Interlocutory complexities in media litigation: The summary judgment, strike out and amendment applications considered in Tooley v Times [2026] EWHC 2027 (KB)

On 31 July 2026, Mr Justice Fordham handed down the second judgment in Cynthia Tooley MBE’s claim against Times Media Limited (Tooley v Times Media Ltd [2026] EWHC 2027 (KB) (31 July 2026)) (the third judgment, if you count the related Family Court proceedings). The second judgment considers a number of applications – made by both parties – and provides a useful distillation of the Court’s powers of summary judgment in a media claim. It also includes a worthwhile restatement of the Court’s approach to the amendment – and proposed strike out – of inadequate pleadings. 

Background

There are four causes of action in play in these proceedings: misuse of private information (the “MPI claim”); breach of confidence (the “BOC claim”); defamation; and malicious falsehood. 

The Times published “the Article”, with headline “Wife of anti-woke professor says she was ‘bullied’ by police” on 8 February 2025. The Claimant – the “Wife” in question – claims the Article was defamatory and/or constituted a malicious falsehood. The claim also concerns the video which formed the basis of the Article, which had been made by the Claimant for viewing only by her “very close friend[s]”, and which came into the possession of the Defendant. In the first judgment in these proceedings, Mrs Justice Steyn refused Norwich Pharmacal relief to identify the Defendant’s source of the video, but the video remains the object of the MPI and BOC claims. 

The Defendant issued an application to dismiss the entire claim, under all four causes of action and enter judgment. The Claimant opposed the application and made a separate application to rely on her third Draft Amended Particulars of Claim (“DAPC3”).  DAPC3 were said to remedy the defects identified in the Claimant’s pleadings but, to the extent the Court found necessary, the Claimant asked to be allowed further opportunity to amend. This, in turn, was opposed by the Defendant. 

Fordham J identified four relevant powers of disposal:

Viability (1): Summary judgment for the Defendant where the Claimant has no real prospect of success and there is no other compelling reason why the case or issue should be disposed of at trial; 

Viability (2): Strike out where a statement of case discloses no reasonable grounds for bringing the action; 

Propriety: Strike out where a statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of proceedings; and  

Conformity: Strike out on the basis of non-compliance with court rules.  

These powers are not isolated in their application and nor do they raise questions exclusively applicable to summary disposal: Fordham J specifically referred to the “obvious link” between the conformity of a statement of case and an application for permission to amend (looking specifically at the principles set out in Kim v Park [2011] EWHC 1781 (QB) and Magdeev v Tsvetkov [2019] EWCA Civ 1802). 

The MPI claim

The Defendant did not seek strike out of, or summary judgment in relation to the MPI claim on viability grounds; Steyn J found in her earlier judgment that the central balancing exercise of the MPI claim – between the Claimant’s reasonable expectation of privacy and the Defendant’s right to freedom of expression – should be undertaken when the substance of the claim is determined. 

Propriety: The Defendant argued that the MPI claim was effectively a McKennitt abuse of process (McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73); that is, the MPI claim did not address the “nub of the case” and was being plead as a workaround to defeat the burden of defamation rules. 

Decision: Unsuccessful for two reasons. The first judgment considered the purpose of the MPI claim and found that reputational harm, not privacy, was the true object of the Claimant’s action and, on that basis, refused the Claimant’s applications for amendment and interim injunction. But the circumvention Steyn J identified and eschewed was specific to interim relief and the onerous Bonnard v Perryman rules. That did not apply more generally to fact of the MPI claim. Further, there was nothing illogical or inconsistent about pleading an action in MPI alongside defamation: the fact of one does not dilute or discredit the other. 

Conformity: inconsistent with the approach to these proceedings to date, the Defendant took aim at the nonconformity of the Claimant’s pleadings. In particular, the failure to comply with PD53B and the corollary that the Defendant did not have proper notice of the claim to which it was to respond.  As to DAPC3, on which the Claimant sought permission to rely, the Defendant’s position was that these amendments were both too little (remaining insufficiently specified) and too late. 

Decision: The Court found that summary disposal on this basis – particularly where amended particulars had been made available and the MPI claim had already been deemed substantively viable – would not be appropriate. There was not a meaningful lack of clarity within the Claimant’s pleadings (particularly DAPC3), and any prejudice would be remedied, not by summary disposal, but by directing the Claimant provide further particulars. 

The BOC claim

Propriety: Just as no abuse of process subsisted within the MPI claim, so to the BOC claim survived this element of the Defendant’s challenge. 

Viability and Conformity: These arguments were considered in tandem: the viability of the BOC claim relied inherently on the conformity of the pleadings. The purpose of PD53B was to ensure that the essential elements giving rise to an action of BOC were plead. Failure to comply – in particular, failure to specify the circumstances from which confidentiality could reasonably be inferred – would be fatal to the progress of such an action.  

Decision: Fordham J accepted the Defendant’s submissions but, as with the MPI claim, found a sensible solution lay in redrafted pleadings (and additional evidence); the Defendant will be at liberty to apply for strike out or summary judgment following receipt of these refreshed pleadings. 

The Defamation claim

The Defendant’s application for summary judgment of the defamation claim could be boiled down to arguments of viability and conformity, and Fordham J identified an intrinsic distinction between the “Police Action” element and the rest of the defamation claim. The Police Action element concerned the Article’s reporting about what the Claimant had said in the video about the police (bullying, harassment and intimidation); the rest of the action was dominated by reporting about allegations about the Claimant’s husband and a relationship with a young woman. 

The Police Action

Viability: The Defendant’s position was that this element of the defamation action had no real prospect of success. The target of any defamatory allegation involving the Police Action would be the police, not the Claimant. Further, and in light of the transcript of the video, the content of the Police Action element of the Article was defensible as true.  

Decision: Fordham J found the Defendant had made a false equivalence between an action that was not bound to succeed and one which was bound to fail: he found, as Steyn J had, that the parties’ respective positions were arguable and should thus proceed to trial. 

Conformity: the Defendant submitted that the Claimant had failed to identify the words complained of and notwithstanding the corrections within the amended pleadings, the amendments were too late in the day and procedure (the use of a Form N244) had not been followed. 

Decision: The correct form should have been used but it would clearly be wrong, unjust and disproportionate to ignore the fact that the amended pleadings addressed the Defendant’s objections and complied with PF53B. 

The rest

Decision on conformity: Arguments impugning the lack of conformity failed here for the reasons they failed in relation to the Police Action element. 

Viability: The Defendant argued that the natural and ordinary meaning of the Article’s reporting about the Claimant’s allegations against Professor Tooley, the consequences these allegations had (his suspension) and the findings of an external enquiry (the allegations being unsubstantiated) was clearly defensible as true. 

Decision: These submissions were accepted as unanswerable and would be struck out. There was no operative prospect of success for the Claimant’s defamation claim in respect of these allegations. 

Malicious falsehood

In light of his foregoing conclusions about the “rest” of the defamation claim, Fordham J regarded there could be no corresponding malicious falsehood claim. Concerning the Police Action, a short viability analysis was undertaken but the decision quickly reached that a claim in malicious falsehood lacked foundation, the Claimant having failed to identify facts from which malice could be inferred, and there were neither prospects of success nor other compelling reasons to take this cause of action to trial. 

In summary: The MPI, BOC and defamation claims (insofar as the latter related to the Police Action) will proceed (with directions that the Claimant file and serve new draft pleadings, Form N244 and witness statement). The remainder of the defamation claim was struck out and summary judgment for the Defendant was given in respect of the claims for malicious falsehood. As reflected in Fordham J’s comments regarding costs, neither party emerged from the second judgment the victor. We will look forward to the court’s determination of the substantive merits of the case at trial. 

Previously on Tooley v Times: Three takeaways from the three applications in Tooley v Times Media Ltd [2026] EWHC 675 (KB)