TAN v MADSEN - [2012] SADC 142

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
TAN v MADSEN
[2012] SADC 142
Judgment of His Honour Judge Stretton
31 October 2012
DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING
Appeal against a Master's decision allowing the plaintiff to amend an imputation to include a motive for the conduct alleged. The defendant appealed on the ground that the amendment was either mere irrelevant verbiage or in the alternative a second imputation impermissably bundled up with the existing imputation.
Appeal against the Master's decision striking out a defence plea of justification and refusing leave to file an amended plea of justification. The defendant appealed on the ground that it was entitled to distil the 'stings' from the imputations pled against it and answer them in that way, or answer a lesser version of them.
Held: Adding a suggested illegitimate motivation for an impugned act, properly characterised, rendered the imputation pled by the plaintiff a more serious one, it did not create separate imputations impermissably bundled together. Accordingly the Master's decision to allow the imputation to be amended was correct. Paragraph 13 of the defence reasonably arguably purported to identify and justify one of the two 'stings' that flowed from the imputations pled by the plaintiff, and reasonably arguably pled and justified a lesser variant of the imputations pled by the plaintiff. As the defendant was at risk of that lesser variant being held against it at trial, it could plead and justify that lesser variant.
The appeal against the Master's decision to allow amendments to the imputations pled in paragraph 9 of the Statement of Claim is dismissed.
The appeal against the Master's decision to strike out paragraph 13 of the defence and refuse leave to amend it is upheld. The defendant is granted leave to file an amended paragraph 13.
Advertiser-News Weekend Publishing Co v Manock (2005) 91 SASR 206, applied.
Favell v Queensland Newspapers Pty Ltd (2005) ALJR 1716; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663; Barach v University of NSW [2011] NSWSC 99; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Polly Peck (Holdings) Plc v Trelford [1986] QB 1000; Chakravarti v Advertiser Newspapers (1998) 193 CLR 519; General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125; Prichard v Krantz (1984) 37 SASR 379, considered.

TAN v MADSEN
[2012] SADC 142

This is an appeal against a master’s decision granting the plaintiff in a defamation action leave to amend its statement of claim, striking out a paragraph of the defence and refusing the defendant leave to file an amended version of it.
The action
The plaintiff is the chairman of a fishery company. He is suing the defendant, the retired former managing director of that company, for defamation over an email the defendant sent on 15 August 2010 to various people. The relevant part of the email is as follows;
… I and 4 other directors got the flick from the board for accusing the chairman of fraud … anyone in the company who gives us info risks getting the flick themselves.
The plaintiff claimed in his original statement of claim that those words had the following imputations;
9.1The Plaintiff was guilty of fraud.
9.2Alternatively that there were reasonable grounds to suspect that the Plaintiff was guilty of fraud.
9.3That the Plaintiff had dismissed 5 directors who had accused him of fraud.
9.4That the Plaintiff had, in dismissing 5 directors, misused his position within Dover Fisheries in order to avoid accountability for fraud.
9.5The Plaintiff’s main purpose for dismissing 5 directors was to silence or punish them.
9.6The Plaintiff has shown himself to be a person lacking both personal and business ethics whilst a chairman of Dover Fisheries.
The defendant admits the publication but denies the imputations, and pleads in the alternative that if the email was defamatory at all it was substantially true, and pleads a series of particulars of justification.
In paragraph 13 of the defence the defendant pled justification to a claimed imputation that “the plaintiff’s decision to remove or cause the removal of, directors of Dover Fisheries including the defendant was a response to and in order to silence[1] accusations they had made”, that what in fact happened was that in part because the defendant challenged and criticized him for taking too much money out of the company, at a general meeting of the company the defendant proposed and secured the removal of three directors, with the consequence that a further two resigned, and that that was substantially true.
[1] The underlined portion is the amendment proposed by the defendant to the master, which the master also rejected.
In paragraph 14 of the defence the defendant pleads that if the email bore the imputation alleged in paragraph 9.2 of the statement of claim that there were reasonable grounds to suspect that the plaintiff was guilty of fraud, that was substantially true. It pled as justification that the plaintiff had diverted to himself for his own use certain specified funds paid to the company and funds ostensibly borrowed by the company.
The Master’s decision
The plaintiff applied to and was granted leave to amend paragraph 9.5 of the statement of claim by adding the words “for making an accusation of fraud” so as to now read:
9.5 The plaintiff’s main purpose for dismissing 5 directors was to silence or punish them for making an accusation of fraud.
Consequentially, in light of concerns as to the different nature of the imputation in paragraph 9.6, the master indicated that it should be amended to clarify that it was delimited to fraud. As a result it was amended to read:
9.6 The plaintiff has shown himself to be a fraudster lacking both personal and business ethics whilst a chairman of Dover Fisheries.
The plaintiff applied to and succeeded in having the master strike out paragraph 13 of the defence on the basis that “it raises an impermissible Polly Peck defence”.[2] The master also refused the defendant leave to file an amended paragraph 13.[3]
[2] Paragraph 5 of the affidavit of Lisa Marie Amabili, solicitor for the plaintiff dated 14 May 2012.
[3] See footnote 1.
The appeal
The defendant argues that the amendment to paragraph 9.5 is mere verbiage which does not materially alter the imputation and on that basis should not have been allowed, but that if it does alter the imputation it impermissibly pleads a double barrelled or rolled up imputation contrary to the principle said to be identified in Monte v Mirror Newspapers [1979] 2 NSWLR 663 at 676E.
The defendant argues that paragraph 13 of the defence, particularly in its proposed amended form, does raise an arguable defence of justification, either to one of the two real imputations or “stings” that the defendant says arise from paragraph 9 of the statement of claim, or to the imputation pled per paragraph 9.5 of the statement of claim as it stood,[4] or to a permissible lesser variant of the imputation pled per the amended statement of claim as it now stands within the principle said to be identified in Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 (“Polly Peck”).
[4] Although the thrust of the argument before me, and the real issue concerning paragraph 13, was whether the proposed amended paragraph 13 is valid and should have been allowed by the master, rather than whether the unamended paragraph 13 as it stood was/is valid either before or after paragraph 9.5 of the statement of claim was amended before the master.
Is paragraph 9.5 of the amended statement of claim a permissible pleading?
A plaintiff in a defamation action is entitled to distil and plead whatever imputations the plaintiff claims arise from the publication in question.[5] That will be a valid pleading so long as a reasonable ordinary person could understand the published words to convey the pled meaning.[6]
[5] Advertiser-News Weekend Publishing Co v Manock (2005) 91 SASR 206.
[6] Flavell v Queensland Newspapers Pty Ltd (2005) ALJR 1716.
For the purposes of this appeal there is no suggestion that the publication could not be taken by a reasonable ordinary person to imply what is asserted in the amended paragraph 9.5.
Adding the words “for making the accusation of fraud” adds some particularity to the asserted imputation, in that it ascribes a reason for the plaintiff’s actions. As such, whilst the other imputations pled, particularly if read together, arguably imply such a reason, the amendment makes explicit that the plaintiff is claiming that the defendant’s publication imputed that he dismissed the 5 directors to punish or silence them for the specific reason that they had accused him of fraud. As such, that does define and limit the scope of paragraph 9.5. For the plaintiff to establish the specific imputation in amended paragraph 9.5 he will have to prove an already particularised motive, now actuated by a single identified reason. Further, saying that the plaintiff silenced or punished the directors for accusing him of fraud is a potentially a more serious, more defamatory accusation. For these reasons, I reject the suggestion that the amendment amounted to mere verbiage.
The second issue is whether the amendment is embarrassing on the basis that it groups together more than one imputation. As a matter of principle, each defamatory imputation said to arise from a publication should be precisely identified and separately pled.[7]
[7] Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 677, Barach v University of NSW [2011] NSWSC 99 at [21], Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137.
At a fundamental level, it must always be possible to plead an imputation that a person took an action to do a thing for an ultimate purpose, in that in some cases it might require all such elements to be present for that action to have a defamatory imputation at all. For example, an action by itself might be incapable of causing a reasonable person to perceive a defamatory imputation, and require a wrong methodology and/or an improper purpose to give rise to a defamatory imputation at all. So the fact that an asserted imputation comprises an action to do a thing for a particular purpose, will not automatically mean that such a pleading must comprise a number of imputations rolled together.
“Dismissing” directors in itself is not an allegation that in a vacuum could have a defamatory implication. Further, strictly speaking, a director cannot be “dismissed” at all. For practical purposes a person ceases to be a director by not being re-elected or by being voted out of office at a general meeting. A person can also become ineligible to hold or retain a particular directorship or directorships in general.[8] Simply saying that a person was responsible for certain directors losing office would also, by itself, not necessarily be capable of a defamatory imputation, in the same way that a person responsible for terminating another’s employment by itself is unlikely to be capable of giving rise to a defamatory imputation. It would usually only be when that action is accompanied by a wrong or negligent or improper methodology or purpose, that it is likely to become capable of giving rise to a defamatory imputation. In this situation, as in many situations, the motivation or methodology may well be the key element determining whether an action can give rise to a defamatory imputation.
[8] For a range of reasons, primarily pursuant to bankruptcy and corporations legislation.
In my view it is appropriate to approach amended paragraph 9.5 with this in mind. Paragraph 9.5 alleges that the plaintiff did a thing that could be done for either a legitimate or illegitimate purpose, for an illegitimate purpose. Trying to silence or punish someone for accusing you of fraud by “dismissing” them, is effectively one imputation, although it contains several factual elements.
Where several factual elements together give rise to an imputation, the fact that there are several elements does not necessarily mean there are several imputations. Looked at another way, an additional concept may be introduced into an imputation where it relevantly colours, qualifies or informs the core concept in the imputation.[9] In my view, rather than bundling together a series of imputations, the amendment to paragraph 9.5 of the statement of claim further particularizes and in doing so renders the imputation more serious.
[9] Barach v University of NSW [2011] NSWSC 99 at [22], [33] and [36].
For these reasons I reject the suggestion that paragraph 9.5 of the statement of claim impermissibly rolls up separate stings or charges.
Accordingly amended paragraph 9.5 of the statement of claim is a permissible pleading, and the master was correct in granting the plaintiff leave to amend it to its current form.
Is paragraph 13 of the defence a permissible pleading?
The defendant says that in effect there are two overarching imputations or “stings” arising from the imputations pled in paragraph 9 of the statement of claim.
The defendant argues that the first of the two “stings” is the imputation that the plaintiff was guilty of, or reasonably suspected of, fraud. The defendant says it answers that imputation or sting in paragraph 14 of the defence by claiming that the plaintiff did in truth commit fraud in relation to the company in several other ways therein pled.
The defendant argues that the second “sting” is the imputation that the plaintiff acted so as to silence and punish the defendant for making accusations. The defendant says it answers that imputation in paragraph 13 of the defence by claiming that yes, after some directors and the defendant expressed concerns that the plaintiff had taken too much money out of the company, the plaintiff did take action to remove the three directors including the defendant who were then voted off the board, at least in part because of the directors including the defendant challenging and criticizing the level of funds being received by the plaintiff from the company. In effect the defendant says the second “sting” or implication is that the directors were sought to be silenced and/or punished for making accusations, albeit not for making specific accusations of fraud.
The plaintiff argues that this plea raises and purports to justify on the basis of truth a fundamentally different imputation to any pled by the plaintiff, a suggested desire to silence or punish the directors for a reason other than the fact that they alleged fraud. The plaintiff argues that particularly in light of the amendments to paragraphs 9.5 and 9.6, it is not pleading any defamatory imputations arising from the publication other than imputations involving fraud on the plaintiff’s part.
The defendant’s fundamental response is that, in reality, the pled imputations contain two “stings”; one alleging fraud and another alleging that there was an attempt to silence or punish them, and that the defendant is perfectly entitled to distil those two stings from the pled imputations and answer them as they have done in paragraphs 13 and 14 respectively, rather than go through each of the pled imputations and defend them in specie. It also argues that it may permissibly plead to and attempt to justify any lesser but not fundamentally different version of the imputations the plaintiff pleads, pursuant to Polly Peck principles.
I turn to the plaintiff’s fundamental ground of opposition to paragraph 13 of the defence, its argument that the defendant is simply attempting to irrelevantly and hence impermissibly plead to a lesser, different imputation than those alleged in the statement of claim. It argues that paragraph 9.5 of the amended statement of claim pleads that the email imputed that the plaintiff dismissed the directors to punish or silence them for making an allegation of fraud, and that it is simply no response to that imputation for the defendant to plead per paragraph 13 of the defence that it is true that the plaintiff dismissed the directors to punish or silence them, albeit for the less serious reason that they had challenged and criticized him for taking too much money out of the company.
The case of Polly Peck was relied on by both parties as relevant, among other things, to the degree to which a plea of justification may redefine the imputation to which it responds. In that case O’Connor LJ initially made 4 preliminary observations which I summarise as follows: [10]
·Where a plaintiff chooses to complain of part of a whole publication the court is entitled to have regard to the whole publication, at the very least to provide context to the words complained of when considering whether any, and if so what, defamatory meaning is disclosed by the words complained of. Further, that what other use can be made of the material at trial depends on its nature and on the defences put forward by the defendant.
·Where a publication contains two distinct libels the plaintiff can choose to complain of only one and the defendant cannot justify that libel by proving the truth of the other, although there may a difficulty with this otherwise self evident proposition in deciding whether the two libels are indeed distinct in the sense that the imputation defamatory of the plaintiff’s character in the one is different from the other.
·Although it is for the court to decide what the natural and ordinary meaning of the words complained of is, this simple proposition has become enmeshed in the question of how far the plaintiff can by his pleading limit the meanings which may be canvassed at trial.
·The trial of the action should concern itself with the essential issues and the evidence relevant thereto and public policy and the interest of the parties require that the trial should be kept strictly to the issues necessary for a fair determination of the dispute between the parties.
[10] [1986] QB 1000 at 1020-1021.
As a result the court went on to say, in summary, that the plaintiff is not entitled in delimiting his claim to certain words to consequently prevent the defendant from saying that those words had a different meaning when seen in the context of the whole publication, either a non defamatory meaning, or a different defamatory meaning which the defendant can in fact justify.[11] That latter comment, however, arose in the context of a civil jury trial where the plaintiff simply pled that the complained of words had their natural and ordinary meaning, rather than specifying a particular defined imputation.
[11] [1986] QB 1000 at 1025-1026, quoting the judgment of Lord Denning MR in S and K Holdings Ltd v Throgmorton Publications Ltd [1972] 1 W.L.R. 1036 at 1039-1040.
In conclusion, the court said:[12]
In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that in that meaning the words are true and to give particulars of the facts and matters upon which he relies in support of his plea, as he is required to do by RSC Ord. 82. It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain.
Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification.
Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting …
In all cases it is the duty of the court to see that the defendant, in particularizing a plea of justification …. does not act oppressively. Whether the particularization of the plea is oppressive depends not only on the facts of each case, but also on the attitude of the plaintiff. I say this because a plaintiff can limit the extent and cost of enquiry at trial by making timely admissions of fact.
[12] [1986] QB 1000 at 1032.

If in the UK a court, whether with or without a civil jury, might permissibly arrive at a different defamatory imputation to those pled by the plaintiff as arising out of the publication concerned, and hold a defendant liable for it unless that imputation is justified by the defence,[13] then it is plainly logical to allow the defendant to justify all or any other imputations that might be so found by the court, whether or not pled by the plaintiff.
[13] This seems to be the case, see Advertiser Newspapers v Manock (2005) 91 SASR 206 at 216.
On the other hand, where, as in South Australia now, the law is that the plaintiff must plead the defamatory imputations he claims arise from a publication and then be limited to the imputations he pleads,[14] to simply allow the defendant to plead the truth of a different imputation is completely pointless. Where a plaintiff has not asserted a different imputation, the defendant is not at risk of being held liable in defamation for it, so there is no need for the defendant to justify it. As the High Court said about the above quoted passage from Polly Peck in Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 per Brennan CJ and McHugh J at [8]:
With great respect to his Lordship, such an approach is contrary to the basic rules of common law pleadings and in many contexts will raise issues which can only embarrass the fair trial of the action. Leaving aside technical pleas such as pleas in abatement, defences are either by way of denial or confession and avoidance. A defence which alleges a meaning different from that of the plaintiff is in the old pleading terminology an argumentative plea of Not Guilty. Under the principles of pleading at common law, it could tender no issue and would be struck out as embarrassing. Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant's plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise. A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication. In our view, the Polly Peck defence or practice contravenes the fundamental principles of common law pleadings. In general it raises a false issue which can only embarrass the fair trial of the actions.
[14] Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135.
I observe that in its rejection of the primary thrust of the Polly Peck decision, the High Court did not reject the notion that the defendant can distil the real ‘sting’ or ‘stings’ made per the imputations that the plaintiff pleads, and answer the stings themselves. The defendant cannot however go so far as to take severable parts of a publication each containing defamatory imputations and link them together so as to give a meaning at a sufficiently high level of abstraction to subsume the meanings of the severable parts.[15]
[15] 193 CLR 519 per Brennan CJ and McHugh J at 529.
Whilst it must be acknowledged that there is a contrary argument available to the plaintiff, it is plainly arguable that what the defendant is doing is distilling the stings openly evident from the imputations pled by the plaintiff, rather than attempting to abstract them to a level of generality whereby significant elements of the imputations are subsumed.
I remind myself that, as acknowledged by the master in his reasons, pleadings should not be struck out unless a court concludes that they are wholly wrong in law, unarguable, untenable or groundless.[16] Accordingly so long it is arguable that paragraph 13 does fairly identify one of the ‘stings’ actually pleaded by the plaintiff and then purport to justify it, then the defence should be permitted to take that pleading to trial. In my view, it is arguable that it does so, and accordingly the pleading should be allowed to go to trial.
[16] General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130.
Further, while the High Court did reject the wider Polly Peck notion that the defendant can merely identify and justify a lesser and different imputation it says arises out of the publication in question, subsequent cases have clarified that the defendant can identify and justify any variant of the pled imputation which it is at risk of having held against it at trial.
In Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206 (“Manock”) the Full Court held at [36], [37], [41], [63]-[73] and [82] that a plaintiff can at trial rely on both meanings that he has pleaded and meanings which are less injurious and not of a substantially different kind, and may also rely on variants of the meanings pleaded or which involve no more than a different nuance or shade of meaning. The court held that consequently a defendant may plead and seek to justify any such alternative meanings, as they may potentially be relied on by the plaintiff to obtain judgment, even though the plaintiff has not pleaded them.
Accordingly, if the imputation identified and pled per paragraph 13 of the defence is an imputation of a less injurious and not of a substantially different kind to those pled by the plaintiff, that is a potentially valid pleading.[17] For convenience I will refer to this as the Manock criteria.
[17] See also Prichard v Krantz (1984) 37 SASR 379 at 386, Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR at 519 per Brennan CJ and McHugh J at 533-534 per Gaudron and Gummow JJ at 546, and per Kirby J at 580-581.
Paragraph 13 of the defence originally pled that the publication imputes that “the plaintiff’s decision to remove or cause the removal of, directors of Dover Fisheries including the defendant was a response to accusations they had made”. The defendant proposed an amended pleading before the master which read “the plaintiff’s decision to remove or cause the removal of, directors of Dover Fisheries including the defendant was a response to and in order to silence accusations they had made”. This proposed amended version was pursued before the master, and was also rejected. The proposed amended version is pursued on appeal.
I turn to consider whether proposed paragraph 13 satisfies the Manock criteria.
Viewed objectively, the proposed paragraph 13 imputation reflects almost exactly the thrust of the imputation pled in paragraph 9.5 of the plaintiff’s original statement of claim without the words “or punish”, although the amended paragraph 9.5 adds the words “for making an accusation of fraud”. In essence, the imputation pled in proposed paragraph 13 of the defence is a subset of the new 9.5, without the words “or punish” and the additional element relating to fraud.
The issue is therefore whether this is a meaning which is still capable of being defamatory but is “less injurious and not of a substantially different kind”. If it is, then the plaintiff could potentially rely on it at trial, and fairness would consequently dictate that the defendant should be able to justify it at trial.[18]
[18] And where a defendant seeks to justify a different meaning than the meaning pled by the plaintiff the defendant ought ordinarily be required to plead or give particulars of that other meaning; see Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 per Gaudron and Gummow JJ at 543.
The proposed paragraph 13 imputation contains some but not all of the elements pled by the plaintiff in paragraph 9. It contains the elements of:
·The plaintiff decided to and did remove or cause the removal of the directors of Dover Fisheries including the defendant.
·The plaintiff did so because they had made accusations against him.
·The plaintiff did so to silence them.
It does not contain the elements of:
·It was (in the alternative) to punish.
·Because the accusations were of fraud.
The proposed paragraph 13 imputation, in leaving out the element referring to fraud and the alternative element of punishment, is plainly less injurious than that which is pled by the plaintiff in paragraph 9 of the statement of claim. In all other respects it is, in essence, the same. It contains no new or different elements, it simply has less elements, resulting in it being a less serious imputation.
Overall, although I appreciate it is a matter of degree, in my view paragraph 13 may be appropriately characterised as a less serious version of paragraph 9. It is not of a substantially different kind. In the final analysis, accordingly, the plaintiff could rely on that less serious imputation at trial if that is all it was able to or wanted to establish against the defendant. Consequently, the defendant is entitled, per the principle identified in Manock, to justify that less serious imputation.
Accordingly I find that proposed paragraph 13 is a valid pleading for two reasons.
Firstly, on the basis that it is an arguably valid plea of justification of what the defendant says is one of the two stings complained of by the plaintiff in paragraph 9 of the statement of claim.
Secondly, on the basis that it arguably justifies an imputation that is less injurious and not of a substantially different kind than the imputation pled by the plaintiff, which the defendant is accordingly at risk of having held against it at trial.
Conclusions
Amended paragraph 9.5 of the statement of claim, whilst it does contain several factual elements, does not contain unnecessary and irrelevant verbiage, nor does it impermissibly roll up separate imputations. Accordingly the master was right to permit the amendments to the statement of claim, and in particular paragraph 9.5, that he did. The appeal against the master’s decision to allow the amendments to the plaintiff’s statement of claim should accordingly be dismissed.
Proposed paragraph 13 of the defence is a valid pleading, as a justification of one of the ‘stings’ that arises from the imputations pleaded by the plaintiff in paragraph 9 of the statement of claim, and also on the basis that it justifies an imputation of a less injurious but not substantially different kind than the imputations pled by the plaintiff which the defendant is consequently at risk of having held against him at trial, within the principles articulated in Manock. Accordingly the appeal against the master’s decision to strike out paragraph 13 of the statement of claim and refuse the defendant leave to amend it should be allowed.
Orders
1.The defendant’s appeal against the decision of the master granting leave to the plaintiff to amend the statement of claim is dismissed.
2.The defendant’s appeal against the decision of the master to strike out paragraph 13 of the defence and refuse the defendant leave to file a proposed amended paragraph 13 is upheld.
3.The defendant is granted leave to file an amended paragraph 13 as set out in the letter from Cowell Clarke dated 12 June 2012.
I will hear the parties as to costs and any consequential or further orders sought.