Hijazi v Yaxley-Lennon (Rev 1)

Permission to amend a statement of case depends on whether the proposed case has a real prospect of success, is adequately particularised and can be introduced without unfairness or disproportionate disruption. A public interest defence under Defamation Act 2013 s.4 requires clear pleading of the three statutory stages: public interest, the defendant’s actual belief, and the objective reasonableness of that belief. The pleading must identify the information available, the investigations undertaken and their timing before publication. Objective truth is not a substitute for pleading the defendant’s belief. Delay, lack of candour and the effect on case management may justify refusing permission, even where the defence is not bound to fail on its merits. Amendments expanding a properly arguable defence of truth may nevertheless be permitted.

The claimant brought a libel claim concerning two videos published on Facebook by the defendant. The defendant admitted publication, defamatory meaning and serious harm. Following an earlier meaning ruling, the defendant served an amended defence pleading an expanded defence of truth and, for the first time, a public interest defence under s.4 of the Defamation Act 2013.

The claimant opposed the amendments, contending that the public interest defence was inadequately pleaded, lacked a real prospect of success and had been introduced unjustifiably late. The central issues were whether permission should be granted to add the public interest defence and whether permission should be granted for the further particulars of truth.

1. Disposition. Permission to amend was refused insofar as the defendant sought to add the public interest defence. Permission was granted for the amendments to the particulars of truth.
2. The threshold for permission to amend is equivalent to that on a summary judgment application. The applicant must show a real, rather than fanciful, prospect of success. The proposed pleading must contain sufficient detail, disclose reasonable grounds and be coherent and properly particularised. The court may reject a case that is implausible, self-contradictory or unsupported by contemporaneous material: Elite Property Holdings Ltd v Barclays Bank plc [2019] EWCA Civ 204; ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472; Three Rivers District Council v Bank of England (No.3) [2003] 2 AC 1.
3. A s.4 defence has three stages: whether the statement was on a matter of public interest, whether the defendant believed publication was in the public interest, and whether that belief was reasonable. The belief is subjective, but its reasonableness is assessed objectively in all the circumstances. The defence is available beyond traditional professional journalism, including potentially to social-media publishers. Since the law remains developing in that context, the court should ordinarily avoid determining the defence summarily where properly pleaded facts require a trial.
4. The draft public interest defence failed to separate objective truth from the defendant’s belief. It did not adequately identify the defendant’s pre-publication investigations or their chronology, and it misstated the statutory test. Material obtained after publication could not support the defence. The defendant therefore had not pleaded a coherent case with a real prospect of success.
5. The defendant’s delay and lack of candour were independently significant. He had long intended, on his own evidence, to rely on the defence but did not disclose that intention before costs budgeting or the earlier meaning decision. The resulting disruption, delay and burden on court resources could not be addressed merely by a costs order. The court nevertheless left open the possibility of a further, properly particularised application supported by a satisfactory explanation.
6. The amendments to the particulars of truth principally expanded and clarified the existing defence and had a real prospect of success. The distinction between proving objective truth and proving a subjective belief in the public interest was fundamental. The court directed that the remaining procedural wrangling should cease and that the case should proceed expeditiously to trial.

First-instance decision on an application for permission to amend the defence. The judgment refers to an earlier meaning decision, [2020] EWHC 934 (QB), but no appellate history is stated.