Full case report
Edwards v Golding & Others (CA)
Reference  EWCA Civ 416;  WLR (D) 88; The Times, 22 May 2007
Court Court of Appeal
Judge Buxton, Wilson and Moses LJJ
Date of Judgment 3 Apr 2007
Defamation – Libel – Limitation – Accrual of cause of action – Addition of parties – s.32A Limitation Act 1980 – CPR 19.5 – CPR 3.1(7)
The claimant (C) commenced libel proceedings against D1 and D2 in 2002. The proceedings had never been served upon D1 and the proceedings against D2 were discontinued as C intended to issue proceedings against D3. C then applied to join D3, asking the court to disallow any limitation period pursuant to section 32(a) Limitation Act 1980 because he had only become aware a couple of weeks prior to his application that D3 was the author of the allegedly libellous publication.
The Master ruled that there was a triable issue as to whether C had known until very shortly before the hearing on 12 July 2005 that D3 was the author. He permitted the joinder of D3, leaving it to D3 to plead a limitation defence, if so advised.
D3 subsequently failed to defend the claim and C obtained judgment in default, with damages to be assessed.
Some 7 months later, D3 applied to set aside the Master’s order. The grounds advanced before the judge were that (1) the limitation period for the publication complained of had expired and the application was misconceived as CPR 19.5 did not apply and (2) alleged ignorance on the part of C as to D3’s role in the publication could not, as a matter of law, affect the date on which the limitation period expired.
Tugendhat J held that there were two bases upon which the Master’s order was wrong, made without jurisdiction and should therefore be revoked:
(1) The application to join D3, as opposed to starting a new action against him, was misconceived as CPR 19.5 did not apply. Limitation had expired in or about March 2003; there was no appropriate action in existence and it was not necessary for D3 to be a party to it;
(2) The Master was mistaken in thinking that his order would permit the limitation issue to be raised by D3 in the action that he permitted to be pursued. If a party is joined he is treated as having been a party from the beginning of the original action, that being the force of section 35.1(b) of the Limitation Act 1980. As such he therefore lost his limitation defence.
The proper practice, in a case where a new defendant might have a limitation defence, was for a claimant to seek permission under section 32A Limitation Act 1980 to issue proceedings prior to any commencement of fresh proceedings.
C appealed against the decision of Tugendhat J to set aside the order allowing the joinder of D3.
(1) Whether a cause of action in defamation accrues before a claimant knows the identity of the person responsible for the publication complained of;
(2) Even if the Judge was correct, was D3 permitted to apply under CPR 3.1(7) to revoke the Master’s order (as he had done) rather than appeal it which C contended was the correct approach?
Dismissing the appeal,
(1) The limitation period for libel is one year from the date that the cause of action accrued. If a claimant wishes to proceed with a claim outside of the limitation period, he must make an application as provided for by section 32A of the Limitation Act 1980. The cause of action accrues, in defamation, on publication. That is an objective question and has nothing to do with the subjective knowledge of the defamed person (either of the fact of the defamation or the identity of the defamer). If he fails to sue or to sue the right person because he subjectively has not got the information necessary to start proceedings, then he has to ask for relief under Section 32A of the Limitation Act 1980.
(2) The jurisdiction under CPR 3.1(7) is not a substitute for an appeal. There must be additional material before the court (in the form of evidence or, possibly, argument) that the case before the court at which CPR 3.1(7) is invoked must be essentially different from one of simple error that could be corrected on appeal.
The judge was correct to hold that the Master’s order could be corrected under CPR 3.1(7) as the order was one which the Master had no jurisdiction to make in the form made (or at all) as there was no live action and the limitation period had expired. The Master, counsel for C and D3 were all proceeding under the same mistake or mistakes as they all thought that the order did leave a limitation defence open to D3. If this mistake had been discovered promptly, an appeal would inevitably have succeeded. As such, the Master’s order could be corrected under CPR 3.1(7).
A relatively complicated case procedurally but one which restated the basic principles concerning limitation in a defamation action and the approach a claimant should adopt where the limitation period has expired. The Court of Appeal re-affirmed that the subjective knowledge of the claimant is irrelevant to the question of when the limitation period in defamation starts to run and is a matter which should instead be raised in any application pursuant to section 32A Limitation Act 1980.
Osmond and Osmond for Claimant; David Price Solicitors for Defendant
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.