John Alexander Melvin Hemming v Sonia Vanessa Poulton

Permission to amend is governed by the overriding objective and a comparatively low merits threshold, but a new claim must remain arguable, coherent and properly particularised. For defamation, a later publication does not arise from the same or substantially the same facts merely because it repeats similar allegations or meanings. Each publication gives rise to distinct issues, including publication, serious harm and available defences.

Limitation in defamation claims is ordinarily assessed when the amendment application is determined. The exceptional discretion to disapply the one-year period requires a careful balance of prejudice, delay, evidential matters and proportionality. Proceedings may be stayed where a later claim substantially overlaps with existing proceedings and may be disproportionate or abusive, even where strike-out is not yet justified.

The Claimant brought defamation and data protection claims concerning an interview published by the Defendant, and sought permission to add claims concerning four later publications and a harassment claim. He also sought to disapply limitation for three of the proposed defamation claims.

The Defendant sought permission to re-amend her Defence and Counterclaim, including withdrawal of an admission on serious harm. The Claimant separately sought to lift a stay on a later data protection claim concerning an earlier documentary. The parties also made applications concerning alleged breaches of a settlement agreement.

The court determined the amendment, limitation, abuse of process, case-management and costs issues at an interlocutory case management hearing.

1. Amendments and merits. Permission was granted for amendments concerning malice in Publication 1, a new defamation claim concerning Publication 5, the expanded data protection claim and the proposed harassment claim. The amendments were arguable, coherent and supported by factual material. At this stage the court should not conduct a mini-trial. A new claim requires a real prospect of success, whereas further particulars supporting an existing pleaded point should not ordinarily be subjected to that assessment: Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33 and CNM Estates (Tolworth Tower) Ltd v Simon Peter Carvill-Biggs Freddy Khalastchi [2023] EWCA Civ 480.
2. Publications 2–4. Permission was refused under CPR 17.4. Each publication gives rise to a separate defamation cause of action. Similar words, meanings, factual background or public-interest arguments do not by themselves constitute the same or substantially the same facts. The relevant inquiry is whether the defendant would otherwise have to investigate matters outside the ambit of the existing claim: Ballinger v Mercer Ltd [2014] EWCA Civ 996; Komarek v Ramco Energy Plc (unreported, 21 November 2002); and Economou v de Freitas [2016] EWHC 1218 (QB).
3. Limitation. The causes of action accrued on publication and the one-year periods had expired. Limitation is assessed when the amendment application is determined. The proposed claims were not within the exceptional circumstances justifying disapplication under section 32A of the Limitation Act 1980. Prejudice to the Defendant, delay, the existing claims’ capacity to provide vindication and the disproportionate complexity of the proposed claims outweighed the Claimant’s prejudice: Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409; Bewry v Reed Elsevier UK Ltd [2014] EWCA Civ 1411; and Lokhova v Longmuir [2016] EWHC (QB) 2579.
4. Serious harm and admission. The Defendant was permitted to plead an echo-chamber case as a further particular of her denial of serious harm. Its success depended on fact-sensitive questions concerning the audience, the relevant sector of reputation and the nature of any closed environment: Banks v Cadwalladr [2023] EWCA Civ 219. Permission to withdraw the conditional admission that the Claimant’s pleaded meanings satisfied the serious-harm threshold was refused. It was a clear admission, made long before the application, on which the Claimant had relied.
5. Separate data protection claim. The stay on the KB claim was maintained. The claim was not struck out as an abuse of process, but there were substantial concerns about delay, overlap, collateral purpose and proportionality. If pursued, it would ordinarily be consolidated or case-managed with the QB claim to avoid inconsistent findings and duplicated costs.
6. Settlement applications and directions. The applications concerning alleged breaches of the settlement agreement raised factual disputes and required formal statements of case and further case management. The claim and counterclaim were not suitable for immediate determination. The court gave directions for amended pleadings, disclosure, costs budgets and a further case management conference.

The First Application therefore succeeded in part; the Second Application was dismissed; the Defendant obtained permission to amend but not to withdraw the admission; and the stay on the KB claim was not lifted.

First instance interlocutory decision. The judgment records earlier case-management decisions, including Hemming No. 1, but no appeal from those decisions is stated.