Noel Anthony Clarke v Guardian News & Media Ltd

Overlap between an existing claim and a proposed amended claim does not, by itself, make it unfair to try the existing claim first. A judge may adjourn a late amendment or joinder application where the proposed parties need a fair opportunity to respond and determining it before trial would seriously disrupt the trial or prejudice others. The judge must balance that prejudice against the claimant’s risk of unfairness, including any danger that findings in the existing trial will improperly determine the proposed claim. Appellate review is limited to errors of law or principle, failure to consider a material factor, or a conclusion outside the permissible range. The usual course remains to hear and decide amendment applications promptly; deferral is unusual and fact-sensitive. Findings on truth and the public-interest defence under the Defamation Act 2013 may materially assist assessment of linked proposed claims.

The claimant brought libel and data protection claims concerning eight articles published by the defendant. At a pre-trial review, he sought permission to add six defendants and amend the claim to include conspiracy to injure by unlawful means, substantially increased damages, and exemplary damages.

Mrs Justice Steyn directed that the existing liability trial should proceed, adjourned the Amendment Application until after judgment, required service on the proposed new defendants if the application was pursued, and awarded those defendants their costs of attending the review. The claimant appealed, challenging the proposed defendants’ participation, the service direction, the costs order, and the adjournment. The central issue was whether the adjournment was a lawful and fair exercise of case-management discretion: [2024] EWHC 142 (KB).

Permission to appeal was granted, but the appeal was dismissed.

1. Proposed defendants and service. Warby LJ held that, even if the judge’s interpretation of the Civil Procedure Rules was wrong, she had discretion to hear the proposed additional defendants and to direct that they receive advance notice and participate. That course could avoid duplication, costs and delay. The associated costs order was also a discretionary case-management decision. Phillips LJ disagreed with the judge’s construction, considering that CPR 19.4, CPR 23.1 and CPR 23.4 did not require service on a proposed new defendant. He nevertheless accepted that the court could direct service as a matter of practice. Popplewell LJ expressed no view on that point. The disagreement did not affect the result.
2. Adjournment and prejudice. The existing and proposed claims substantially overlapped, but that was insufficient to establish a denial of natural justice or undue prejudice. The judge was entitled to treat the realistic choices as either adjourning the trial for many months or proceeding with the existing liability trial and deferring the Amendment Application. She properly considered the application’s lateness, the preparation required for all proposed defendants, the prejudice to the defendant and third parties, and the claimant’s asserted prejudice.
3. Effect of the liability trial. Findings on truth and on the public-interest defence under the Defamation Act 2013 could materially affect the proposed conspiracy claims. A finding for the defendant on truth would be a significant setback, while findings concerning public interest and reasonable belief could bear on wrongful intent and exemplary damages. That potential overlap did not itself make the procedure unfair.
4. Evidence and appellate review. Cross-examination was not confined to the narrowest reading of the existing pleadings. Questions bearing on truth, public interest and general credit could be asked, including whether witnesses were lying because of a conspiracy, without presenting the whole conspiracy case. The appellate court’s role was review, not substitution. Since the judge made no material error of law or principle, overlooked no relevant matter, and reached a tenable conclusion, intervention was unwarranted.

The usual course is to hear and decide an amendment application promptly. Deferral until after trial is unusual, but the order fell within the generous ambit of the judge’s case-management discretion. The existing liability trial was to proceed, with the claimant able to pursue the Amendment Application after judgment.

• Court of Appeal (Civil Division): Permission to appeal granted; appeal dismissed. The court upheld the case-management directions made at the pre-trial review.
• King’s Bench Division, Media and Communications List: Mrs Justice Steyn directed that the liability trial proceed and adjourned the Amendment Application until after judgment: [2024] EWHC 142 (KB).