McGrath & Anor v Bedford & Anor

Permission to amend a defamation pleading requires more than a bare assertion that the proposed case is arguable. The claimant must show evidence supporting a realistic prospect of success, applying criteria similar to those used on summary judgment. The court should consider admissions and any narrowing of issues.

Serious harm under section 1 of the Defamation Act 2013 is a substantive ingredient of a claim. It may be challenged at an early stage where appropriate, but no universal rule requires determination at a preliminary hearing. The procedure depends on the circumstances and case management considerations.

The claimants sought permission to amend particulars of claim in proceedings alleging defamation and malicious falsehood. The application followed an earlier opportunity to amend granted by His Honour Judge Moloney QC after a judgment dated 30 July 2015. The defendants challenged proposed amendments concerning publication, reference, innuendo, serious harm and special damage.

The central issue was whether the proposed pleading was sufficiently supported and coherent to justify permission to amend.

1. Permission to amend. The application was refused in relation to the relevant paragraphs. A proposed amendment must have evidential support and a realistic prospect of succeeding. Mere assertion is insufficient. The approach is similar to the criteria applied on summary judgment, while taking account of admissions and any narrowing of the issues ([2007] EWCA Civ 1329, [2]-[3]).
2. Serious harm. Section 1 of the Defamation Act 2013 makes serious harm a substantive element of a libel or slander claim. It is separate from the merits of any defence. Where the words or publication appear insufficiently grave or limited, the issue may appropriately be raised before a defence is served. Claimants should generally provide evidence showing a realistic prospect of proving serious harm; corporate claimants should address financial loss. The court may determine the issue at a full preliminary hearing, but no general rule requires that course. Case management depends on the facts and the overriding objective ([2015] EWHC 2242 (QB), [4]-[7]; [2015] EWHC 3769 (QB), [6]).
3. Pleading requirements. Allegations of republication, publication to identified persons, reference and innuendo must be pleaded specifically and supported by evidence or a properly pleaded inference. An open-ended class of publishees is inadequate where the scope of publication and extrinsic knowledge are material ([1981] 1 WLR 822; [2011] 1 WLR 1256, [17]-[19]).
4. Special damage. The proposed allegation that the claimants were forced to spend 200,000 Euros on a letter of access was incoherent and unsupported. It did not explain how either claimant had suffered recoverable loss or was entitled to claim it. Permission to add it was refused ([21]-[22]).

The application was initially granted ex parte by Master Eastman. That order was set aside by consent on 15 January 2016, and the High Court then determined the application inter partes.