Reference:  EWHC 3394 (QB)
Court: High Court (Queen's Bench Division)
Judge: Eady J
Date of judgment: 16 Dec 2011
Summary: Defamation - limitation - discretion to disappy limitation - qualified privilege - malice
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Godwin Busuttil (Claimant)
Instructing Solicitors: Lewis Silkin LLP for C, D in person
C had been employed as a teacher at a school operated by D. He was dismissed in 2008 for alleged gross misconduct. An internal appeal was dismissed and an employment tribunal claim was settled. C then issued a number of claims against D and its advisors, including this defamation action.
Following C’s dismissal, D was under a statutory obligation to provide information to the General Teaching Council of England (GTC) via the (then-named) Department for Children, Schools and Families (DCSF). This was done in a telephone conversation and a confirmatory email. D updated that information with a follow-up email after the Employment Tribunal claim had concluded. At this point it was discovered that C had never been registered with the GTC. Having been instructed to do so by DCSF, D also spoke to the Independent Safeguarding Authority (ISA).
It was not entirely clear what the words complained of were, but C’s complaint appeared to be concerned with what was said by D in the emails and telephone calls and also the alleged republication of that material via ISA’s database.
The Master dismissed C’s claim on the ground that all the alleged causes of action were time-barred. C appealed. In granting permission to appeal Lloyd Jones J had suggested that there may be points worth arguing under s32A Limitation Act 1980.
Was the Master right to strike out C’s claim as time-barred?
Should the court now exercise its discretion under s32A Limitation Act 1980 to extend the period for bringing a claim?
The Judge also observed that:
– There was no evidence that the information D provided the ISA had been republished to any third parties;
– It was likely that D would have a qualified privilege defence as it had published in line with a statutory duty to do so.
On s32A Limitation Act 1980: There was no reason to take the exceptional step of dis-applying the limitation period:
– There was no explanation for the delay – this was not a case where C did not know all the relevant facts until a later date;
– C’s case was weak on the merits given D’s likely privilege defence and there being no case of malice, a matter that is difficult to prove against a corporate D – it is insufficient to make vague, generalised allegations of malice against a corporate D;
– Even if C were to succeed he would gain very little worthwhile either by way of compensation or vindication. The very limited publication in this case was to be contrasted with the enormous expense and inconvenience to D of having to defend the claim;
– There was no risk of further publication by D.
The Master’s decision to strike out the claim on limitation grounds was unimpeachable. The claim was clearly some months out of time.
A clear example of the application of the factors to be considered under s32A Limitation Act, and a common sense, proportionate approach to the management of defamation litigation before the court, in line with the overriding objective.
The Judge set out and ran through the factors to be taken into account when considering whether the exercise the court’s discretion to extend time, as listed in s32A itself. Ultimately the court has to decide whether it would be “equitable” to extend the period, having regard to all the circumstances.
In considering the case law the court noted that disapplying the limitation period always prejudices D, but equally refusing to do so inevitably prejudices C, so a balance has to be struck based on the specific facts of the case. The particular need for speedy vindication in defamation cases was also something to be weighed in the balance.
It is clear that the Judge thought C’s claim had little prospect of success on its merits, as shown by reference to the lack of evidence of any publication beyond the publication to persons to whom D had a statutory duty to publish. The Judge’s remarks on malice reiterate pre-existing case law – when alleging malice against a corporate entity the claimant must identify the individual(s) alleged to have had the requisite state of mind. Proving malice in such circumstances is, as was noted, extremely difficult.