Adelson & Anor v Associated Newspapers Ltd

Amendments to add parties after expiry of the limitation period require compliance with the statutory and procedural rules governing substitution or addition. In a libel claim, each person to whom defamatory words refer has a separate cause of action. An amendment cannot therefore substitute two new claimants for one existing claimant while leaving the original claimant in place, unless the requirements for adding a new claim are satisfied. A relevant mistake is not established merely because, with hindsight, the wrong claimant was chosen. The proposed amendment must reflect the mistake actually made and must not materially change the claim. Amendments to aggravated damages may be refused where their investigation would impose disproportionate cost and delay, distract the jury, or enlarge allegations covered by an accepted offer of amends.

The claimants brought libel proceedings concerning an article published in the Daily Mail. They sought permission, nearly one year after expiry of the libel limitation period, to add two corporate claimants and to amend the first claimant’s claim for aggravated damages. The defendant applied to strike out the second claimant’s claim on the basis that it did not trade in its own right and could not sue for the alleged damage.

The court considered whether the proposed corporate amendments involved substitution for the existing claimant or the addition of new causes of action, whether the second claimant had been named by mistake, and whether the late aggravated-damages amendments were arguable, proportionate and compatible with an accepted offer of amends.

1. Applications refused. The applications to add the third and fourth claimants and to make the proposed aggravated-damages amendments were refused, save that the claimants could re-apply in respect of the reference to the first claimant’s ethnic origins. The defendant’s strike-out application was also refused.
2. The court applied the overriding objective and the general principle that an amendment should normally be allowed where it is arguable and important to determining the issues, and the other party will not suffer undue prejudice. Late applications should normally be explained by evidence. More serious allegations require clearer satisfaction that prejudice will not be caused.
3. Under section 35 of the Limitation Act 1980 and CPR Part 19.5, post-limitation substitution requires a qualifying mistake and necessity. The practical question is whether the identity of the claimant can be changed without significantly changing the claim. The evidence must establish the mistake actually made; a hindsight error or deliberate tactical choice is insufficient.
4. In libel, one publication referring to several persons creates separate causes of action for each person. Two new corporate claimants could not both be substituted for one existing claimant while the original claimant remained. Doing so would either introduce new claims, requiring compliance with CPR Part 17.4, or materially alter the existing claim. The evidence did not establish that the second claimant had been named in mistake for either proposed claimant.
5. The issue whether a non-trading corporation could maintain the remaining libel claims was left open for possible reconsideration on a revised pleading and further evidence. The strike-out application was therefore premature.
6. The proposed aggravated-damages amendments would require investigation of matters dating from publication, risk extending an already complex jury trial, and were disproportionate to any possible increase in compensation. The court also accepted that allegations enlarging matters for which an offer of amends had been accepted should not be introduced. The judge’s view that a Part 36 offer or payment into court would not itself bar amendment was expressly obiter.