Osagie v Serco Ltd & Ors

Permission to amend a statement of case may be refused where the proposed claim has no real prospect of success, is incurably defective, or would constitute an abuse of process. Litigants in person remain subject to the ordinary procedural rules, although the court must take their status into account when managing the case. Defamation pleadings must identify the publication, words, meaning, publication details and serious harm, subject to the applicable cause of action. Statements made in judicial proceedings attract absolute privilege, while employment complaints and workplace communications may attract qualified privilege. A private employer is not thereby a public authority for the purposes of an employee’s claim under the Human Rights Act 1998. Where proposed amendments cannot overcome these difficulties, the claim may be struck out.

The claimant, a former Serco employee, brought claims in defamation, malicious falsehood, negligence and under the Human Rights Act 1998 against Serco and five employees. He sought permission to amend his particulars of claim. The defendants applied to strike out the claim or obtain summary judgment, and the claimant sought to vary an earlier costs order. The proposed claims relied substantially on material disclosed or generated in Employment Tribunal and grievance proceedings. The court considered whether the amendments were properly pleaded, had a real prospect of success, were defeated by privilege or other defences, or amounted to an abuse of process.

The costs order was varied by consent to provide for the defendants’ costs in the case. The claim against the fourth defendant had been discontinued. The remaining applications were determined by reference to the proposed amended particulars.

1. The discretion to permit amendment under CPR r.17 had to be exercised in accordance with the overriding objective. The claimant’s status as a litigant in person did not justify a lower standard of compliance with the rules, although it was a relevant case-management circumstance.
2. An amendment should be refused where the proposed claim had no real prospect of success, could not cure failures to comply with procedural rules, or would be an abuse of process. Particulars of claim were essential to a fair trial because they enabled the defendant to understand and answer the case.
3. The defamation claims failed for multiple reasons, including failure to plead the actual words, publication details, defamatory meanings corresponding to the words, serious harm and, where relevant, special damage. Communications made in judicial or Employment Tribunal proceedings were protected by absolute privilege. Communications between managers concerning employment issues, and complaints to proper internal bodies or whistleblowing channels, were protected by qualified privilege on the pleaded facts.
4. The malicious falsehood claims lacked pleaded pecuniary damage and sufficient particulars of malice. The negligence claim sought to relitigate matters already determined by the Employment Tribunal and was an abuse of process.
5. Serco was not a public authority in relation to the claimant’s employment. The proposed claim under article 8 and sections 6 and 7 of the Human Rights Act 1998 therefore had no reasonable prospect of success and was also inadequately particularised.

Permission to amend each proposed cause of action was refused. The claim was struck out as totally without merit. The claimant was directed to pursue his employment remedies in the proper forum.