Brady v Norman
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 09 February 2011 |
| Neutral Citation | [2011] EWCA Civ 107 |
| Docket Number | Case No: A2/2010/1562 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 February 2011 |
[2011] EWCA Civ 107
The Hon Mr Justice Eady
Before : President of the Queen's Bench Division
Lady Justice Smith
and
Lord Justice Aikens
Case No: A2/2010/1562
HQ09X02747
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Mr Adrian Davies (instructed by Petersfields Llp) for the Appellant
Mr Jonathan Crystal (instructed by Thompsons Solicitors) for the Respondent
Hearing date: 19 th January 2011
President of the Queen's Bench Division:
This is the judgment of the court.
By section 2 of the Limitation Act 1980, an action founded on a tort may not be brought after the expiration of six years from the date on which the cause of action accrued. By section 57(2) of the Administration of Justice Act 1985, this six year time limit was reduced to three years for actions for libel and slander. By the Defamation Act 1996, the time limit was yet further reduced to one year, and thus it appears in section 4A of the 1980 Act as amended. The amendments reducing the time limit for defamation actions no doubt had regard to the fact that libel and slander can often be torts of transient effect.
Section 32A of the 1980 Act enables the court to disapply section 4A if it appears to the court that it would be equitable to allow the action to proceed having regard to the degree to which the time limit prejudices the claimant and to the degree to which disapplying the time limit would prejudice the defendant. Disapplying the time limit will always prejudice a defendant, because he will lose his limitation defence. So said Lord Diplock in Thompson v Brown [1981] 1 WLR 744 at 750B. Refusing to disapply the time limit will always prejudice the claimant, because he will continue to be met with a complete statutory defence to his claim irrespective of the merits. The balance between those prejudices will vary depending on the facts of particular cases, and a judicial decision as to what is equitable will likewise vary from case to case. To take an obvious example, if a claimant is by mistake a few days late in starting a libel action, when the defendant has been expecting the claim because the parties have operated the pre-action protocol, and if there are no serious evidential problems affected by delay, the claimant may be heavily prejudiced if the limitation period is not extended, and the defendant will lose no more than a fortuitous windfall if the period is extended.
In acting under section 32A, the court is required by section 32A(2) to have regard to all the circumstances and in particular to the length of and reasons for the delay; to the date when all or any of the facts relevant to the cause of action became known to the claimant and to the extent to which he then acted promptly and reasonably; and to the extent to which relevant evidence is likely to be unavailable or less cogent because of the delay.
Sections 11 and 12 of the 1980 Act provide a special time limit (3 years, subject to sections 11(4) and (5) and 12(2)) for actions in respect of personal injuries or death. Section 33 provides for a discretionary exclusion of those time limits in terms which are much the same as those in section 32A. In particular, by section 33(1), the court has to decide whether it would be equitable to allow the action to proceed having regard to a balance of prejudice equivalent to that in section 32A.
In Steedman v BBC [2001] EWCA Civ 1534, [2002] EMLR 318, this court decided in a libel action that the court's discretion under section 32A to disapply the one year limitation period was largely unfettered and should be applied according to its terms. The court considered, as had Lord Diplock in Thompson v Brown, that a direction under the section was always highly prejudicial to the defendant; and that the expiry of the limitation period was always in some degree prejudicial to the claimant depending on the strength or otherwise of the claim and defence. The claimant would suffer some, perhaps minor, prejudice, even if he had a cast iron claim against his solicitor. The court had to consider all the circumstances, including the specific matters referred to in the section. The defendant's ability to defend the action notwithstanding the delay was important, but not decisive unless the limitation defence might properly be seen as a complete windfall. David Steel J, who gave the first judgment, referred to the judgment of Parker LJ in Hartley v Birmingham City Council [1992] 1 WLR 968, an appeal concerning a personal injury claim where the proceedings had been issued inadvertently one day late. Parker LJ, having referred to what Lord Diplock had said in Thompson v Brown, said that, because prejudice resulting from the loss of a limitation defence will almost always be balanced by prejudice to the claimant from the operation of the limitation provisions, the loss of the defence as such would be of little importance. What was of paramount importance was the effect of the delay on the defendant's ability to defend. David Steel J pointed out that Hartley v Birmingham was a remarkable case on its facts and that it was a personal injury action. The first instance judge in Steedman had been justified in considering that libel actions raised somewhat different considerations. The progressive reduction of the limitation period from 6 years to 1 year was explained by considerations in the recommendations of the working group of the Supreme Court Procedure Committee chaired by Neill LJ, passages from which David Steel J quoted. These considerations included that claims to protect one's reputation ought to be pursued with vigour in view of the ephemeral nature of most media publications. David Steel J said that, although the effect of the delay on the ability of the defendant to defend a defamation action remains important, it is not to be regarded as in any way decisive, except perhaps where the limitation defence can fairly be described as a complete windfall. He concluded his judgment saying that failure to act promptly prejudices both parties and the court.
Hale LJ said at paragraph 33 that it is for the claimant to make out a case for the disapplication or relaxation of the normal rule. Brooke LJ referred in paragraph 41 to the very strong policy considerations underlying modern defamation practice and endorsed what Eady J had said in Clarkson v Gilbert (26 th February 2001) that defamation and malicious falsehood claims have been placed in a special category with regard to limitation. Brooke LJ said at paragraph 46 that the experience of the judges in this highly specialist field needs to be taken carefully into account before there is any question of reintroducing a more relaxed limitation regime for defamation cases.
Steedmann v BBC is binding on this court. It was not referred to the court in the more recent decision of Cain v Francis [2008] EWCA Civ 1451; [2009] QB 754. This is not perhaps surprising, because Cain v Francis concerned two personal injury appeals in which the first instance judges had adopted rather different approaches to the application of section 33 of the 1980 Act. Each claim arose from a road traffic accident in which the defendant drivers' insurers had accepted liability but the claims had subsequently become statute barred under section 11 of the 1980 Act. In the first case, the delay in issuing the claim was one day and the defendant had had early notification of the claim and every opportunity to investigate it. This court held that the first instance judge had been wrong to consider that the loss of the limitation defence would amount to real prejudice to the defendants. In the second case, the delay was a year. This court held that the judge was entitled to hold that this had not significantly prejudiced the defendant and that it was equitable to allow the claim to proceed.
Smith LJ gave the first and main judgment. She referred to Thompson v Brown and Hartley v Birmingham City Council and to earlier cases. She referred to passages in Hartley v Birmingham in particular in which Parker LJ noted that limitation was a fortuitous and technical defence to a claim which in justice the defendants...
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