Refusing permission for the amendments to which C objected:
1) Meaning 1 was described by Dingemans J as “a nearly literal use of the words [complained of]”. Those words included “to gain more information I inadvertently clicked on a tab which they the claimed was an electronic signature…I was annoyed that I had been duped like this”. This inadvertent electronic signature claim formed no part of the Ds’ current case. D1 admitted that he had in fact clicked a button to say he accepted the terms and conditions. The Ds’ case was instead founded on more general alleged mis-selling. The Judge found that the words used were clear and that the particulars sought to be relied on did not engage with the particular sting of this specific allegation and could not justify it (Bookbinder v Tebbit  1 WLR 640 (CA)).
2) The crux of D2’s case in the County Court proceedings had been described by D1 as follows: “… we were assured [by a representative of C] at least 25 leads/enquiries a month, a promise that was more than misleading as not a single enquiry to date has resulted from the BR website”. After examining the factual background, including the case before the County Court in detail, the Judge ruled that the defence and particulars which the Ds sought to rely on were an embellished version of the case run unsuccessfully in the County Court. It amounted to an attempt to re-litigate the issues raised in the counterclaim before that court. To permit this would be oppressive to C. Although D1 was not a party to the County Court case, he represented D2 in that litigation, and in reality the two Ds had an identity of interests. Any determination based on this type of abuse of process (Henderson v Henderson (1843) 3 Hare 100; Johnson v Gore Wood & Co  2 AC 1) must be fact specific. However it was not an exercise of discretion, there could only be one right answer (Aldi Stores Ltd v WSP Group PLC  1 WLR 748). Ds would still be permitted to continue to defend the case, but the proceedings could only continue on the basis of those matters which in the opinion of the court it was fair to try. Thus the ruling would not deprive Ds of their Article 6 and Article 10 rights.
3) A number of draft particulars were based on the “usage statistics”, a set of statistics produced by C, but which had been available to Ds throughout D2’s subscription to C’s service, which set out the number of “hits” on different sections of D2’s registered details. Ds’ case rested on the contention that the usage statistics were false. This was no part of D’s case before the County Court, although the usage statistics were before that court, and Ds could have raised an issue in that forum, including through cross-examination, but did not do so. Ds’ assertion was based on the “inherent improbability” of the statistics – i.e. that users of the service would not act in the way the statistics showed, and on drawing upon the usage statistics of four other companies, also dissatisfied customers of C. Given that C had 1,500-2,000 customers, four customers could not provide a sound evidential basis on which to proceed. In the libel claim C had served evidence from one of its technical personnel to show that the statistics were indeed likely to be correct. Ds had put in no evidence. Ds had not come near what was required for the court to be able to infer that the statistics were false.