The Duke of Sussex v News Group Newspapers Limited

Permission to amend is governed by the overriding objective, proportionality, prejudice, lateness, clarity and the merits of the proposed case. A proposed amendment must disclose more than an arguable case and have a real, rather than fanciful, prospect of success.

Where an amendment introduces a new cause of action and limitation is arguably in issue, the court must apply CPR Part 17.4 and section 35 of the Limitation Act 1980. An order postponing the limitation question may exceptionally be made, but only with caution and after considering prejudice, case management and the purposes of limitation legislation.

Consequential amendments must remove struck-out causes of action and identify the surviving causes of action with sufficient particularity. Evidence of similar facts should not be pleaded as though it were part of the causes of action.

The claimant sought permission to amend a long-running claim against the defendant concerning alleged misuse of private information through voicemail interception, blagging and unlawful information gathering by private investigators.

Following an earlier summary judgment decision striking out claims based on mobile voicemail interception and accessory wrongdoing, the claimant proposed consequential amendments and extensive voluntary amendments. The latter included allegations concerning landline interception, earlier and later periods, breach of confidence, IMSI-catchers, and events involving Meghan Markle.

The court considered whether the consequential amendments complied with the earlier order, whether the voluntary amendments were late or very late, whether they introduced new claims within CPR Part 17.4 and section 35 of the Limitation Act 1980, whether they had a real prospect of success, and whether they were adequately pleaded.

1. Consequential amendments. The claimant had failed to comply fully with the earlier order. The draft pleading retained extensive allegations of mobile voicemail interception and accessory wrongdoing, while attempting to rely on them as similar-fact evidence. The surviving claims had not been identified with sufficient particularity. The claimant was required to remove the struck-out case and plead clearly the remaining claims based on blagging and non-accessory unlawful private-investigator activity.
2. Amendment principles. Permission to amend is a discretionary case-management decision governed by the overriding objective. The court must weigh prejudice, delay, disruption, cost, proportionality, compliance with procedural requirements and the effect on the trial date. A proposed new claim must have a real prospect of success. Further particulars of an existing compendious claim need not independently satisfy that test, but must remain clear and adequately particularised.
3. Limitation. New landline-interception claims, claims relating to 1994 and 1995, and the 2016 claim were new claims rather than further particulars. They did not arise out of the same or substantially the same facts as the existing claims and were subject to arguable limitation defences. The 1994/1995 and 2016 claims should be pursued, if at all, in fresh proceedings. A limited landline claim could proceed by an order deeming it issued on a later date rather than on the date of the original claim form.
4. Breach of confidence. The substituted claims were new claims, but claims from 1996 to October 2000 might arise from the same or substantially the same facts as the existing claims. Permission was withheld until the claimant pleaded the confidential information, the facts giving rise to the duty of confidence and the alleged breach with sufficient particularity.
5. Other amendments. Amendments adding IMSI-catcher allegations against Ikon Pictures were further particulars of the existing private-investigator claim. Certain amendments naming individuals and adding particulars were permitted subject to clarification. Amendments that merely pleaded evidence, or expanded the struck-out voicemail-interception case, were refused.
6. The application was therefore granted in part and refused in part, subject to the detailed directions in the judgment and Appendices 1 and 2.