Reference:  UKPC 1
Court: Privy Council
Judge: Lady Hale, Lord Kerr, Lady Black, Lord Briggs, Lord Kitchin
Date of judgment: 16 Jan 2019
Summary: Defamation - Limitation - Discretionary exclusion of time limit for actions for defamation or malicious falsehood - s.30A of the Limitation Act 1984 (Isle of Man) - s.32A Limitation Act 1980 (England & Wales)
Appearances: Desmond Browne CBE KC - Leading Counsel (Appellant) Jacob Dean (Appellant) Christina Michalos KC (Respondent)
Instructing Solicitors: Callin Wild LLC for the Appellants, de Cruz Solicitors for the Respondents
The Claimant (the Respondent to the appeal) was a resident of the Isle of Man. He had worked as the right hand man of a wealthy businessman, Mr Albert Gubay for many years but was dismissed in July 2009. The Claimant brought a claim for libel in respect of a letter sent by the Appellants (the Defendants – a Mr Nugent and his accountancy firm BDO (Isle of Man) LLC) to Isle of Man Customs and Excise. The Claimant contended that the letter suggested that he had been guilty of gross impropriety in connection with the affairs of Cross Atlantic Venture Ltd and other companies linked to Mr Gubay.
The Claimant did not become aware of the letter until 22nd June 2013 or shortly thereafter when he received it as part of a response to a subject access request he had made. As soon as the Claimant became aware of the contents of the letter he instructed his Isle of Man Advocates and on 29th June 2013 sent a copy by email to his English solicitor asking for advice. On 7 November 2013 letter before action were sent to the Appellants with draft Particulars of Claim. On 15th December 2013, the Claimant issued libel proceedings in the Isle of Man.
The claim was not an isolated claim. In the Isle of Man Mr Gubay was pursuing claims against the Claimant alleging impropriety relating to supply of building materials for his personal use. There had been English proceedings against the Claimant which were discontinued. The Claimant also had brought English proceedings against Mr Gubay for civil malicious prosecution in which he alleged the others claims against him (the Claimant) were part of a campaign by Mr Gubay to do him harm.
Mr Gubay died on 5th January 2016.
The limitation period for libel claims in the Isle of Man is 1 year, as in England and Wales.
The Appellants applied to strike out the claim various grounds including that the claim was out of time and that it was an abuse of process as the costs of the claim would outweigh any legitimate benefit (Jameel v Dow Jones & Co Inc  QB 46). The Claimant (Respondent) made a cross application to postpone the limitation period on the grounds the letter had been concealed from him or allowing the claim to proceed under s.30A Limitation Act 1984 (Isle of Man) [Discretionary exclusion of time limit for actions for defamation or malicious falsehood] which is in near identical terms to s.32A Limitation Act 1980 (England & Wales).
At first instance in the Isle of Man, Deemster Corlett dismissed the Appellants’ application to strike out the claim and refused to postpone the limitation period but decided to exercise his discretion to allow the action to proceed under s.30A.
The Appellants appealed in the Isle of Man to the Staff of Government Division. The appeal was heard by Judge of Appeal Tattersall QC and Deemster Doyle. On 30th June 2016 they gave judgment dismissing the appeal holding that Deemster Corlett had properly considered all of the delay from October 2010 and that he was entitled to concluded that the Claimant had acted reasonably promptly once he discovered the letter.
The Appellants appealed from the Isle of Man appellate court to the Judicial Committee of the Privy Council which granted permission to appeal on 15th February 2017.
The issues on appeal were:
i) When considering the effect of the unavailability of evidence on the balance of prejudice between the parties for the purpose of section 30A of the Limitation 1984 Act (Isle of Man), is the court confined to considering only the effect of the passage of time from the date on which the claimant had knowledge that the facts in question might be capable of giving rise to a cause of action, or must the court also take into account the passage of time from the expiry of the limitation period?
ii) When considering for the purposes of section 30A(2)(b)(ii) of the 1984 Act whether the claimant acted promptly and reasonably after discovering the cause of action, is it permissible for the court to infer that the claimant acted reasonably when he has chosen not to give evidence to that effect?
Dismissing the appeal:
- Applying Steedman v BBC  EWCA Civ 1534 and Brady v Norman  EWCA Civ 107, the following principles are applicable to the exercise of the discretion to extend the limitation period: – (1) It is for the claimant to make out a case for the disapplication of the normal limitation rule; (2) The court is required to have regard to all of the circumstances and in particular the length of and reasons for the delay; the date when the facts relevant to the cause of action became known to the claimant & the extent to which he acted promptly and reasonably; and the extent to which, having regard to the delay, relevant evidence is likely to be unavailable/ less cogent than it would have been if the claim had been brought within time. (3) Allowing an action to proceed will always be prejudicial to a defendant but, conversely, the expiry of the limitation period will always be in some degree prejudicial to the claimant. Accordingly, in exercising its discretion, the court must consider the degrees of prejudice to the claimant and the defendant, all of the other circumstances to which attention is directed by the section and any other relevant circumstances of the particular case in issue. (4) It was plainly the intention of Parliament that a claimant should assert and pursue his need for vindication speedily.
- Applying Thompson v Brown  1 WLR 744 & Donovan v Gwentoys Ltd  1WLR 472, the Board was satisfied that following arguments of the Appellants’ were correct: (i) there is high authority for the proposition that the delay to be considered in applying section 30A is the delay subsequent to the expiry of the limitation period; (ii) that the word “delay” must have the same meaning in section 30A(2)(a) and section 30A(2)(c); and (iii) that there is no warrant for treating the length of the period of delay in section 30A(2)(c) differently depending on whether the court is considering the unavailability of evidence or its diminished cogency, contrary to the view of the Staff of Government Division.
- However, these propositions were never in dispute. A Court is plainly entitled to treat some periods of delay as more relevant than others and depending upon the circumstance of the case, to have particular regard to the period since the Claimant became aware of the facts and acted promptly and reasonably thereafter. The Board was satisfied that Deemster Corlett had regard to the whole period of delay from the expiry of the limitation period. He was entitled to conclude that the delay of greatest relevance was that after which the Claimant became aware of the relevant facts.
- On the second issue, the Deemster was entitled to draw the inference that being a specialist area the Claimant would have needed advice and assistance in drafting the particulars of claim. The Deemster was also well aware that this was not an isolated claim and formed part of wide and complex litigation and he was particularly well placed to assess this as he was familiar with the details of those other proceedings as his judgment made clear.
- The Board was satisfied that the Deemster made no error of principle and his judgment contained no material misdirection. A different tribunal might well have come to a different conclusion but it could not be said in exercising his discretion in the way that he did, the Deemster exceeded the generous ambit within which reasonable disagreement was possible.
The case will be of interest to practitioners in England and Wales because the section of the Isle of Man Limitation Act 1984 (s.30A) in issue is almost identical to the wording of the equivalent provisions in s.32A Limitation Act 1980 (England & Wales). The only very trivial difference is that that in England & Wales, s.32A(2)(b)(i) refers to ‘the date on which any such facts did become known to him” rather than “any of the facts” in s.30A (2)(b)(i) of the Isle of Man statute.
The key points of law to be take from this case are that:
(1) A Court is plainly entitled to treat some periods of delay as more relevant than others (para 33);
(2) In defamation cases where the Claimant becomes aware of the publication after the expiry of the limitation period, it is reasonable to take the view that the delay of greatest relevance is that which occurs after the Claimant becomes aware of the material facts (para 35); and
(3) The approval of the principles in Steedman v BBC  EWCA Civ 1534 and Brady v Norman  EWCA Civ 107 (as set out above) at paragraph 17 of the Judgment.
Related proceedings: The 2016 Supreme Court Decision in Willers v Joyce holding that there is a tort of malicious prosecution for civil claims in English law: Willers v Joyce Supreme Court Judgment.