Court: Court of Appeal
Judge: Lord Bingham CJ, Roch & Swinton Thomas LJJ
Date of judgment: 21 Feb 1996
Defamation - Late Amendments - Justification
Patrick Milmo QC - Leading Counsel (Claimant)
David Sherborne (Claimant)
Instructing Solicitors: Richard Sykes for the Plaintiff; Harbottle & Lewis for the Defendants
The Claimant PR consultant sued the author and publisher of the book, “Dirty Tricks”, which gave an account of the battle between British Airways and Virgin Atlantic Airways which resulted in a libel action and an eventual settlement by BA. The Claimant complained that the book suggested that in the course of his work for BA he had deliberately spread damaging rumours about Virgin which he knew to be false. In its original Defence, the Defendants relied upon a plea of justification, which they applied to amend extensively shortly before trial. The first instance Judge refused to allow the amendment on the basis of the procedural history of the Defendants’ failure to advance their Defence in the proposed form earlier in the action and the fact that he believed that justice could be done and the case fairly tried even on the existing plea. The Defendants appealed to the Court of Appeal but on a more limited form of amendment.
The principles governing a late application to amend a plea of justification
The Court held that even though the Defendants had shown great dilatoriness, they would have been at a hopeless disadvantage if they could not rely on the additional material which they sought to adduce under the proposed amendments to their existing plea of justification. In addition, in a libel trial before a jury, there was a serious question as to how valuable would be the vindication which a claimant would receive from an award of damages if it was achieved against a defendant who was not able to advance the defence he wished. The Court was at pains to stress that these factors were not “trump cards” permitting late applications to amend, even where this might mean the adjournment of a trial. Each case will depend upon its own facts.
This case represented the high watermark for defendants in relation to late amendments to pleas of justification. It effectively provided a defendant, no matter how dilatory (provided there was no ‘overreaching’), with an opportunity to introduce extensive additional material by way of justification very late in the day, even if it caused the adjournment of the trial. Post the CPR, it is unlikely that a court would be quite so generous to a defendant in these circumstances, even though the factors of false vindication and restriction on freedom of speech would still be powerful considerations to weigh up in deciding the best way to further the overriding objective.