Reference:  EWCA Civ 1411;  WLR (D) 474
Court: Court of Appeal (Civil Division)
Judge: Sharp LJ, Macur LJ, Lewison LJ
Date of judgment: 30 Oct 2014
Summary: Defamation - Libel - Internet publication - Limitation period - Disapplication - s.32A Limitation Act 1980 - Jameel abuse
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Appearances: Justin Rushbrooke KC - Leading Counsel (Appellant)
Instructing Solicitors: Aslan Charles Kousetta LLP for the Appellants; Bindmans LLP for the Respondent
C was a local authority approved foster carer and Chair of the Norfolk Foster Carer Association. He brought libel proceedings over words published as part of a legal case note published on the LexisNexis and Community Care Inform (CCI) websites. The case note concerned C’s successful judicial review proceedings in 2010. The case note was placed on the LexisNexis website on 7 October 2010 and accessible only to subscribers. The case note was placed on the CCI website on 10 January 2011 – the full case note was only available to subscribers but an automatically generated “snippet” from the case report (the words complained of) was accessible to the general public. C alleged that the meaning of the words in the snippet was that he was a paedophile.
C saw the snippet on 27 February 2012 and complained immediately to CCI. The case note was taken down by CCI. In May 2012, LexisNexis also removed the report, and published an amended report and apology. The claim was then not commenced until 6 February 2013.
The Ds subsequently applied to strike out the claim on the grounds of Jameel abuse, arguing that the number of hits falling within the limitation period was minimal (3 in total) and there was no prospect of obtaining a final injunction. C cross-applied some six months later to disapply the limitation period under s.32A Limitation Act 1980.
HHJ Moloney QC allowed C’s application and dismissed the Ds’. He held that C’s delay was justified because he was seeking to resolve issues with the Ds in correspondence without resorting to litigation, and as a litigant in person, he was ignorant of the limitation period until he took legal advice in early 2013.
The Ds appealed.
(1) Should the 1 year limitation period be disapplied under s.32A of the Limitation Act 1980?
(2) If not, should Ds’ Jameel abuse application succeed and the claim be dismissed?
Allowing Ds’ appeal and striking out C’s claim:
(1) The Judge’s exercise of discretion was flawed and the limitation period should not have been disapplied:
(a) There was serious and unexplained delay by C in this case. The delay was excessive in the context of a limitation period of one year and in the context of a libel claim in which special considerations apply. The key period of delay was after C found out about the case report in February 2012. A careful and objective analysis of the correspondence which followed demonstrated that C’s object was not “continued discussions with regard to redress for the publications” or “bona fide negotiations for a further year” as he asserted. Instead, C had engaged in repetitive and protracted correspondence in which the pursuit of vindication assumed only a peripheral role. What C wanted was an investigation into “lies” and a finding of malice on the part of the court reporter.
(b) The Judge had relied heavily on his finding that C did not become aware of the one year limitation period until early 2013. However, there was no sure evidential basis for making this finding and such an inference could and should not have been drawn from the material before the court. In any case, ignorance of the limitation period will rarely if ever, be a factor which carries any significant weight. Ignorance could only be relevant in the most marginal type of case, where a claimant is actively misled for example, and this was not such a case.
(c) Further, the Judge made no mention of the delay after proceedings were issued. However, the post-proceedings delay was significant in this case. C knew there were significant limitation problems from the outset of the claim, if not before, but did not issue the s.32A application for some 6½ months later – a delay that was not explained.
(d) Looking at the matter afresh and considering the balance of prejudice, C had not made out a case for the disapplication of the limitation period. C failed to provide any or any persuasive evidence of the reasons for the delay between February 2012 and September 2013. This is not a case where the prejudice to the Ds from the loss of the limitation defence was so fortuitous that it was balanced out of existence, by prejudice to C in losing a claim which the Ds ought in justice and fairness to meet.
(2) Thus, looking at the claim that was left – this fell squarely within the Jameel jurisdiction. There were a miniscule number of publications in the 12 months leading up to the issue of the claim form, it could not be said the claim was brought to vindicate reputation in respect of those publications, damages would be minimal, the publications had long since been taken down and there could be no question of any need for an injunction. The claim would therefore be dismissed.
This appeal provides valuable guidance in an area of law where there are still few authorities, and in which there is even scarcer guidance in respect of continuing online publications. s.32A applications are likely to take on even greater significance now that the Defamation Act 2013 has come into force. Section 8 introduces a single publication rule which prevents claimants from suing over a continuing publication after expiry of 1 year from the date of initial publication – that is, unless he can first persuade the court that the limitation period should be disapplied under s.32A. Such applications are thus likely to become increasingly frequent and take on particular importance.
The appeal also deals with the interesting issue of whether a claimant’s ignorance of the limitation period can ever be relevant to the exercise of discretion under s.32A. This could have led to a situation where different considerations applied to litigants in person. However, the Court has made clear in this judgment that such a factor will rarely if ever be a factor which carries any significant weight. The universal principle underlying libel claims is that all claimants must pursue vindication promptly irrespective of whether they know about the limitation period, that being one of the hallmarks of a genuine libel complaint.