Jonathan Jason Kingsley v Kim Macaskill

Where a pleading defect is accepted but may be corrected, the court may strike out the defective pleading while preserving an opportunity to file a replacement and determining permission to amend later. The order should make clear that the party is not shut out from defending the claim. Costs ordinarily follow the event. Late preparation of an amended pleading, conscientious pro bono work and health circumstances did not, in this case, displace the successful party’s entitlement to costs. Proportionality and the timing of payment may be dealt with separately.

The claimant brought claims arising from two LinkedIn posts, alleging defamation, data protection breaches and malicious falsehood. The defendant denied liability and wished to rely on statutory defences. The claimant applied to strike out the three-page Defence under CPR 3.4(2), sought judgment under CPR PD3A §4.2, and claimed costs.

The defendant accepted that the Defence did not comply with CPR PD53B and put forward a draft amended Defence. The claimant did not pursue judgment, and the defendant’s permission application was deferred to a case management conference. The central issues were the effect of striking out the existing Defence, the opportunity to amend, and the appropriate costs order.

The court made a procedural order on the claimant’s strike-out application and awarded costs.

1. Defence. The existing Defence was accepted to be non-compliant with CPR PD53B. It was struck out subject to a timetable allowing the defendant to file a final amended Defence, further particulars and evidence. The defendant’s application for permission to amend was deferred to the case management conference. The order did not finally determine whether permission would be granted.
2. Opportunity to amend. Counsel referred to the principle stated in Kim v Park [2011] EWHC 1781 (QB) at paragraph 40. The agreed terms of the order made clear that the defendant was not being shut out from advancing a defence on the merits, while preserving the claimant’s objections to the proposed amendment.
3. Costs. The claimant was entitled to the costs of the application, including the hearing. The application had been precipitated by the defendant’s earlier decision not to amend despite objections later accepted to be well-founded. The late amended Defence, the defendant’s health circumstances and the conscientious pro bono work did not provide a proper basis to limit or deny those costs. Nor was there a proper basis to defer the assessment to detailed assessment.

The amount of the summary assessment and the date for payment were reserved for written submissions. The court accepted its power under CPR 44.7 to specify a deferred payment date.

First-instance procedural hearing. The judgment states no appellate history.