Noel Anthony Clarke v Guardian News and Media Limited

Permission to amend shortly before trial is governed by the overriding objective and requires a careful balance between the applicant’s interests and prejudice to the opponent, other litigants and court users. Lateness is material, especially where the applicant has no good explanation. An amendment must disclose an arguable and coherent case, properly particularised and supported by an evidential basis. The court should avoid a mini-trial, but should refuse an amendment that merely advances bare denials or grave allegations without particulars. Allegations of bad faith, dishonesty or conspiracy require a high standard of pleading. A limited amendment may be allowed where it clearly identifies an arguable complaint and causes no real prejudice.

The claimant brought defamation and data protection claims against the defendant. The defendant relied on the public interest defence under Defamation Act 2013, section 4. On the first hearing day of the liability trial, the claimant applied to re-amend his Amended Reply. The proposed amendments challenged the defendant’s pleaded account of its initial information and investigation, and alleged that journalists and sources participated in a conspiracy and acted in bad faith.

The court had to determine whether the amendments were sufficiently pleaded, whether they were made too late, and how the competing prejudice should be balanced under the Civil Procedure Rules and the applicable media and communications procedure.

1. Outcome. The application was refused, except that permission was granted to add to paragraph 94 the allegation that the investigation was inadequate and unfair because of a complete lack of critical scrutiny of evidently hostile sources.
2. The application was made very late, having been filed during the liability trial. Although granting permission would not necessarily adjourn the trial, an application served on the eve of trial may still be very late. The claimant had provided no explanation for the delay, despite having considered the alleged conspiracy relevant since September 2024.
3. Under CPR 17.3, the court had to apply the overriding objective and balance the prejudice to the claimant if permission were refused against the prejudice to the defendant and other court users if it were granted. The claimant’s own conduct reduced the weight of prejudice said to arise from refusing permission.
4. The proposed bare denials of the detailed facts concerning the initial sources and the investigation did not comply with CPR 16.5(2), since they did not state the claimant’s reasons or his own version of events. They were also too deficient to be allowed at such a late stage.
5. The merits threshold for an amendment is comparatively low. The court should not conduct a mini-trial. Nevertheless, the proposed case must be arguable, coherent, properly particularised and supported by evidence establishing a factual basis. The proposed allegations of obvious inconsistencies were unparticularised.
6. The allegations that the journalists knew of a conspiracy, deleted cogent evidence, participated in the conspiracy and acted in bad faith fell far below the high standard required for grave allegations of this nature. The defendant had also lacked an opportunity to address them in its trial witness statements. The Court of Appeal had held that the claimant was not unfairly restricted in cross-examination on the existing pleadings, so the prejudice from refusal was limited.
7. The permitted allegation concerning inadequate scrutiny of hostile sources was sufficiently clear and arguable. It was not an allegation of malice, and the defendant suffered no real prejudice because its existing public interest case addressed the sources’ possible motivations.

The judgment records that the claimant’s earlier application to join proposed defendants and amend the claim was adjourned until after the liability trial: [2025] EWHC 142 (KB). The Court of Appeal dismissed an appeal against that order: [2025] EWCA Civ 164. This application to re-amend the Amended Reply was then determined by the High Court.