Optosafe Limited & Anor v John Mark Robertson

The defendant seeks permission, pursuant to the limited civil restraint order made by Jay J, to make an application to amend his amended defence.

Today is the first day of this trial. He sent the re-amended defence, or “second amended defence”, as it is described, to the claimants on Sunday 9 November 2025. So it was, in effect, served on them yesterday, the day before trial, and the application is made today, as I say, on the first day of trial.

Although I have allowed Mr Robertson to develop the application, I am not prepared to grant permission, and would in any event have refused the application and certified it as totally without merit.

The general principles which apply on an application for permission to amend are summarised in the White Book Vol. 1 at 17.3.5-8. In exercising the discretion under CPR 17.3, the overriding objective is of central importance. The timing of the application should be considered and weighed in the balance. Where a very late application to amend is made, a heavy burden lies on the applicant to show the strength of the case and why justice to him, his opponent and other court users requires him to be able to pursue it.

In my judgment, the defendant’s application to amend has been made fatally late. The first of the two amendments that the defendant seeks to make is to challenge the validity of the deeds, on the basis that they were not delivered. There is a contract claim brought by the first claimant. Up until this point, the defendant's defence has included no positive defence to the contract claim. If I were to allow the amendment, the respondent would inevitably have to be given time to consider and respond to the extensive case law to which the defendant has referred, in respect of the delivery of deeds. That would delay this trial which is ready to begin today. It is far too late and would be contrary to the overriding objective for the defendant to be allowed, on the first day of trial, to seek to challenge the validity of the contracts on which the claimant relies.

In any event, I am not persuaded that the proposed amendment discloses any reasonable grounds upon which to defend the claim. It is plain that the claimant is relying on the Service Agreement, which was the agreement under which the defendant worked for the first claimant, and also upon the Settlement Agreement that he signed, having received legal advice in respect of it. Those are clearly valid contracts, for which due consideration was given, irrespective of their status as deeds. So it seems to me that point is both fatally late and, in any event, lacks merit.

As regards the second aspect of his proposed amendment, he seeks to contend that these proceedings constitute a strategic lawsuit against public participation (‘SLAPP’). The provisions on which the defendant relies were not in force at the time when the injunction application was heard, and have only been brought into force relatively recently, so delay is not a significant factor. Nevertheless, it is plain that on the merits, this application has no prospect whatsoever.

One of the criteria that would have to be met for this claim to meet the definition of a SLAPP in s.195(1) of the Economic Crime and Corporate Transparency Act 2023 is that:

“(d)

any of the behaviour of the claimant in relation to the matters complained of in the claim is intended to cause the defendant –

(i)

harassment, alarm or distress,

(ii)

expense, or

(iii)

any other harm or inconvenience,

beyond that ordinarily encountered in the course of properly conducted litigation.”

S.195(4) provides:

“In determining whether any behaviour of the claimant falls within subsection (1)(d), the court may, in particular, take into account—

(a)

whether the behaviour is a disproportionate reaction to the matters complained of in the claim, including whether the costs incurred by the claimant are out of proportion to the remedy sought;

(b)

whether the defendant has access to fewer resources with which to defend the claim than another person against whom the claimant could have brought (but did not bring) proceedings in relation to the matters complained of in the claim;

(c)

any relevant failure, or anticipated failure, by the claimant to comply with a pre-action protocol, rule of court or practice direction, or to comply with or follow a rule or recommendation of a professional regulatory body.”

The defendant’s application is hopeless. There is nothing in the claimants’ behaviour in bringing these proceedings, or in the conduct of them, which would provide any basis for concluding that s.195(1)(d) is met. It is plain that the claimants' conduct on which the defendant relies in, for example, alerting certain persons to the fact that an interim injunction had been made was reasonable and does not come anywhere close to meeting the test.

A principal difficulty that the defendant would have to overcome is that Chamberlain J decided, at the interim injunction hearing, that the claimants were more likely than not to succeed at trial. The claim is not a disproportionate reaction to the matters complained of. Nor is this a case where the defendant has shown either s.195(4)(b) or (c) are met.

Accordingly, I refuse permission to make the application to amend. If the defendant had not been subject to a CRO, I would have refused the application and, for the reasons I have given, held that it was bound to fail and certified it as totally without merit.