DELAY IN MAKING AN ADDITIONAL CLAIM LEADS TO JOINDER BEING REFUSED (A MUCH MORE BORING TAKE ON THE VARDY -v- ROONEY CASE)

In  Vardy v Rooney & Anor [2022] EWHC 304 (QB) Mrs Justice Steyn refused the defendant’s application for joinder of an additional party.  One major element in that decision was the delay in making the application, and the total absence of any compliance with the Pre-Action Protocol.  One key element here is that PD.20 specifically states that delay has to be explained “in evidence“.  Delay could not be explained by submissions.

” … an explanation of the late stage at which the application was being made was required. That is so even if the defendant contends that, in making the application, she did not delay but acted timeously in all the circumstances. A fortiori such an explanation ought to have been provided in circumstances where the application, when filed, was not on notice to the respondent. The evidence the defendant filed with the application did not address delay or, indeed, any of the matters referred to in PD20 paragraphs 2.1, 2.2 or 2.3. Mr Lunt’s subsequent statement that he considered it was a matter largely for legal submissions rather than evidence (Lunt 3 §25) overlooks the terms of the practice direction.”

PRACTICE DIRECTION 20.2.2

“2.2  Where delay has been a factor contributing to the need to apply for permission to make an additional claim an explanation of the delay should be given in evidence.”

THE CASE

The claimant brings an action for libel against the defendant. The defendant sought permission to join a respondent into the action.  The claim against the respondent was for breach of private information and breach of GDPR rights.  The claimant sought permission to add this is an additional claim, alternatively for an order that the two matters be tried at the same time.

THE JUDGMENT

The judge observed that the proceedings against the respondent had been issued without any attempt at all to comply with the Pre-Action Protocol. Further the judge held that, despite the defendant’s protestations to the contrary, the application had been mate late. It is important to note here that the judge was critical of the defendant’s failure to explain the delay in evidence.  Delay could not be explained in submissions, it really required an evidential foundation.

DELAY

1. 63. I shall first address the question of delay before considering the practical consequences. The application was filed on 13 December 2021. That was just over four months before the (then) fixed trial date. The normal time for making an additional claim is the same time as the party’s defence, albeit permission may be given if the additional claim is made later: White Book §20.4.1; CPR 20.4(2)(a) and 20.7(3)(a). In this case, the application was issued more than 14 months after the defence was filed.

1. 64. If a defendant intends to make an additional claim, not having done so when the defence was filed, ‘this should be stated on the directions questionnaire’: CPR PD 26 para.2.2(3)(b). The defendant’s directions questionnaire, filed on 17 November 2020, did not state any intention to make an additional claim.

1. 65. Further opportunities to indicate her intention to bring an additional claim arose, first, at the CCMC before Master Eastman on 16 March 2021, second, at the hearing before me on 18 June 2021, and thirdly, at the further CCMC on 4 August 2021 when Master Eastman gave directions to trial. None of those opportunities were taken. The application was made more than four months after the second CCMC before Master Eastman, long after the trial date had been fixed.

1. 66. In these circumstances, and having regard to the terms of PD20 paragraphs 2.1 and 2.2, an explanation of the late stage at which the application was being made was required. That is so even if the defendant contends that, in making the application, she did not delay but acted timeously in all the circumstances. A fortiori such an explanation ought to have been provided in circumstances where the application, when filed, was not on notice to the respondent. The evidence the defendant filed with the application did not address delay or, indeed, any of the matters referred to in PD20 paragraphs 2.1, 2.2 or 2.3. Mr Lunt’s subsequent statement that he considered it was a matter largely for legal submissions rather than evidence (Lunt 3 §25) overlooks the terms of the practice direction.

1. 67. Insofar as the defendant’s reply evidence addresses the question of delay, Mr Lunt makes three points. First, that the application was issued timeously. Secondly, that it is inconsistent to criticise the defendant for failing to comply with the Pre-Action Protocol while at the same time contending the application was made late. Thirdly, Mr Lunt places reliance on correspondence in which the claimant’s solicitors said there was ‘absolutely no urgency’ (see paragraph ‎38 above). The latter is, as I have already indicated, a bad point based on taking a statement in correspondence out of context, and it is unnecessary to address it further.

68. The defendant’s position that the application was issued in good time is based on the contention that until they inspected the claimant’s documents they only had a ‘working theory’ (as it is described in the defendant’s skeleton argument) that much of the information was leaked via the respondent. This explanation (given in submissions, not evidence) has to be viewed against the pleadings and previous statements by counsel to the court…..

72. I acknowledge that the defendant received in that disclosure significant information on which she relies in both the main claim and the additional claim. However, given the terms of the defendant’s pleading, verified by statements of truth, and the unequivocal submissions that the defendant’s case was that Ms Watt was responsible for leaking the defendant’s information to The Sun, I do not accept that these allegations were no more than a ‘working theory’ until the defendant received the claimant’s disclosure. In my judgement, against the background of an increasingly imminent trial date, the absence of any explanation for the delay in the defendant’s evidence is an important factor.

73. Nor do I accept that it is contradictory to criticise the defendant both for lateness and for failure to comply with the Pre-Action Protocol. On the contrary, the fact that the application was filed as late as it was, even though none of the preceding time was taken up engaging in pre-action correspondence, underlines the extent of the delay. In addition, the failure to comply with the Pre-Action Protocol has an impact on the likely length of the proceedings in the additional claim. First, where a claim has been issued prematurely, one possible way in which the court may react to non-compliance with a pre-action protocol is to give the defendant to that claim an extension of time to serve her defence: White Book 2021, C1A-006. Secondly, the purposes of the Pre-Action Protocol include the avoidance of litigation. If there has been no discussion before a claim has commenced, it is more likely that time may need to be allowed for ADR after it has begun. Thirdly, the purposes of the Pre-Action Protocol include the narrowing of issues between the parties. If the opportunity to narrow the issues through pre-action correspondence has not been taken, the prospects that a defendant to a claim may seek to strike out at least parts of the claim are increased.

74. The defendant’s evidence asserts not only that the application was issued in a timely manner following the claimant’s disclosure, but also that it was ‘issued timeously following Ms Watt’s refusal to engage in correspondence’. I note that the correspondence with Ms Watt was not about the proposed claim (of which she was unaware) and that it is inaccurate to say that she refused to engage in correspondence. The letter from the respondent’s solicitor of 20 October 2021 stated:

“If your client wishes to seek third party disclosure then the precise basis for this should be set out, in accordance with the requirements of CPR 31.17. Our client will then consider such a letter and respond appropriately. We do not, otherwise, expect to hear from you again, other than to receive your apology.” (Emphasis added.)

THE IMPACT OF THE DELAY UPON THE ACTION

Allowing the defendant’s application would derail the trial date and timetable. Further it would be unfair on the respondent to attempt to condense the action into a very short amount of time.

1. 77. In my judgement, if I were to grant permission, it is inevitable that the trial would be delayed far longer than the two month period suggested by the defendant. In suggesting that the additional claim could be synchronised with the main claim in time for a hearing in July, the defendant did not allow for a case management hearing in accordance with PD20 para 5.1. Nor did she allow time for the strict cost budgeting which would be necessary, having regard to the nature and likely value of the claim. It is highly likely that applications under Part 18 or Part 24 would delay the proceedings further. And as I have said, time may need to be allowed for ADR, given the lack of engagement in pre-action discussion (see paragraph ‎73 above).

1. 78. It would be unfair to the respondent to condense the claim against her into a very short period. An action of the type which the defendant proposes to bring against the respondent typically takes around two years. Given the degree of overlap between the claims, and the relatively minimal level of disclosure that would be necessary, I am of the view that the additional claim can be determined significantly more speedily than a typical claim of this type. Even so, if I were to give permission, in my view, the determination of the libel claim would be delayed by at least seven months, and probably closer to 12 months.

79. Factors (a) and (c) of r.20.9(2), which I have addressed above, weigh in favour of granting permission. On the other hand, this is not a classic third party claim in which the remedy sought is a contribution or indemnity (factor (b)). Nevertheless, if the timing of the claims were aligned, it would be sensible for them to be heard together. However, that is not the position. In my judgement, this application has been brought too late. The effect of granting the application would be to delay the determination of the claimant’s libel claim by 6-12 months. That would not be fair to the claimant who seeks to vindicate her reputation and would suffer the prejudice of the litigation being prolonged. For the reasons I have given, I refuse to grant permission pursuant to 20.9(1)(a) for the additional claim against the respondent to be made or for permission to add the respondent as an additional party in the additional claim against her.