Amersi v Leslie and others

The court considered two linked interlocutory applications in a libel claim: the claimant’s application for permission to amend his Particulars of Claim to particularise the statutory serious harm case under s.1 Defamation Act 2013, and the defendants’ application to strike out the original composite pleadings on the same issue. The judge held that, in a case of distinct publications to identified individuals, a claimant must plead and be able to show that each complained-of publication caused or was likely to cause serious harm; aggregated or composite pleading of serious harm was insufficient and contrary to principle.

Applying the summary-merits test for amendments, the judge analysed the contemporaneous evidence about each named publishee and concluded the claimant had no realistic prospect of proving serious reputational harm caused by the publications complained of. Permission to amend was refused and the composite serious-harm paragraphs in the original Particulars of Claim were struck out for failing to comply with CPR PD 53B §4.2(3). Because no adequate particularised case on serious harm could be advanced, the libel claim was brought to an end.

Background and parties: The claimant is a businessman who alleged that the first defendant circulated a series of memoranda ("the Memos") in late December 2020–January 2021 that conveyed multiple defamatory imputations. The defendants are a former MP (first defendant) and CMEC UK & MENA Limited (second defendant). The claimant had earlier issued a data protection claim, obtained disclosure of certain Memos and then brought this defamation action.

Nature of the applications: The claimant sought permission to amend his Particulars of Claim to particularise and clarify his case on serious harm to reputation occasioned by the publications (the Amendment Application). The defendants sought to strike out the claimant’s original composite pleading on serious harm for failing to set out, publication by publication, the facts relied on to satisfy s.1 Defamation Act 2013 (the Strike Out Application).

Issues framed:

• whether a claimant can rely on an aggregated/composite plea of serious harm when suing for distinct publications to identified individuals;
• what the evidential threshold is, at the amendment/summary stage, for permission to amend pleadings on serious harm (the merits/summary judgment test);
• whether, on the evidence before the court, the claimant had a real prospect of proving serious harm caused by each relevant publication.

Court’s reasoning and findings: The judge set out the governing legal principles: the amendment test (merits test equivalent to summary judgment), the need for pleadings to be coherent and supported by evidence and the statutory threshold in s.1 Defamation Act 2013 that publication must have caused or be likely to cause serious harm. The court emphasised that each publication is a separate cause of action and that, where the publishee(s) are identified and small in number, a claimant must normally prove actual impact in the eyes of those publishees rather than rely on broad inference.

The judge examined the evidence publication by publication (Sir David Lidington, Sir Julian Lewis, Crispin Blunt, Sir Alan Duncan, Ben Elliot and Sheikh Fawaz). In each case the contemporaneous evidence either demonstrated no adverse effect caused by the Memo or showed that any adverse reaction could not reliably be attributed to the defendants’ publications (for example because the claimant himself or the subsequent media had circulated material). The court found the claimant had not produced direct witness evidence from the named publishees and that the alleged percolation/republication case was speculative and inadequately linked to the specific publications relied upon.

Procedural and wider observations: The judge criticised the claimant’s litigation strategy, including the delay in bringing the defamation claim, the earlier data protection proceedings, the scope of the pleadings and the claimant’s refusal to provide costs information. The court noted that abusive or disproportionate conduct may be relevant to case management but did not base dismissal solely on abuse of process.

Disposition: Permission to amend was refused; the composite serious-harm pleading in the original Particulars of Claim was struck out for non-compliance with CPR PD 53B §4.2(3); the claimant was not given a further opportunity to re-plead because there was no realistic prospect of remedying the evidential defects; the libel claim was therefore brought to an end.

This was a first-instance disposition. The court refused the claimant permission to amend his Particulars of Claim to particularise serious harm and struck out the composite serious-harm pleading for non-compliance with CPR PD 53B §4.2(3). Applying the merits/summary judgment standard, the judge found the claimant had no real prospect of proving that the publications to the identified individuals had caused or were likely to cause serious harm; accordingly the claim was brought to an end.