Reference:  EWHC 3292 (QB)
Judge: Tugendhat J
Date of judgment: 13 Dec 2011
Summary: Amendment - part 24 - summary judgment - delay - justification
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Desmond Browne CBE QC - Leading Counsel (Claimant)
David Hirst (Claimant)
Instructing Solicitors: Irwin Mitchell LLP for C; Goodman Derrick LLP for Ds
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.
Whether the Ds’ application for permission to amend to plead justification after judgment had been given under Part 24 but before the order had been drawn up should be permitted
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.
Practical guidance on an issue central to many defendants’ strategies in defamation litigation: when to place an “up the sleeve” justification defence on the record, having not advanced it at the outset on grounds of expense, risk of aggravation of damages, or not having sufficient evidence.