Cruddas v Calvert & Ors

Permission to amend a pleading should generally be granted where the real dispute can thereby be tried, provided any prejudice can be compensated in costs and the administration of justice is not significantly harmed. Permission may be refused where the proposed case would be liable to strike out or summary judgment. In a case to be tried by a judge and jury, the relevant question is whether a properly directed reasonable jury could find for the party advancing the issue; the court should allow for the possibility of further evidence, especially where dishonesty is alleged.

For malicious falsehood, malice ordinarily requires an intention to injure the claimant, not merely a third party or the defendant’s own commercial interests. Evidence may nevertheless be pleaded where it could support an inference of an intention to injure the claimant. Novel extensions of the tort, particularly in politically sensitive contexts, require caution.

The claimant brought proceedings for libel and malicious falsehood arising from articles published by the defendants, journalists and the publisher of the Sunday Times. He sought permission to amend his Particulars of Claim, principally to add further particulars of malice based on disclosure concerning the preparation, editing and publication of the articles.

The defendants objected to selected amendments on grounds including irrelevance, lack of a realistic prospect of success, improper reliance on intentions directed towards third parties, and disproportionality. The central issues were whether the proposed allegations were legally capable of supporting malice and whether a reasonable jury could properly find for the claimant on them.

1. The application concerned permission to amend rather than the merits of the libel and malicious falsehood claims. Amendments should generally be allowed so that the real dispute can be adjudicated, where prejudice can be compensated in costs and the administration of justice is not significantly harmed.

2. Under CPR 24.2, the question is whether the issue has no realistic prospect of success and there is no other compelling reason for trial. Because the proposed trial was to involve a jury, the court had to consider whether a properly directed reasonable jury could find for the party advancing the issue. The court should allow for evidence which may develop, but speculation that something might turn up is insufficient. The approach was subject to particular caution where dishonesty or malice was alleged.

3. Malice in malicious falsehood is ordinarily directed towards the claimant. An intention to injure a third party, without more, could not establish the claimant’s malice because the other elements of the tort concerned the claimant, his property or his economic interests. The proposed reliance on an intention to injure the Prime Minister was therefore a novel extension and was disallowed.

4. Acting for one’s own advantage is not itself malice. However, evidence of the cost or commercial pressure associated with an investigation could be relevant to show why defendants may have published allegations which they knew to be false. Such evidence could therefore be pleaded as part of the wider evidential case on intention.

5. Individual strands of evidence may be insufficient when considered alone, but in an appropriate factual setting several strands may support an inference which could not reasonably be drawn from each strand in isolation. Allegations concerning editing changes, delayed notification, journalistic conduct, dealings with the Electoral Commission and possible avoidance of an injunction were therefore allowed where they could rationally assist the inference of malice towards the claimant. Allegations directed solely to others, irrelevant corporate relationships, or matters incapable of advancing that inference were disallowed or required recasting.

6. The court allowed or conditionally allowed the amendments identified in the judgment and disallowed the remaining challenged amendments. The proposed amendments were not disproportionate.