Wednesday Law Report: Reamendments would be allowed

9 June 1999

McPhilemy v Times Newspapers Ltd and others

Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Judge and Lord Justice May) 21 May 1999

ALTHOUGH THE court would strive to manage a case so as to minimise the financial burden on a litigant of slender means, that did not extend to refusing to allow the amendment of pleadings and thus excluding potentially important evidence which was central to a legitimate defence.

The Court of Appeal dismissed the plaintiff's appeal against an order allowing the defendants to reamend their defence in libel proceedings.

The plaintiff, a journalist and managing director of a television production company, commenced libel proceedings against the defendants for an allegedly defamatory publication in an article in the Sunday Times on 9 May 1993. The article was about a programme produced by the plaintiff's company, the general thesis of which was that between 1989 and 1991 there had been a murder conspiracy in Northern Ireland involving Loyalist terrorists, prominent members of the Loyalist community and officers of the Royal Ulster Constabulary.

The Sunday Times article claimed that the programme was a hoax. The defendants pleaded justification, and later sought to reamend their defence. The plaintiff opposed the application, submitting that the effect of the reamendment would be to put in issue the truth of the programme's thesis, and that any such meaning was outside the range of meanings which the words in the article were capable of bearing.

He submitted that the lowest meaning which the defendants should be permitted to plead was that he had been recklessly involved in producing the hoax film. The judge held that it was fundamental to the article that the allegations in the programme were false and that the defendants were, in principle, entitled to justify that proposition as an essential part of their case of justifying their defamatory allegations about the plaintiff's association with the programme. The plaintiff appealed.

James Price QC and Matthew Nicklin (Bindman & Partners) for the plaintiff; Andrew Caldecott QC (Henry Hepworth) for the defendants.

Lord Justice May said that the judge had come to a correct general conclusion as to meaning. The truth or falsity of the main thesis of the programme had been part of the battleground in the proceedings from the start, on both sides.

On the appeal, the unduly wide scope of the evidential enquiry which would be engendered by the reamendments had been stressed on the plaintiff's behalf in the context of the court's duty under the Civil Procedure Rules to deal with cases justly including, so far as practicable, a duty to ensure that the parties were on an equal footing, and to deal with cases in ways which were proportionate to the financial position of each party and to the importance and complexity of the case.

Although the appeal was from a decision which had been made well before the Civil Procedure Rules came into effect, Part I of the Rules nevertheless embodied important considerations which were in substance already part of the proper approach to the conduct of libel actions when the decision had been made. As with all actions, libel actions should, by proper case management, be confined within manageable and economic bounds. They should not descend into uncontrolled and wide-ranging investigations akin to public inquiries unless that was necessary to determine the real issue between the parties.

The court would strive to manage a case so as to minimise the burden on litigants of slender means. That included excluding all peripheral material which was not essential to the just determination of the real issues between the parties. It did not, however, extend in the present case to the exclusion of potentially important evidence which was central to a legitimate substantial defence. The defendants should not be deprived of an important element of their case of justification, and there was a real risk that vindication of the plaintiff in a case from which that element had been removed would nevertheless be seen as vindication of his thesis.