Building Register Ltd v Mark Weston & Anor

Permission to amend a defamation pleading depends on whether the proposed case has a realistic prospect of success and is pleaded with sufficient particularity to meet the defamatory sting. A specific allegation cannot be justified merely by proving other misconduct unless those matters carry a broader imputation. Abuse of process is assessed through a broad, merits-based and fact-sensitive inquiry. A party may be barred from raising matters that should reasonably have been advanced in earlier proceedings where their repetition would be oppressive or unjust. Serious allegations that evidence is fabricated require a sound evidential basis, not assertions of inherent improbability.

The claimant brought a libel claim concerning allegations published on a website by its former customer and the customer’s managing director. Following an earlier determination of meaning by Dingemans J, the defendants sought permission to re-amend their defence to plead justification and honest comment.

The proposed amendments concerned allegations that the claimant had duped the defendants into entering an online contract, had mis-sold its service, and had relied on false usage statistics. The claimant opposed the amendments on the grounds that the first allegation did not meet the meaning, the second sought to re-litigate issues determined in earlier County Court proceedings, and the statistics case lacked an evidential foundation.

1. Permission to amend. The proposed case had to have a realistic prospect of success. In defamation proceedings, particulars of justification or honest comment must be capable of proving the pleaded defamatory meaning and must be sufficiently particularised. An inferential case must provide material from which the tribunal of fact could draw the proposed inference: Lord Ashcroft v Foley [2011] EMLR 30; McPhilmey v Times Newspapers Ltd [1999] 3 All ER 775.
2. The allegation that the claimant had duped the defendants referred to a specific form of online misconduct: inducing an inadvertent click which was treated as an electronic signature and thereby causing the contract to be entered. The proposed particulars concerned alleged dishonest sales representations and did not address that particular sting. They therefore could not justify the meaning and had no reasonable prospect of success. The principle that a specific charge is not justified by other examples of misconduct unless they carry a broader imputation applied: Bookbinder v Tebbitt [1989] 1 WLR 640 (CA).
3. The proposed mis-selling case substantially repeated the case advanced in the earlier County Court proceedings. The relevant inquiry was whether, applying a broad merits-based approach to all the circumstances, the later pleading constituted an abuse of process. It was not automatically abusive merely because the matter could have been raised earlier, but abuse was established where the issue had been litigated and its repetition would be oppressive: Henderson v Henderson 1843 3 HARE 100; Johnson v Gorewood & Co [2002] 2 AC 1; Aldi Stores Ltd v WSP Group Plc [2008] 1 WLR 748.
4. The County Court had considered the alleged sales expectations and usage statistics. The difference in parties and the defendants’ reformulation of their case did not prevent abuse, given the identity of interest and the opportunity previously available to advance the allegations. The defendants remained free to contest the other issues in the libel claim. Their rights under Articles 6 and 10 of the Convention were not infringed. The statistics challenge was also unsupported: reliance on four companies and assertions that the figures were inherently improbable did not provide a sound evidential basis for alleging falsity.

The amendments relating to duping, mis-selling and the usage statistics were refused.