Creative Resins International Ltd. v Glasslam Europe Ltd.

Permission to amend pleadings may be refused where the proposed claim is very weak and the applicant has not demonstrated a sufficient need for the amendment. The court must exercise its discretion consistently with the overriding objective in Civil Procedure Rules 1998, r 1.1. Relevant considerations include the strength of the proposed claim, added factual investigation, expense, delay, complexity and proportionality. A bare assertion that material posted on a website remained accessible within the jurisdiction may be insufficient to establish publication, particularly where the court is assessing the strength of a proposed amendment.

The claimant brought libel proceedings concerning two letters and an article published on the website of US Glass Magazine. It applied under Civil Procedure Rules 1998, r 17.1(2)(b), to amend its particulars of claim so as to allege that the first defendant was responsible for publication of the website article and related publications.

The proposed amendment was opposed as weak and late. The court considered responsibility for route publication, the adequacy of the pleaded case concerning publication within the jurisdiction, the evidence supporting the first defendant's responsibility, and the proportionality of introducing the additional claim.

1. The application for permission to amend was dismissed. Permission to make the proposed amendments was refused.

2. Responsibility for a further publication requires more than showing that the defendant's words caused the publication. The relevant question is whether the defendant foresaw, or ought reasonably to have foreseen, that the further publication would probably occur and that increased damage would result. The court adopted the formulation stated in McManus v. Beckham [2002] 1 WLR 2982 at para 43.

3. The proposed case against the first defendant was weak. The defence did not provide a sufficient factual basis for alleging that the first defendant caused publication of the website article. The pleaded assertion that the article was accessible to users in the jurisdiction did not establish that it had actually been accessed there. The wording of the article was also not identical to the first defendant's press release.

4. The strength of a proposed claim is a relevant consideration on an amendment application. The court was not required to determine whether the existing pleading would ultimately be struck out or succeed, but could take its apparent weakness into account when deciding whether to permit the amendment.

5. The court applied the overriding objective in Civil Procedure Rules 1998, r 1.1. The amendments would introduce further factual inquiry, submissions, delay, complexity and cost. The claimant had produced no sufficient material demonstrating a need proportionate to those consequences. The considerations identified in Komarek v. Ramco Energy plc (unreported, 21 November 2002) at para 65 supported refusing an amendment where proportionality did not justify the additional disruption.

First-instance decision. The judgment does not state any further appellate history.