Brady v Norman (No 2) (CA)
Reference:  EWCA Civ 107
Court: Court of Appeal (Civil Division)
Judge: Sir Anthony May P, Smith LJ and Aikens LJ
Date of judgment: 9 Feb 2011
Summary: Defamation - limitation - section 32A of the Limitation Act 1980 - s.33 Limitation Act 1980
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Instructing Solicitors: Petersfield LLP; Thompsons
C is the former General Secretary of ASLEF, the train drivers’ union, and D is the current General Secretary. In September 2008 C, during a separate defamation action between the parties C became aware of a defamatory speech made by D in the June 2006 ASLEF conference which referred to him. In June 2009 C sought to commence a fresh libel action by issuing a Part 8 claim seeking disapplication of the one year limitation period. The Master rejected the application, and took the loss of a limitation defence into account as a factor prejudicial to D. Eady J refused B’s appeal. C appealed, contending that the loss of a limitation defence could not be taken into account under section 32A of the Limitation Act and that Cain v Francis  QB 75 (an authority concerned with the disapplication of the 3 year limitation period in personal injury claims under s. 33 of the Act) was inconsistent with the decision of the Court of Appeal in Steedman v BBC  EMLR 318. C also argued the delay in issuing the Part 8 claim was reasonable, that a qualified privilege defence was bound to fail, and that D’s ability to defend the claim in terms of the availability of evidence had not been prejudiced.
Whether the Master had been wrong to hold that loss of a limitation defence which prejudiced a defendant could be taken into account on exercising the discretion under s. 32A and whether the approach of the Court to the prejudicial effect of losing such a defence in Cain v Francis  QB 75 was inconsistent with Steedman v BBC  EMLR 318.
Dismissing the appeal:
(1) Steedman v BBC and Cain v Francis could be reconciled, and represented application of the same principles to differing circumstances. The prejudical effect of the loss of a windfall limitation defence in a personal injuries claim where liability may have already been admitted was removed from the policy considerations bearing on the disapplication of limitation in defamation claims, where Parliament had intended that vindication of reputation should be pursued speedily and a direction under section 32A was always highly prejudicial to the defendant..
(2) In balancing the competing factors, the explanation for the delay between discovering the defamatory publication and issuing a claim (funding difficulties) was unpersuasive, and the prejudice to the Defendant of losing a limitation defence was not so fortuitous that it was outweighed by the prejudice of the claimant losing the opportunity to bring his claim. The Master had been entitled to exercise his discretion in refusing the application.
The nature of the discretion to be exercised on a s. 32A application is largely unfettered and the court will perform a balacing exercise, focussed on the prejudice suffered by each party. The Court of Appeal recognised that although the same approach, in principle, was taken in defamation and personal injury cases to disapplication of the limitation period, the considerations the Court deals with will differ. The President noted the Judge’s reference to the prejudice caused by the fact of being sued as an interference with freedom of expression, a factor not present in personal injury cases.