Mr Awadhesh Tewari v Mr Vijay Khetarpal & 23 Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Collins Rice |
| Judgment Date | 01 August 2022 |
| Neutral Citation | [2022] EWHC 2066 (QB) |
| Docket Number | Case No: QB-2021-004309 |
| Court | Queen's Bench Division |
[2022] EWHC 2066 (QB)
THE HONOURABLE Mrs Justice Collins Rice
Case No: QB-2021-004309
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Caroline Addy (instructed by Shah Law Chambers) for the Claimant
Ms Sarah Palin (instructed by Taylor Rose MW) for the 1 st, 4 th, 10 th–13 th and 15 th–24 th Defendants
The remaining Defendants did not appear and were not represented
Hearing date: 30 th June 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 12pm on 1 August 2022
THE HONOURABLE Mrs Justice Collins Rice
Introduction
The Claimant, Mr Tewari, was employed by an unincorporated charitable organisation (Vishwa Hindu Parishad: VHP) as a Hindu priest at a temple in Ilford. He was dismissed from his post in November 2020 and is claiming against VHP's board of trustees in the Employment Tribunal.
He brings a further claim in the High Court, for defamation, breach of confidence, misuse of private information and data protection, because of a statement published on 21 st November 2020 to subscribers to the temple's e-newsletter, purporting to explain why he was dismissed.
The defamation etc claim is against 24 individual named Defendants connected with VHP. The 1 st, 4 th, 10 th–13 th and 15 th–24 th Defendants are represented in these proceedings by solicitors Taylor Rose MW and known as the Taylor Rose Defendants or TRDs. The TRDs are the trustees of VHP UK, together with some members of the executive committee of the Ilford branch of VHP. The remaining Defendants are not legally represented.
The defamation claim was issued on 22 nd November 2021. Although the point had been disputed, Ms Addy of Counsel – very recently instructed by Mr Tewari – entirely properly accepted before me that this was one day outside the limitation period for bringing defamation actions. She was right to do so.
I had before me two applications. Mr Tewari asked me to exercise my discretion to disapply the limitation period. The TRDs asked for summary judgment in their favour on grounds of limitation, or, alternatively, to strike out the claim as disclosing no reasonable grounds for bringing it and/or as being an abuse of the court's process.
Legal Framework
(i) Limitation
The Limitation Act 1980 makes special provision for defamation actions. By section 4A, they must be brought within one year, a shorter period of time than for the generality of torts.
By section 32A, however:
(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.
This provision therefore gives the Court a structured discretion to disapply the one-year statute-bar where it would be equitable to do so. Further guidance on the correct approach to the exercise of that discretion has been provided by the Court of Appeal in Bewry v Reed Elsevier UK Ltd [2015] 1 WLR 2565 at [5]–[8] as follows:
5. The discretion to disapply is a wide one, and is largely unfettered: see Steedman v BBC [2001] EWCA Civ 1534; [2002] EMLR 17 at 15. However 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.
6. Steedman was the first case in which the Court of Appeal had to consider the manner in which a judge exercised his discretion pursuant to section 32A of the Limitation Act 1980. Brooke LJ said at para 41 that:
“it would be quite wrong to read into section 32A words that are not there. However, the very strong policy considerations underlying modern defamation practice, which are now powerfully underlined by the terms of the new Pre-action Protocol for Defamation, tend to influence an interpretation of section 32A which entitles the court to take into account all the considerations set out in this judgment when it has regard to all the circumstances of the case…”
7. The Pre-action Protocol for Defamation says now, as it said then, at para 1.4, that “there are important features which distinguish defamation claims from other areas of civil litigation. … In particular, time is always ‘of the essence’ in defamation claims; the limitation period is (uniquely) only one year and almost invariably a claimant will be seeking an immediate correction and/or apology as part of the process of restoring his/her reputation.” …
8. The onus is on the claimant to make out a case for disapplication: per Hale LJ in Steedman at para 33. Unexplained or inadequately explained delay deprives the court of the material it needs to determine the reasons for the delay and to arrive at a conclusion that is fair to both sides in the litigation. A claimant who does not “get on with it” and provides vague and unsatisfactory evidence to explain his or her delay, or “place[s] as little information before the court when inviting a section 32A discretion to be exercised in their favour … should not be surprised if the court is unwilling to find that it is equitable to grant them their request.” per Brooke LJ in Steedman at para 45.
(ii) Terminating Rulings
By Civil Procedure Rule 3.4(2):
The court may strike out a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.
A court will strike out a claim under the first subparagraph if it is ‘certain’ that it is bound to fail, for example because pleadings set out no coherent statement of facts, or where the facts set out could not, even if true, amount in law to a cause of action. That calls for an analysis of the pleadings without reference to evidence; the primary facts alleged are assumed to be true. It also requires a court to consider whether any defects in the pleadings are capable of being cured by amendment and if so whether an opportunity should be given to do so ( HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] 4 WLR 35 at [11]; Collins Stewart v Financial Times [2005] EMLR 5 at [24]; Richards v Hughes [2004] PKLR 35).
Pleadings may be struck out under the second subparagraph as an abuse of process if their effect is reduplicative of other litigation, or where ' no real or substantial wrong has been committed and litigating the claim will yield no tangible or legitimate benefit to the claimant proportionate to the likely costs and use of court procedure (see Nicklin J in Tinkler v Ferguson [2020] 4 WLR 89; Dow Jones v Jameel [2005] QB 946, discussed further below).
By Civil Procedure Rule 24.2:
The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.
The proper approach of a court on an application for summary judgment was summarised in Easyair v Opal [2009] EWHC 339 (Ch) at [15] as follows:
i) The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success;
ii) A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable;
iii) In reaching its conclusion the court must not conduct a...
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