Fox v Boulter [2012] EWHC 3183 (QB)

[2012] EWHC 3183 (QB)Case No HQ12X002414
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/11/2012
Before
THE HONOURABLE MR JUSTICE TUGENDHAT
Between
LIAM FOX MPClaimantHARVEY BOULTERDefendant
Ms Alex Marzec (instructed by PSB Law) for ClaimantMr Mathew Nicklin (instructed by DLA Piper) for DefendantHearing Hearing date: 8 November 2012
Judgment
[1]This is an application by the Defendant ("Mr Boulter") for a ruling pursuant to CPR PD53 para 4.1(1) that the words complained of in this libel action are not capable of bearing the meaning attributed to them by the Claimant (“Dr Fox”) in his Particulars of Claim, nor any other meaning defamatory of him. The claim form was issued on 23 July 2012. Particulars of Claim are undated, and were drafted by Dr Fox’s former counsel. Mr Boulter’s application notice was dated 15 October.[2]On 7 November, the day before the hearing of that application, Ms Marzec put forward a draft Amended Particulars of Claim. Mr Nicklin objected to parts of the proposed amendment on grounds of limitation. He also complained of the lateness of this application, but he rightly took no point on Dr Fox not having issued an application notice.[3]At the hearing I gave permission for those amendments to be made as to which Mr Nicklin raised no issue of limitation. I reserved judgment on Mr Boulter’s meaning application, and on the remainder of Dr Fox’s application to amend.[4]The meaning application was argued by both counsel on the basis of the original Particulars of Claim. But as the Court of Appeal said in Modi v Clarke [2011] EWCA Civ 937 “the court must under CPR PD 53 para 4.1 consider not only the pleaded meaning but also "whether the statement is capable of bearing any other meaning defamatory of the claimant", the court must consider any meanings that can properly be advanced”.[5]That is so, even if, as in that case, no meaning other than the pleaded meaning has been advanced before the court by the claimant.[6]So Ms Marzec submitted that I could not ignore the draft amendments, even though the argument on meaning was conducted before I had heard her application for permission to amend.

THE PARTICULARS OF CLAIM

[7]It is convenient at this point to set out the material parts of the draft Amended Particulars of Claim, because they also include the original Particulars of Claim (the proposed amendments being shown by underlining and crossing out, in the usual way): “1. The Claimant is the Member of Parliament for North Somerset and from 12th May 2010 until 14th October 2011 was the Secretary of State for Defence. 2. The Defendant is a British businessman principally resident in Dubai (but who also maintains a residence in the UK) and is the Chief Executive Officer of Porton Capital Inc, a Cayman Islands based legal entity, which conducts business in the UK, Dubai and other jurisdictions. 3. In June 2011 the Defendant was the subject of widely reported allegations (“the Allegations”) which he has characterised as being to the effect that he was guilty or there were strong grounds to suspect that he was guilty of an unlawful campaign of blackmail against 3M Co. in an effort to extort millions of dollars in settlement of a hopeless piece of litigation. The Allegations arose following the Defendant’s sending of two emails to 3M’s lawyers on 18th and 19th June 2011. The Allegations were the basis of a legal claim against the Defendant brought by 3M Co., a US corporation (“3M”). The Defendant counter-sued 3M for libel in England. These matters were well publicised in the national press. 4. Some months later, on or about 7th November 2011 the Defendant published or caused to be published by an exclusive televised interview he had arranged and gave with Sky News or Sky Television which was broadcast on 7th November 2011 and which was posted at Internet address news.sky.com/story/898791/fox-and-werrity-to-be-court-witnesses (where it remains to this day where it remained until it was removed in or about October 2012) and transcribed there within an article under the headline “Fox And Werritty ‘To Be Court Witness’”, to an enormous but necessarily unquantifiable number of television and Internet viewers and readers, the following words defamatory of the Claimant: ‘We plan on calling Dr Liam Fox and his pal Adam Werrity to give evidence in some of these ongoing legal disputes so they can tell the truth and so we can debunk these baseless allegations against me. This will also shine a spotlight on some of the murkier side of politics and lobbying and we need to get into some of those aspects in a little more detail. For instance, Atlantic Bridge, Fox’s so-called charity which looks like a political lobbying group, and some of its connections into the US. I don’t know what we will find at the moment but there are a lot of unanswered questions and until some of those questions are answered we will have to keep looking.… It does warrant some pretty hard questions being asked, and at some point they have to come forward and answer some of those tough questions.… They have stated they will be willing to come forth and give evidence in the US. I hope when they get there they can put their hand on the bible and tell the truth – and I suspect they will be forced to come if they do not do it willingly’. 5. In their natural and ordinary meaning and/or by way of innuendo the said words meant and were understood to mean that reprehensibly and dishonourably although he was uniquely in a position to do so the Claimant had failed to speak out with the truth in order to debunk the supposedly baseless Allegations made publicly against the Defendant, the gravity and discredit of which omission was reflected by the fact that if the Claimant did not attend court voluntarily in the United States to exonerate the Defendant then the Claimant would be compelled by legal process to attend…. [there then follow six sub-paragraphs of Particulars of Innuendo]” ‘We plan on calling Dr Liam Fox and his pal Adam Werrity to give evidence in some of these ongoing legal disputes so they can tell the truth and so we can debunk these baseless allegations against me. This will also shine a spotlight on some of the murkier side of politics and lobbying and we need to get into some of those aspects in a little more detail. For instance, Atlantic Bridge, Fox’s so-called charity which looks like a political lobbying group, and some of its connections into the US. I don’t know what we will find at the moment but there are a lot of unanswered questions and until some of those questions are answered we will have to keep looking.… It does warrant some pretty hard questions being asked, and at some point they have to come forward and answer some of those tough questions.… They have stated they will be willing to come forth and give evidence in the US. I hope when they get there they can put their hand on the bible and tell the truth – and I suspect they will be forced to come if they do not do it willingly’.

THE LAW TO BE APPLIED ON THE MEANING APPLICATION

[8]The principles to be applied by the court on a meaning application such as this one are not controversial. In deciding what meaning words are capable of bearing for the purposes of defamation the court must have in mind the guidance given in Skuse v Granada Television, summarised most recently by Sir Anthony Clarke MR in Jeynes v News Magazines Limited[2008] EWCA Civ 130 at paragraph 14:
"The legal principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…" …. (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense."
[9]On meaning applications the court must also bear in mind Jameel v The Wall Street Journal Europe Spry [2003] EWCA Civ 1694; [2004] EMLR 6, at para 14 where all members of the court agreed with Simon Brown LJ, as he then was, who said:
“…every time a meaning is shut out (including any holding that the words complained of either are, or are not, capable of bearing a defamatory meaning) it must be remembered that the judge is taking it upon himself to rule in effect that any jury would be perverse to take a different view on the question. It is a high threshold of exclusion. … the meaning of words in civil as well as criminal libel proceedings has been constitutionally a matter for the jury. The judge's function is no more and no less than to pre-empt perversity. That being clearly the position with regard to whether or not words are capable of being understood as defamatory or, as the case may be, non-defamatory, I see no basis on which it could sensibly be otherwise with regard to differing levels of defamatory meaning. Often the question whether words are defamatory at all and, if so, what level of defamatory meaning they bear will overlap.”
[10]There are other legal principles to be taken into account, which make this meaning application more complicated than such applications normally are.[11]Where a publication contains more than one allegation, and they are separate and distinct allegations, it is open to a claimant to choose which allegations to sue upon: Cruise v Express Newspapers Ltd [1999] QB 931. If a claimant chooses to sue upon one distinct and specific allegation, then a defendant may not seek to justify another allegation in the publication about which the claimant has chosen not to complain. So the decision of a claimant as to what words to complain about can be one of the most significant matters in a defamation action.[12]The meanings of words for the purposes of defamation are of two kinds. There may be a natural and ordinary meaning, and there may be an innuendo meaning. The distinction is explained in Gatley on Libel and Slander 11th ed at para 3.17 by citation from Jones v Skelton [1963] 1 WLR 1362 at 1370-1 as follows: “The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v. Daily Telegraph Ltd. [1964] AC 234. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense”.[13]The significance of the draft amendment to the Particulars of Claim to plead an innuendo is that an innuendo is a separate cause of action (see below). Mr Nicklin submitted that the facts pleaded in para 3 of the original Particulars of Claim are extrinsic facts passing beyond general knowledge, and so that they can be relevant, if at all, only to an innuendo. But the only meaning pleaded in para 5 of the original Particulars of Claim was a natural and ordinary meaning. Further, the date of the hearing was 8 November 2012, and the limitation period for defamation is one year. So, Mr Nicklin submits, the innuendo meaning to be introduced by the proposed amendment arising out the publication pleaded as having occurred on 7 November 2011 would be statute barred.[14]Ms Marzec submits that the facts pleaded in para 3 of the original Particulars of Claim are not extrinsic facts, but part of the circumstances of the publication. The meaning of words must be determined in their context and in the circumstances of their publication: Gatley para 3.29. In the first example there given: “… the statement that C left in a hurry on its face imports nothing bad to C, but wears a different air when the context shows that what he left was his employment and there were disciplinary proceedings pending”.[15]While the words are not technical terms, in this judgment I shall use the word “context” to refer to all the words of the broadcast and website publications identified in para 4 of the Particulars of Claim which are not specifically selected for complaint in that paragraph. And I shall use the word “circumstances” to refer to matters not mentioned in the publications so referred to, but which include the matters alleged and pleaded in para 3 of the original Particulars of Claim, and the further matters which are the proposed amendments to para 3 and to para 5.[16]Whether or not circumstances of a publication amount to extrinsic facts, to be pleaded as such in support of an innuendo, or general knowledge, which can be relied on in support of a natural and ordinary meaning, may be an issue between the parties. It is not commonly an issue in a defamation action, but it is an issue in this case.

THE PUBLICATIONS IN QUESTION

[17]The publications which included the words complained of are twofold. There is the publication by broadcast on 7 November (“the broadcast”), and there is the publication of an article on the website (“the website publication”). The website publication includes quotations from the broadcast, and the words complained of were published both in the broadcast, and as part of the website publication, in which they appear in quotation marks.[18]Dr Fox has not pleaded, and I understand does not have, a transcript of the broadcast. Since the context in which the words complained of appear in the broadcast may be different from the context in which they appear in the website publication, the words complained of could bear different meanings in the two different contexts. However, only one meaning is pleaded, and it is that meaning which I must consider first.[19]Ms Marzec submits that the court must have regard to the context in which the words complained of appear in the website publication. That publication consists of the following, under the heading “Fox And Werritty ‘To Be Court Witnesses’” (the numbering is added): 1) “The Dubai businessman at the heart of Liam Fox’s departure from government wants to force the former defence secretary and his friend and self-styled adviser Adam Werritty to answer questions in open court as to the exact nature of their much-criticised working relationship. 2) Harvey Boulter, who had a meeting with Dr Fox brokered by Mr Werrity, intends to subpoena both men to appear as he counter-sues US technology giant 3M in the British courts. 3) The Prime Minister had said that all questions about Mr Werritty, his numerous visits to the Ministry of Defence, his trips overseas, and business cards which claimed he was an adviser to Dr Fox, would be answered- but a Cabinet Office-led investigation left many dissatisfied. 4) Dr Fox resigned as Defence Secretary on October 14, following weeks of questions and speculation. 5) Speaking exclusively to Sky News, Mr Boulter said:
“We plan on calling Dr Liam Fox and his pal Adam Werritty to give evidence in some of these ongoing legal disputes so they can tell the truth and so we can debunk these baseless allegations against me. 6) “This will also shine a spotlight on some of the murkier side of politics and lobbying group, and some of its connections into the US. 7) “For instance, Atlantic Bridge, Fox’s so-called charity which looks like a political lobbying group, and some of its connections into the US. 8) “I don’t know what we will find at the moment but there are a lot of unanswered questions and until some of those questions get answered we will have to keep looking” he added. 9) If Mr Boulter is successful I would be the first time Mr Werritty would be required to answer questions in public as to why he was given unprecedented access to the then - Defence Secretary- and whether or not, as some have alleged, he was pushing a right wing Atlanticist foreign policy at Dr Fox’s request. 10) Mr Boulter said he felt “defrauded” by Mr Werritty’s claim to be an advisor to Dr Fox. 11) “It does warrant some pretty hard questions being asked, and at some point they have to come forward and answer some of those tough questions,” he said. 12) “I am concerned myself that I shared a considerable amount of information with somebody who purported to be an adviser to the minister, part of the Ministry of Defence and clearly he wasn’t – and so I have no clue where that sensitive information has gone and I personally feel that I’ve been defrauded. 13) Dr Fox has previously said he would be happy to travel to the US to speak in any legal action there. 14) “They have stated they will be willing to come forth and give evidence in the US,”
Mr Boulter said. 15) “I hope when they get there they can put their hand on the bible and tell the truth – and I suspect they will be forced to come if they do not do it willingly. 16) Mr Boulter’s company the Porton Group is currently in a legal battle with 3M bought MoD technology it was claimed could detect the MRSA superbug. 17) Following the meeting between Dr Fox and Mr Boulter, it was reported that the businessman wrote two emails in which he threatened that the British Government could reconsider the knighthood granted to 3M’s British chief executive if the case was not settled. 18) On Monday, Mr Boulter claimed a victory in his fight with 3M when the High Court in London found 3M was “in material breach of its obligation” under an agreement to actively market the MRSA test, Baclite 19) “I am delighted that we have been vindicated in our attempt to force 3M to face up to their responsibilities,” he said. 20) “But the victims here are those infected with MRSA. A weapon in that fight was wrongfully abandoned by 3M. 21) “This is a question of trust and honour which in my opinion seems to have been sadly lacking in 3M’s behaviour. 22) “The judge has made it quite clear that 3M did not live up to its promises,” he added. 23) Kevin Jones MP, Labour’s shadow defence minister, responding to the news that Mr Boulter intends to subpoena both Liam Fox and Adam Werritty, said:
“There are big, unanswered questions remaining over Liam Fox and Adam Werritty’s activities. 24) “It is regrettable that US courts rather than the UK Government may reveal the full facts. The Prime Minister’s investigation was inadequate and there is much evidence which merits real scrutiny. 25) “It is important that we understand what happened at one of the Government’s most sensitive departments for the 18 months Dr Fox was in office, in order to be confident that similar activities will never take place again. The Government should have a full and thorough investigation”
.

SUBMISSIONS ON MEANING

[20]Mr Nicklin submits that the words selected by Dr Fox for complaint in para 4 of the original Particulars of Claim are incapable of bearing any defamatory meaning. All they say is that Mr Boulter plans to call Dr Fox to give evidence in legal proceedings, that he has said he is willing to give evidence, and that Mr Boulter hopes that “when they get there they can put their hand on the bible and tell the truth”. And he adds that he suspects they will be forced to come if they do not do it willingly. Mr Nicklin submits that there are many good reasons why a person who has evidence to give in a case may be unwilling to give unless compelled to do so. Examples include people under obligations, for example of confidentiality, which may make it difficult for them to give evidence unless compelled to do so. So he submits that it cannot be defamatory of a person to say of him that he is unwilling to give evidence unless compelled to do so by an order of the court.[21]Mr Nicklin submits that it is wrong for Dr Fox to ask the court to find a meaning which incorporates a reference to the facts pleaded in para 3 of the Particulars of Claim. He submits that these are not part of the context, but would be relevant, if at all, only to an innuendo meanings, which has not been pleaded. However, he did not apply to strike out para 3 of the original Particulars of Claim.[22]Ms Marzec submits that the court should have regard to both the context and the circumstances of the publication. As to the context she refers in particular to the disparaging words included in the parts of the website publication which are not complained of as defamatory: “his pal” (para (5)); “the murkier side of politics and lobbying” (para (6)); “so-called charity” (para (7)); paras (8) and (11). In that context, she submits, the words complained of could be understood by the hypothetical reasonable reader as not being a neutral account of the matter along the lines suggested by Mr Nicklin.[23]Thus Ms Marzec submits that the words complained of, in their context, are capable of bearing the defamatory meaning pleaded, to the effect that Dr Fox has been behaving in a reprehensible way.[24]Ms Marzec submits that the words “They have stated they will be willing to come forth and give evidence in the US” may reasonably be understood, not as confirmation that Dr Fox is willing to do his alleged duty, but rather that as expressing Mr Boulter’s scepticism. They can be understood as meaning that, having said he would do his alleged duty, Dr Fox was not in fact willing to do it, and that he could not be relied upon to tell the truth even if he were compelled to give evidence.[25]Ms Marzec submits, independently from her submissions on context, that the facts pleaded in para 3 of the original Particulars of Claim were sufficiently generally known to amount to circumstances relevant to a natural and ordinary meaning, and not extrinsic facts which might give rise to an innuendo meaning.[26]She submits that the website publication refers to “allegations” in para (5). The nature of the allegations is not spelt out in the website publication, but that is because by 7 November 2011 the public at large knew what those allegations were. All that para 3 of the original Particulars of Claim is doing is setting out those matters which would have been known to the hypothetical reasonable reader on and after 7 November 2011. They had been well publicised in the preceding weeks and months, particularly in The Guardian newspaper, which had originally broken the story that 3M was alleging that Mr Boulter was blackmailing that company.[27]Mr Nicklin replies that Ms Marzec cannot rely on parts of the website publication of which she does not complain in order to attribute a different, and defamatory, meaning to the otherwise neutral words of which Dr Fox does complain. Dr Fox has elected to confine his complaint to specific allegations, and must live with the consequences of that (no doubt carefully considered) choice.

DISCUSSION

[28]I accept Mr Nicklin’s submission that merely to say of a person that he is unwilling to give evidence unless compelled to do so by an order of the court imports nothing bad to that person.[29]But in my judgment Ms Marzec’s submissions are to be preferred. It is important to bear in mind that the test the court must apply at this stage is not what the words mean, but what they are capable of meaning.[30]I feel able to reach this conclusion on a narrow basis. In my judgment the words “They have stated they will be willing to come forth and give evidence in the US” are capable of being understood in their context as expressing scepticism as to whether Dr Fox really was willing do what he stated he was willing to do. And on that interpretation, the words complained of in the original Particulars of Claim are capable of meaning that Dr Fox had failed to speak up to clear the name of Mr Boulter of a grave but baseless allegation, when he could do so, and had said that he would do so. That is a meaning which in my judgment imputes reprehensible conduct and is capable of being defamatory.[31]On a broader basis I would also find in favour of Dr Fox. In this application it is not possible for the court to decide whether the matters pleaded in para 3 of the Particulars of Claim were general knowledge, such as to support a natural and ordinary meaning, or special knowledge, that could support only an innuendo meaning. That is a question of fact for trial. Unless and until that question is decided adversely to Dr Fox, it is impossible to decide that the words complained of are incapable of bearing a meaning defamatory of him in the circumstances which are relevant to the issue of meaning.[32]For these reasons, on the meaning application I hold that the words complained of are capable of bearing the defamatory meaning attributed to them by Dr Fox.

THE APPLICATION FOR PERMISSION TO AMEND

[33]The proposed amendments might affect the outcome of this action either(1) if I am wrong in finding that the matters pleaded in para 3 of the Particulars of Claim might be general knowledge to support a natural and ordinary meaning, or(2) if I am right in finding that at this stage, but if at trial the court finds as a fact that they were not general knowledge in that sense, but extrinsic facts, such as have to be pleaded in support of an innuendo meaning.[34]The Particulars of Innuendo which Dr Fox applies for permission to introduce by amendment are as follows:
“5.1 Paragraph 3 above is repeated. 5.2 On 20 June 2011 the Guardian newspaper reported that the Defendant had been accused of blackmail by 3M. In particular, it was reported that the Defendant had sent two emails to 3M as part of settlement negotiations in respect of a legal dispute between Porton Capital, a company of which the Defendant was CEO, and 3M, and that 3M had alleged that those emails constituted blackmail. 5.3 In the emails the Defendant had put pressure on 3M to pay Porton Capital $30 million to satisfy Porton Capital’s claim against 3M. In the first email, dated 18 June 2011, he had claimed that he had discussed the legal dispute with the Claimant, then Secretary of State for the Defence, at a meeting (“the Dubai meeting”), and implied that, as a result of that meeting, his demands were made with the Claimant’s, and the government’s, authority or approval. In particular, he alleged or implied that the Claimant had told him that the issue of George Buckley’s knighthood, the CEO of 3M, would be imminently discussed by the Cabinet and that the outcome of that discussion would be affected by 3M’s response to the Defendant’s demand for money. It was also reported that the Defendant had sent a second email pressing 3M for a response in which he claimed that the Claimant expected a response from 3M by the following Sunday night. 5.4 3M had sued the Defendant for blackmail immediately following receipt of the emails. The US attorneys for 3M sent a copy of the proceedings to the Guardian newspaper, and as a result the Guardian publicised the allegations in an article of 20 June 2011. The Defendant sued 3M for libel. 5.5 The dispute between the Defendant and 3M received further publicity in the Guardian and other national media, including in articles published in the Guardian on 27 June 2011, 7 August 2011, 19 October 2011, 26 October 2011 and 7 November 2011. The Defendant actively sought publicity for his claims, including giving an interview to the BBC on 11 October 2011 in which he characterised the Claimant’s version of the Dubai meeting as a “half-truth”. 5.7 As a result of this publicity, the story was fresh in the public mind and it was well known to a large but unquantifiable number of viewers of the interview containing the words complained of and to readers of the report of that interview that the Claimant was the unique position of being able to “debunk” the Allegations, if they were false, because he could confirm the truth of the Defendant’s story and specifically confirm that he (the Defendant) was, in writing the emails, merely acting as a conduit for a message for 3M from the government. 5.6 Such viewers and/or readers would have understood the words complained of to mean that the Claimant had acted dishonourably or reprehensively in not coming forward publicly to debunk the false, and extremely serious, allegations against the Defendant.”
[35]It is not in dispute that there is one cause of action for a libel based on a natural and ordinary meaning and another, and different, cause of action where there is an innuendo, that is, a meaning created by the conjunction of the words complained of with something outside them: Grubb v Bristol United Press Ltd [1963] 1 QB 309, 326-7.[36]It is also common ground that the consequence of the expiry of the one year limitation period is that permission to amend to include an innuendo meaning for the publication on 7 November can only be granted if the conditions of CPR 17.4(2) are met. These conditions embody the Limitation Act 1980 s.35. A new claim may be made:
“(4) … but only if the conditions specified in sub-section (5) are satisfied…(5) The conditions referred to in subsection (4) are the following:(a) in the case of a new claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action …”
(emphasis added)[37]Mr Nicklin referred to Komarek v Ramco Energy plc [2002] EWHC 2501 (QB) in which Eady J refused an application to amend to plead a second publication of words similar to those already alleged to have been published on a different occasion. He re-iterated that the nature of a libel action is not the nature of the allegations, but their publication.[38]The point Mr Nicklin makes goes to jurisdiction. He makes no submission that, if the court has jurisdiction, it should not exercise that jurisdiction as a matter of discretion.[39]Ms Marzec submits that the matters pleaded in para 3 of the original Particulars of Claim are already in issue, by reason of the fact that they are already pleaded. So there could be no jurisdictional bar to the court granting permission for so much of the proposed amendment as is limited to the insertion into para 5 the words “and/or by way of innuendo”.[40]And, she goes on, if that is right, neither can there be any jurisdictional bar to the other proposed amendments to paras 3 and 5, because the proposed amendments do no more than give fuller particulars of what is already pleaded in the original para 3 of the Particulars of Claim.[41]In Lloyds Bank Plc v Rogers (unreported CA, 20 December 1996) Lloyds Banks sued Mr Rogers in debt. Mr Rogers counterclaimed against Lloyds Bank for damages for breach of contract for what he alleged to be the wrongful dishonour of his cheques. He applied for permission to add a claim for libel, but did so outside the limitation period (at that time three years). The Judge had granted permission. In dismissing the appeal Hobhouse LJ (as he then was) said: “The policy of [the Limitation Act 1935 s.35] is that, if factual issues are in any event going to be litigated between the parties, the parties should be able to rely upon any cause of action which substantially arises from those facts”.[42]In the present case, submits Ms Marzec, the matters pleaded in the original para 3 of the Particulars of Claim are in any event going to be litigated between the parties. If they are held to support a natural and ordinary meaning which is defamatory of Dr Fox, then Dr Fox may not need to rely on an innuendo meaning. But if they are held not to support a natural and ordinary meaning which is defamatory of Dr Fox (or not one which Dr Fox considers to be of sufficient gravity), then he may wish to rely upon them as extrinsic facts to support an innuendo meaning. But in that event the facts will already have been the subject of the litigation.[43]In my judgment Ms Marzec’s submissions are correct on this point.[44]Further, I accept her submission that the words proposed to be inserted by amendment to paras 3 and 4 of the Particulars are no more than further particulars of the substantive allegation already there pleaded. They are not new facts.[45]No issue arose as to the grant of permission to insert by way of amendment the words to be added to para 4 of the Particulars of Claim. Whether or not the insertion of those words may have consequences as to the scope of any permissible defence is not an issue with which I am concerned on this application.

CONCLUSION

[46]For these reasons I hold that the meaning attributed to the words complained of in the original Particulars of Claim is a defamatory meaning which those words are capable of bearing. And I grant permission to Dr Fox to make the amendments set out in the draft submitted to the court.