Frank Otuo v Watchtower Bible and Tract Society of Britain
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Lady Justice Gloster,The Chancellor |
| Judgment Date | 09 March 2017 |
| Neutral Citation | [2017] EWCA Civ 136 |
| Docket Number | Case No: A2/2015/1328 and A2/2015/1785 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 March 2017 |
[2017] EWCA Civ 136
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HH JUDGE PARKES QC sitting as a Deputy High Court Judge
HQ13D03735
Royal Courts of Justice
Strand, London, WC2A 2LL
The Chancellor
Lady Justice Gloster
and
Lady Justice Sharp
Case No: A2/2015/1328 and A2/2015/1785
Frank Otuo in person
Simon Achonu (instructed by Watch Tower Legal Department) for the Respondent
Hearing date: 8 November 2016
Approved Judgment
Introduction
This is an appeal, with the permission of Vos LJ from the order made by HH Judge Parkes QC sitting as a Deputy High Court Judge on 9 March 2015, in which he refused to exercise his discretion pursuant to section 32A of the Limitation Act 1980 to exclude the time limit for bringing this action for slander. The appellant also renews his application for permission to appeal against an Order made by HH Judge Moloney QC on 14 May 2015. At the end of the hearing, we announced that the appeal was allowed, and the renewed application was refused. These are my reasons.
Background
The appellant in this case, Mr Frank Otuo, brings these proceedings for slander against the Watchtower Bible and Tract Society of Britain, the representative body of the Jehovah's Witnesses, in respect of an announcement made on the 19 July 2012 at the Wimbledon Congregation of Jehovah's Witnesses, by Mark Lewis, a local congregation elder. He commenced his action by issuing his claim form on 19 July 2013. The words said to have been spoken are these: "Frank Otuo is no longer one of Jehovah's Witnesses" (or "disfellowshipped" as it is described). The appellant who has represented himself throughout these proceedings, alleges that these words mean by innuendo, that he was remorselessly engaged in one of the following activities: fraud, paedophilia, theft, adultery, fornication, drunkenness.
In its defence to the claim, the respondent asserts amongst other things that claim is not justiciable, that the words are not defamatory of the appellant, and that they were published on an occasion of qualified privilege.
The claim itself is a straightforward one, but its procedural history, which is important to this appeal, is somewhat tangled, and it is necessary to set it out.
The matter came before HH Judge Moloney QC on 5 December 2013 on an application made by the respondent to strike out the claim, on the ground that the words were not defamatory, and the claim was non-justiciable. The judge held that the words complained of were not defamatory in their ordinary and natural meaning, but declined to strike out the innuendo meaning or to find the claim was not justiciable, though he gave liberty to re-apply after service of the reply.
On 19 June 2014, after service of its defence, the respondent made a further application to strike out the claim on the ground that it had been brought outside the primary limitation period of one year which applies to claims of slander by section 4A of the Limitation Act 1980.
Section 4A of the Limitation Act 1980 , as amended provides that:
"…no such claim [that is, an action for libel or slander] shall be brought after the expiration of one year from the date on which the cause of action accrued."
On 30 October 2014, Master Leslie determined that issue in favour of the respondent, and struck the claim. He said:
"The one year specified by the relevant statute expired at midnight on 18 th July 2013. Mr Otuo did know he had to bring his claim within a year. On 29 th June 2013, he had had a casual conversation with a friend, who was a lawyer. He thus became aware of the possibility that he had a right of action. ON 19 th July 2013, he issued the proceedings…It cannot be that they were issued within the one year, as, in law, days are indivisible. Mr Otuo is an intelligent man, but his suggestion as to what the words of the statute mean is not acceptable. The one year ended at midnight on 18 th July 2013, in spite of his ingenious argument."
The Master awarded the respondent one third of its costs as he took the view, that it could and should have taken the limitation point earlier. He granted the appellant permission to appeal but solely on the question whether the respondent was precluded from relying on the limitation defence by acquiescence and estoppel.
The appellant duly appealed on that issue. He also argued that the Master should have dealt with his application to disapply the primary limitation period made pursuant to section 32A of the Limitation Act 1980, which had been issued on 29 July 2014. On 12 December 2014, his appeal was dismissed by Sir David Eady, sitting as a High Court Judge. We do not have a transcript of the judgment, but it is common ground that it dealt with the issue of law on which permission to appeal had been given, that is, acquiescence, and estoppel, and did not trespass on the other matter determined by the Master, namely whether the claim had been brought within the limitation period or not.
Sir David Eady obviously took the view (correctly) that the appellant's application to disapply the limitation period made before the hearing below, should have been considered by Master Leslie. Accordingly, he directed that this issue should be listed to be heard by a judge. He also ordered the costs order made by Master Leslie be stayed pending the determination of the section 32A application, and that the appellant should pay the respondent's costs of the appeal.
Section 32A of the Limitation Act 1980 provides as follows:
"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and
b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents, the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates.
(2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—
a) the length of, and the reasons for, the delay on the part of the plaintiff;
b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A—
(i) the date on which any such facts did become known to him, and
(ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and
c) the extent to which, having regard to the delay, relevant evidence is likely—
(i) to be unavailable, or
(ii) to be less cogent than if the action had been brought within the period mentioned in section 4A.
The appellant's application to disapply the limitation period pursuant to section 32A of the Limitation Act 1980 was heard by HH Judge Parkes QC sitting as a Deputy High Court Judge on 16 January 2015. On 9 March 2015, the judge ordered that the Order of Sir David Eady, striking out the action and ordering costs against the appellant should stand, and the stay of the order for costs made by Master Leslie should be lifted. The appellant was also ordered to pay the costs of the application to disapply, to be assessed in default of agreement, and to make a payment of £15,000 on account within 28 days.
In the course of his judgment, HHJ Parkes QC said that experienced defamation judges have tended to regard the disapplication of the limitation period as an exceptional matter, and set out what I had said in Bewry v Reed Elsevier UK Ltd [2014] EWCA Civ 1411, [2015] EMLR 6 at para 5, which was this:
"…it is clear that special considerations apply to libel actions which are relevant to the exercise of this discretion. In particular, the purpose of a libel action is vindication of a claimant's reputation. A claimant who wishes to achieve this end by swift remedial action will want his action to be heard as soon as possible. Such claims ought therefore to be pursued with vigour, especially in view of the ephemeral nature of most media publications. These considerations have led to the uniquely short limitation period of one year which applies to such claims and explain why the disapplication of the limitation period in libel actions is often described as exceptional."
The judge said that the onus was on the claimant to make out a case for disapplication; and that "Much will depend on the explanation which the claimant gives for the delay." He said the appellant's reasons for failing to apply within the time limit were inadequate. The appellant knew about the publication complained of, and what was, on his case, its serious innuendo meaning from the date of publication; he also knew he had a cause of action for slander and of the relevant limitation period for some weeks before he issued a claim. Yet he had made no complaint about the publication itself before issuing proceedings; indeed, the first the respondent knew of the complaint, was when claim form was served. He said the appellant's concern appeared to be reinstatement rather than anything else.
The judge said this about the fact that the proceedings were issued one day out of time (as he understood the position to be):
"32. Nor am I impressed by the claimant's argument that the discretion should be exercised in his favour given his mistake as to the last date on which to issue, or given the fact that he was only a day out of time. There was no good reason to leave issuing proceedings until the last minute. This is not a...
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Frank Kofi Otuo v Watch Tower Bible and Tract Society of Britain
...by the Courts below which had the effect of ruling that it was time barred: see Otuo v Watchtower Bible and Tract Society of Britain [2017] EWCA Civ 136. 3 The second claim (“Claim 2”) is brought against Watch Tower Britain and Jonathan Morley, the coordinator of the body of Elders of the ......