Various Claimants v News Group Newspapers (Rev 1)

Applications to amend pleadings should be determined by balancing the applicant’s prejudice against prejudice to the opposing party and other court users, with the overriding objective paramount. A very late amendment requires a strong case and a satisfactory explanation, particularly where it threatens a fixed trial date. An amendment should be refused if the proposed case has no real prospect of success, but covert unlawful conduct may justify allowing a less fully particularised case where relevant evidence is likely to lie with the defendant. A generic pleading may be appropriate where it materially strengthens individual claims. Proportionality should principally control the scope of disclosure and investigation, rather than prevent a properly arguable generic case from being pleaded. Summary judgment or strike-out is justified only where the claim is fanciful or has no sufficiently strong prospect of success.

Several claimants pursued claims against News Group Newspapers concerning alleged phone hacking and other unlawful information gathering by the News of the World and the Sun. They sought permission to amend generic Particulars of Claim to plead a generic case concerning unlawful activity at the Sun. The defendant resisted the amendment and applied to strike out, or obtain summary judgment on, Sun-related claims pleaded by Mr Clegg concerning eight articles.

The applications raised the proper approach to allegedly late amendments, the evidential threshold for pleading a covert unlawful-activity case, the relevance and proportionality of generic pleadings, and whether Mr Clegg’s article-specific case was fanciful.

1. Amendment. The court adopted the principles summarised in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm). The overriding objective governs the discretion. A very late amendment attracts a heavy burden, but lateness is relative and depends on the amendment, its explanation and its consequences. The proposed case must have more than a merely arguable prospect of success.
2. The applications were not, in the relevant sense, very late. The Sun cases had not inevitably displaced a fixed trial date, and earlier procedural comments did not bar future claimants from advancing the point. The pleaded evidence, including evidence concerning Mr Mulcaire, journalists, articles, phone communications and movement of staff between newspapers, was weak in parts but could not be characterised as unsustainable. In covert-activity cases, the court must recognise that much of the relevant evidence may be in the defendant’s hands, while still requiring material sufficient to justify the pleading.
3. A generic case was relevant because it could strengthen inferences concerning individual claimants and address the defendant’s likely case that Sun journalists did not engage in such conduct. It was more convenient and coherent to plead common matters generically. Allowing the pleading was not disproportionate, although disclosure and investigation would require close case management and appropriate limits.
4. Mr Clegg’s claim. Applying the summary judgment principles, including the caution against a mini-trial identified by Lord Hobhouse in Three Rivers DC v Bank of England (No 3) [2002] 2 AC 1 at paragraph 58, the surviving article-based allegations were not fanciful. Two articles lacked sufficient material capable of supporting an inference of unlawful information gathering and were struck out. The remaining claims survived despite the need to refine the pleaded particulars.
5. The amendment to the Pinetree generic Particulars of Claim was allowed. The strike-out and summary judgment applications were dismissed except in relation to the two identified articles.

First-instance decision. No appellate history is stated in the judgment.