Cases

Waterson v Lloyd (No 2)

Held

Refusing the application for permission to amend:

1. Although electing to plead justification or not was always a difficult decision for a defendant to make, because of the consequences of making the wrong decision, the Ds admitted that the material which would have allowed them to introduce justification by amending was in place by the middle of October—the time when C issued his application for summary judgment on the issue of whether the words were fact or comment. The Ds issued their own summary judgment application a few weeks later which could also have included an application to amend. There was no element of surprise in this case: the single meaning determined by the Court was the meaning pleaded by C throughout.

2. Applying the principles relevant to applications to amend to introduce new defences and claims once judgment had been entered (a jurisdiction sparingly exercised on exceptional circumstances), the Ds should have brought forward their entire case when it was reasonable to do so, especially as no new evidence had come to light between circulation of the judgment in draft and the making of the application.

3. The proposed applications, for permission to appeal summary judgment against the defence of honest comment whilst deferring the application to amend, were contrary to the overriding objective and established practice and impermissible.

Also