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.