A lesson in contesting particulars of claim

The dangers of a contested application to amend particulars of claim were highlighted in the recent case of Ward v Associated Newspapers Ltd. This case offers a helpful reminder for practitioners to carefully consider the extent to which it is reasonable to spend time and resources on contested interlocutory applications.

The underlying claim was for libel and malicious falsehood in relation to a statement by The Mail on Sunday published online, which Mr Ward alleged severely damaged his reputation. Mr Ward acted in person. The defendant applied to strike out the claim or obtain summary judgment, in what Nicklin J described as a “comprehensive and wide-ranging attack” on Mr Ward’s pleading. In October 2020, he dismissed the defendant’s applications.

Mr Ward was directed to amend his particulars of claim, notably to clarify his case on individuals against whom he alleged malice in support of his claim for malicious falsehood.

The defendant objected to a number of amendments to the particulars of claim and the matter therefore once again came before Nicklin J for the “second substantial interim application with which the court has had to deal in this case before even a defence has been served”.

The judge refused permission for a limited number of amendments, for instance finding that some statements were irrelevant and prejudicial. Other than a few such specific instances, the amendments were generally allowed. Thus, in the judge’s words:

“… having spent what must be a very considerable sum in costs at two substantial hearings, what of any real value has been achieved by the Defendant by this exercise, and which could not have been achieved, instead, by pleading a Defence that set out clearly the parameters of the litigation, is difficult to identify.”

The judge was particularly critical of the defendant’s approach given that Mr Ward was a litigant in person, and it was accordingly likely that the represented defendant could find holes to pick in his pleadings. However, he questioned the value of taking pleading points unless the pleadings revealed some fundamental defects in the litigant in person’s case. His view was that more often than not (and as happened in this case), “such skirmishing” would achieve little beyond delay and increased costs.

The judge found that many of the defendant’s objections to proposed amendments lacked substance. In his view, Mr Ward’s claim was clear, and he should be permitted to advance the amended pleadings as part of his case. It appeared in many instances that the defendant’s objection to the proposed amendments was in fact simply that it disagreed with the premise that Mr Ward set out in the amendments.

The judge considered that a proportionate response would have been to file a defence clearly pleading what was admitted or denied rather than attacking the pleading.

This is not to say that litigators should fear contesting proposed amendments to statements of case. Under CPR 17.1(2), where a statement of case has been served, it can be amended only with the written consent of all other parties or with the court’s permission.

Since the Jackson reforms, the starting point is no longer that courts will allow amendments provided that any prejudice to the other party could be compensated in costs and that it did not harm the administration of justice.

The court’s approach is now to consider various factors, including proportionality and fairness, considering the overriding objective. A balancing act needs to be undertaken between the prejudice to the amending party who would not be able to advance its amended case if permission were refused, and other factors, including prejudice to the other parties. Where amendments are particularly late, the amending party has a heavy burden to show why it would be just to allow the amendment.

Even where there is no question of lateness, a key consideration is that amendments will be refused if it is clear that they have no prospect of success. The contesting party will need to show more than a probability that the case advanced by the amendments will fail. Still, it may be worth attempting to defeat parts of a case at the pleading stage rather than incurring further costs in contesting it through all stages of the proceedings.

As this case demonstrates however, practitioners should carefully consider proposed amendments to a statement of case and be proportionate in their response. A party faced with what it considers to be a flawed pleading may wish to focus its resources on responding to the imperfect case rather than attacking the pleading.

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