Haven Solicitors Ltd & Anor v Police Federation Of England And Wales & Anor

Permission to amend should be assessed by balancing the applicant’s injustice if permission is refused against litigation finality and the prejudice to other parties and litigants. Relevant considerations include timing, explanation, clarity, particularity, prospects, prejudice and legitimate advantage.

In a malicious falsehood claim, a claimant need not identify individual publishees who understood the pleaded meaning at the pleading stage where access to relevant witnesses is controlled by the defendants. A statement of opinion may found such a claim if capable of being proved true or false. Preliminary trials should not be ordered where lack of witness access would make them unjust or disproportionate.

The claimants, a solicitors’ firm and its principal, brought claims in slander and malicious falsehood arising from statements allegedly made by the second defendant at a Police Federation workshop. They sought permission to amend their Particulars of Claim to rely on a list of 26 criticisms read at the meeting, including a malicious falsehood claim concerning 11 allegations.

The defendants opposed that amendment and sought preliminary determination of publication, meaning, and fact or opinion. The claimants also sought an injunction concerning access to potential witnesses.

1. Amendment permitted. Applying the overriding objective, the court balanced injustice to the claimants if amendment was refused against finality and prejudice if it was allowed. The Defence had already placed the list’s publication, contents, truth, seriousness, effect and possible malice substantially in issue. The amendment therefore added little to the factual dispute.
2. The application was not late in the relevant sense. Its timing was sufficiently explained, and the proposed pleading had adequate clarity and particularity. Any further difficulty could be addressed by a request for further information. The claim had a realistic prospect of success despite possible causation difficulties at trial.
3. In the unusual circumstances, the claimants were not required at pleading stage to identify individual attendees who understood the list in the pleaded sense. The relevant witnesses were inaccessible without the defendants’ cooperation. Applying such a requirement would create a manifest risk of injustice.
4. A statement of opinion is not invariably incapable of founding malicious falsehood. An opinion capable of proof may do so. The challenged items were more likely to convey factual failings and were not shown to be unverifiable opinions.
5. The court refused, for the time being, to order preliminary trials on publication, meaning or fact and opinion. Without witness access, such trials would be unjust, potentially untidy and unlikely to achieve proportionate savings.
6. Directions were ordered for the Injunction Application. Costs orders were made concerning the amendment, preliminary-issue and injunction applications.