Abbas v Shah

Permission to amend a statement of case late requires a careful balance between the applicant’s case, the opponent’s ability to respond and the interests of other litigants. The court is less ready to permit a very late amendment, particularly where the material was available earlier. The proposed pleading must itself satisfy the rules of pleading and show a real prospect of success; deficiencies cannot be left to evidence or later particulars. In a defamation claim, a justification defence must identify the meaning relied on and plead the supporting facts with sufficient clarity and precision. Rumour or hearsay unsupported by a properly particularised factual case cannot establish justification. A party cannot mitigate damages by proving misconduct not conveyed by the words complained of.

This was a pre-trial review in a libel action concerning a publication said to allege that the claimant had been violent towards women, including his former wife. The defendant sought permission to amend the Defence to challenge meaning, plead justification, and rely on matters in mitigation of damages.

The action had previously proceeded on the basis of a defence of responsible publication on a matter of public interest. Much of the material supporting the proposed justification defence had been available since 2012. The central issues were whether the amendment was impermissibly late, whether it was properly pleaded and had a real prospect of success, and whether the proposed mitigation and reliance on section 5 of the Defamation Act 1952 were legally available.

1. Late amendment. The application introduced a new defence after unjustifiable delay. The defendant had not previously made clear that he would assert the truth of the allegation. The court must consider the overriding objective, the lateness of the application, prejudice, the effect on the trial date and the interests of other litigants. A heavy onus rests on a party seeking a very late amendment. The court applied the principles in Swain-Mason v Mills & Reeve [2011] 1 WLR 2375, while treating the approach in Cobbold v London Borough of Greenwich as inapplicable to a very late amendment threatening the trial date.
2. Pleading requirements. Any permitted amendment had to set out the complete case with sufficient clarity and detail. The proposed justification plea had to identify the defamatory meaning relied on and plead facts sufficiently precise to enable the claimant to know the matters for trial. The allegation that the claimant was a wife beater was a meaning the words were capable of bearing, but additional meanings complained of by neither party were unnecessary and potentially confusing.
3. Justification evidence. The proposed allegations based on statements to DS Keeble were vague, unsupported by the witness statement relied on, and incapable of sustaining the pleaded case. The proposed hearsay evidence amounted to rumour rather than evidence capable of proving the truth of the allegation. The proposed inference from medical records was also unsustainable. The alleged common assault on another woman could not, by itself, constitute a particular of justification.
4. Mitigation and section 5. Alleged psychological abuse or mental torture was not conveyed by the words complained of and was therefore irrelevant to mitigation. Section 5 of the Defamation Act 1952 did not assist because the publication did not arguably contain two distinct allegations of the relevant kind.
5. Order. Permission to amend was refused, except insofar as the amendment concerned meaning in paragraphs 10 and 11.