Otuo v The Watch Tower Bible And Tract Society of Britain (Contract Claim)

Permission to amend a statement of case is discretionary. The court must refuse an amendment which is unclear, hopeless, abusive or non-justiciable. A very late amendment, particularly one threatening a fixed trial date, carries a heavy burden: the applicant must explain and justify the delay and show why justice requires permission. Payment of the opposing party’s costs is not necessarily sufficient compensation. A defendant to a contractual claim must be a party to the contract allegedly breached. Vicarious responsibility, principally a tort doctrine, does not itself make a person liable for breach of a contract to which that person was not a party.

The claimant brought two slander actions arising from announcements concerning his expulsion from the Jehovah’s Witnesses. He applied shortly before trial to amend the claims to plead breach of contract, relying on a constitution of the Wimbledon Congregation. He also sought to amend his Replies so that the alleged contractual breach could answer pleaded defences and support allegations of lack of legitimate interest and malice.

A previous application to add a contractual claim had been refused by Sir David Eady in [2016] EWHC 46 (QB). The present application raised issues of pleading sufficiency, limitation, delay, case management, contractual parties and the justiciability of the relief sought.

1. Permission to amend the claims. The proposed contractual amendments were dismissed. They failed to disclose a reasonable basis for a claim and were made after culpable and unjustified delay. The evidential material relied upon had been available since April 2018, but the application was not made until shortly before the March 2019 trial.
2. Late amendments. The discretion must be exercised in accordance with the overriding objective. Where a very late amendment may imperil a fixed trial date, the applicant bears a heavy burden to explain the delay, establish the strength of the proposed case and demonstrate why justice to the parties and other court users requires permission. Costs are not necessarily an adequate remedy. The court applied the principles in Worldwide Corporation v GPT, as approved in Swain-Mason v Mills & Reeve and summarised in Quah v Goldman Sachs International.
3. Contractual liability. The proposed case asserted a contract between the claimant and the Congregation, but did not identify any contractual nexus making either defendant a party to that contract. The concept of a non-party acting ultra vires the constitution was not adequately explained. Vicarious responsibility, discussed in A v Watch Tower Bible and Tract Society of Britain, could not overcome the requirement that a contractual defendant be a party to the contract.
4. Relief and justiciability. The judge provisionally considered the prospects of obtaining a mandatory order requiring reinstatement or a particular announcement to be extremely remote, especially given the exceptional nature of injunctions compelling personal or religious relationships. These points were not fully argued and were not necessary to the decision.
5. Replies. Permission was granted to amend the Replies to maintain the allegation that the disfellowship process breached contract. The amendments were confined and could be dealt with proportionately. No further evidence was permitted for the claimant; the defendants could serve further evidence by 1 March 2019 and need not amend their pleadings.

The judgment records earlier interlocutory proceedings in the same litigation. Sir David Eady refused an earlier application to add a contractual claim in [2016] EWHC 46 (QB). The Court of Appeal later reversed the dismissal of Claim 1 on limitation grounds. The present court refused permission to add the contractual cause of action but permitted limited amendments to the Replies.