Waterson v Lloyd & Anor

Permission to amend pleadings to introduce a new defence after judgment has been handed down is a matter of discretion. The court must seek to achieve justice while considering the efficient conduct of litigation, the opposing party’s legitimate expectations, prejudice, and the public interest in finality. Litigants should ordinarily bring forward their whole case at once. A party should not reserve an alternative defence and deploy it only after its primary defence has failed. An application made after judgment, where the relevant material was already available and the applicant cannot explain the delay, will generally require exceptional circumstances. The application was refused because the defendants had the necessary information before the liability hearing and sought to prolong the determination of the claim.

This was a libel action in which the court had determined the meaning of the publications as defamatory statements of fact. In the earlier judgment, [2011] EWHC 3197 (QB), judgment on liability was ordered for the claimant, with relief to be determined separately if necessary.

After judgment had been handed down, but before the order was drawn up, the defendants applied for permission to amend their defence to plead justification. They also sought stays pending the proposed appeal and the amendment application. The central issue was whether the defendants should be permitted to introduce a new defence at that late stage.

The defendants’ applications were dismissed.

1. Discretion and applicable principles. The court has jurisdiction to permit an amendment raising a new point after judgment, but the discretion must be exercised to achieve justice. The court must consider the general amendment principles, including the arguability of the point, prejudice and the possibility of compensation in costs, the other party’s legitimate expectations, efficient litigation, and inconvenience to other litigants.
2. Finality and the whole case principle. It is inherently contrary to the public interest and unfair to the successful party for an unsuccessful party to raise a new point after a full and final judgment. The general rule requires litigants to bring forward their whole case at once, rather than advancing it piecemeal as objections emerge. An application after judgment will generally require an exceptional case, particularly where the applicant cannot satisfy the conditions applied to fresh evidence on appeal.
3. Fresh evidence analogy. The relevant conditions identified in Ladd v Marshall were that the material could not have been obtained with reasonable diligence for use at trial, that it would probably have an important influence on the result, and that it was apparently credible. The court did not need to decide whether the defendants could have obtained the material earlier, but noted that no such evidence had been produced.
4. Application to the facts. The defendants possessed the information supporting justification before the liability hearing. The meaning found by the court had not taken them by surprise, and they had expressly chosen not to defend the words in that meaning. It would be unjust to leave the claimant subject to the unresolved allegation for the period contemplated. Applying the principles identified above, permission to amend and the associated stays were refused.

The judgment itself records an intended application by the defendants for permission to appeal against the earlier liability judgment, but no appeal decision is stated. This judgment determined the subsequent applications for permission to amend and for stays.