Bloor (t/a Doncaster Property Services) v Beresford & Anor

These proceedings, whereby the Claimant seeks general, aggravated and special damages for defamation, were begun on 6 March 2015. No date for trial has yet been fixed. He alleges in effect that he became the subject of a discreet campaign of vilification conducted by the first Defendant, acting in the course of his employment (as a technical adjudication and control officer) by the second Defendant. The Claimant has at all material times carried on business as a managing agent for various owners of residential properties in the Doncaster area (as well as being himself a landlord). He claims that his reputation has suffered serious harm as a result of allegations made to a number of his clients to the effect that he is dishonest and/or not to be trusted in his business dealings. It is said that it is now apparent that his business has been devastated.

He now wishes to make certain amendments to his claim form and particulars of claim in the light of matters which have come to light after the date of his original pleading. The amendments sought are mainly for the purpose of adding publications the significance of which had earlier escaped him or of claiming heads of damage of which he had been unaware. The relevant applications are dated, respectively, 6 and 19 May 2016: they are supported by witness statements from Kate Stewart, dated 9 and 19 May, and from Claire Monkhouse dated 21 July.

Whatever their merits, the allegations he makes against a public official and a local authority are plainly to be taken seriously at this stage, and the court must do its best to ensure that the real issues between the parties are carefully addressed and fairly adjudicated upon. It is to be noted that the defence served does not include any plea to the effect that the sting of these allegations is true. Moreover, since his claim is that the Defendants carried on a whispering campaign against him, it is unsurprising that he should wish to add complaints of which he only became aware as time went on. It would be unfair if the Defendants were able to take advantage of the fact that some of their alleged “whisperings” did not emerge at the outset. Not least, his attempts to establish a pattern would be artificially constrained. I emphasise that I can only proceed at this stage on the basis of allegations, which are denied, and cannot as yet determine whether his complaints are well founded.

Originally, the claim was limited to £50,000, but in the light of what he has since discovered the Claimant wishes to delete that limitation. He now realises, he says, that the financial consequences of the defamatory publications had a greater impact than was at first apparent – including in respect of his own son Oliver Bloor who took properties away from him in the light of what he had been told. Of course, in one sense the removal of such a restriction causes prejudice to the Defendants, since they would apparently be facing a larger claim, but that in itself is not a reason to deprive the Claimant of putting his full claim forward. Indeed, it seems to be accepted by both parties that such a limitation would not, in any event, have tied the court’s hands as to making a greater award where appropriate: see CPR 16.3(7). I shall, therefore, allow that amendment to the claim form.

The Claimant also wishes to add certain publications to those already pleaded, which he says also formed part of the Defendants’ campaign. It is true that prior warning was contained in the original particulars, in the sense that he purported to reserve his right to rely on communications which later emerged. Nevertheless, it is right to say that the addition of further publications in a claim for defamation would involve the incorporation of separate and distinct causes of action. Accordingly, Ms Foster argues that he should be confined to matters arising from the same facts as at first pleaded, or facts which are substantially similar: CPR 17.4. It may be said, I suppose, that in so far as the Claimant is alleging a pattern of behaviour, or a campaign of denigration, the new allegations do arise from the same factual matrix. In any event, it is necessary to bear in mind the provisions of s.32A of the Limitation Act 1980, which were added by the Defamation Act 1996. They followed the recommendation of the Neill Committee in July 1991, by way of mitigating the harsh consequences of introducing a one year primary limitation period as proposed. The test to be applied is whether the court regards it as being “equitable” to add a new claim in all the circumstances of the case.

In some instances, the Claimant wishes to add material of which he had been aware at the time of his original pleading, but which he or the pleader chose to omit. In particular, a publication to one Paul Casson (at paragraph 24 of the amended statement of case) was not new, but he says that he was a friend, and he had thought that he would not withdraw his business as a result of what he had been told by the Defendants. He was over-optimistic, however, and he now wishes to add both the publication as a new cause of action and the new head of damage said to flow from it. Furthermore, he wishes to add a publication to a Ms Huntrod (at paragraph 26) “for the sake of completeness”, even though it did not result in special damage.

Both these amendments I will allow. He had not originally wished to include publications where he was not aware of any special damage. He cannot, in my view, be criticised for taking that approach. But I do not see why that restraint should now deprive him of what has emerged as a genuine claim in respect of Mr Casson’s unexpectedly lost business. As to Ms Huntrod, whose evidence Ms Foster describes as “otiose”, I think it is legitimate to allow it before the court, not only because there is potentially a claim for general damages for injury to his reputation in her eyes, but also because it might help him to establish the pattern or campaign, and thus assist in proving it more likely than not that other publications to similar effect (although denied by the Defendants) were in fact being made. In these unusual circumstances, I think it is reasonable, as Ms Griffin suggests, that the court should have as full a picture as possible of the Defendants’ activities. I do not see that these allegations would place them in an unfair position – as compared to the situation they would have faced if the claims had been included from the outset. It seems to me, therefore, that it would indeed be “equitable” for those amendments to be made.

The case is even stronger, it seems to me, in respect of Oliver Bloor (pleaded at paragraphs 22-23). I am told that the Claimant only became aware of the relevant facts in December 2015; namely, that his son’s properties were removed from him as a consequence of what he had been told by the first Defendant.

There are other minor amendments proposed (at paragraphs 16 and 19), with regard to expanding the words complained of, as a result of the relevant witnesses supplementing their witness statements.

I turn to the issue of expert evidence. The situation has changed significantly since Master Leslie observed that the claim, as it was then framed, did not appear to justify calling such a witness. It is now more complicated and relates to lost income, to lost profits and to a diminution in the value of the Claimant’s business – by reference to a wide range of properties and, apparently, also to differing methods of payment. It may be that because of his poor record keeping he will have some difficulties in establishing parts of his claim, but that seems to me to make it all the more valuable for the court to have the assistance of experts in calculating the Claimant’s losses (if any) and in testing his evidence. I will give permission to adduce Mr Pughe’s evidence, even though it seems to have been compiled in a hurry as a result of the Claimant’s shortage of funds. It must be quite clear, however, that any expert instructed by the Defendants must have as much access to information as did Mr Pughe. It seems to be rather odd that his report is at least partly based, not on written records, but upon conversations with the Claimant as to his best recollection. An expert’s critical analysis may well assist both parties (as well as the trial judge) in establishing the facts, and not least in relation to the tax implications (as was pointed out at an earlier hearing before Warby J).

There is an updated schedule of loss and it seems to me to be right to permit that also, in order to enable the real issues to be properly adjudicated upon. The Claimant’s solicitor seeks to add to the pleading an up to date list of properties withdrawn from his management, whereas previously they were identified only in witness statements. This is legitimate “tidying up” in my view and I give permission.

Originally, the Claimant sought permission to rely upon a witness summary from Mr Ralph Cunliffe, but a statement has subsequently been obtained and I give permission for this to be introduced, albeit out of time.