses claims during 2004 to 2008.

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