Mr Tariq Alsaifi v Npower Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 03 March 2020 |
| Neutral Citation | [2020] EWHC 480 (QB) |
| Court | Queen's Bench Division |
| Date | 03 March 2020 |
| Docket Number | Case No: QB-2019-002868 |
[2020] EWHC 480 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Steyn DBE
Case No: QB-2019-002868
The Claimant appeared in person
Rupert Beloff (instructed by Npower Legal Department) for the First, Second and Third Defendants
Hearing date: 10 February 2020
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.
THE HONOURABLE Mrs Justice Steyn DBE
A. Introduction
The claimant, Mr Alsaifi, is a former employee of the first defendant, Npower Limited. The second and third defendants, Ms Land and Mr Banks, were employees of the first defendant. Mr Alsaifi has brought a claim in defamation, negligence and for a data protection breach (or breaches).
This judgment addresses three applications, namely:
i) The claimant's application for an extension of time to file his Particulars of Claim and for relief from any sanctions under CPR 3.8;
ii) The claimant's application for a determination of the meaning of the words complained and whether it raises an inference of serious harm within s.1(1) of the Defamation Act 2013; and
iii) The defendants' application for summary judgment on the defamation claim, pursuant to section 8 of the Defamation Act 1996 and for summary judgment and/or strike out of the negligence and data protection claims pursuant to CPR 3.4(2)(a), (b) or (c) and CPR 24.2(a)(i) or (b).
I shall consider the defendants' application first as they seek the summary disposal of the entire claim which would, if successful, render the claimant's applications academic.
B. The facts and procedural history
Mr Alsaifi was employed as a data analyst by the first defendant from 23 April 2018, following a telephone interview on 19 January 2018 and an interview in-person on 31 January 2018. He was dismissed on 24 July 2018 on the ground that, in applying for the position, he submitted a curriculum vitae (CV) which, it was said, was misleading about his employment history and because, it was said, the reference declaration had been incorrectly completed.
An issue was first raised with Mr Alsaifi regarding his CV and references by his line manager, Ms Land, on 7 June 2018. Shortly thereafter, Ms Land asked her line-manager, Mr Banks, to investigate. On 10 July 2018, Ms Land provided Mr Alsaifi with a letter explaining the outcome of the investigation and asking him to attend a disciplinary hearing on 19 July 2018.
It was following the hearing on 19 July 2018 (at which Mr Alsaifi, Ms Land and a note-taker were present) that Ms Land sent the letter of 24 July 2018 which is central to the claim (“the dismissal letter”). In the dismissal letter, Ms Land stated that Mr Alsaifi was dismissed for gross misconduct, stated her reasons and informed him that he had an internal right of appeal.
Mr Alsaifi appealed, submitting a statement dated 29 July 2018 in response to the dismissal letter. The appeal hearing was held on 2 August 2018. Mr Alsaifi, Brian Queen and a note-taker were present. On 13 August 2018, Mr Queen wrote to Mr Alsaifi, notifying him that the appeal was dismissed.
Mr Alsaifi sent a letter of claim to the first defendant on 11 December 2018 and then to Ms Land and Mr Banks on 18 December 2018.
Mr Alsaifi issued the claim on 12 August 2019. He served the claim form on the defendants on 11 December 2019. In accordance with CPR 7.4(2), the particulars of claim were required to be filed by no later than the latest time for serving the claim form i.e. by midnight on 13 December 2019. The defendants agreed to extend time by 14 days, giving Mr Alsaifi until 27 December 2019 to serve his particulars of claim. On Friday 27 December 2019 Mr Alsaifi asked the defendants to agree a further extension of one working day, to Monday 30 December 2019. The defendants informed Mr Alsaifi he would need to apply to the court for an extension and he filed such an application the same day.
The claimant's application for meaning to be determined was filed on 7 January 2020.
The defendants filed and served their summary judgment/strike out application on 10 January 2020 and their defence on 23 January 2020.
On 10 January 2020 the claimant's applications were listed to be heard on 10 February 2020 and, on 22 January 2020, Master McCloud made an order releasing the defendants' application to be heard at the same time, subject to the Court's permission and time allowing.
C. The defamation claim
Limitation
Section 4A of the Limitation Act 1980 provides that no action for libel “ shall be brought after the expiration of one year from the date on which the cause of action accrued”. It is well established that, in the case of libel, the cause of action accrues on the date of publication: Gatley on Libel and Slander (12 th ed.), paragraph 19.13; Duncan and Neill on Defamation (4 th ed.), paragraph 24.01.
In this case, the defendants submit that there has not been any publication – and none is pleaded – but if there has been it took place before 13 August 2018 and so the claim was issued out of time.
Paragraph 6 of the particulars of claim states:
“In a letter dated 24 July 2018, written and signed by D2, emailed to C on the same day and posted to C on the following day, approved and adopted by D1, D2 wrote and published the following words which are severe (sic) defamatory of C…”
The dismissal letter is quoted in full and then paragraph 6 continues:
“…The letter was confirmed (and adopted) by the D's appeal process outcome letter dated 13 August 2019…”
I shall address the question whether Mr Alsaifi has pleaded publication in the next section. At this stage, it suffices to note that insofar as it is suggested that the dismissal letter came to the attention of anyone, it did so by means of (and certainly no later than) the internal appeal process. It is evident that Mr Queen must have seen the dismissal letter by the time of the hearing on 2 August 2019 and probably a day or a few days earlier when he would have received the claimant's appeal documents.
In oral argument, Mr Alsaifi did not take issue with the defendants' submission that publication occurred (if it occurred at all) about 10–14 days before 13 August 2018. His submission was that the cause of action accrued on the 13 August 2018 because that was the date on which his dismissal was confirmed and so, he contended, it was then that he sustained serious harm within the meaning of s.1(1) of the Defamation Act 2013.
As I have said, the cause of action in libel accrues on the date of publication. That has not been altered by the Defamation Act 2013. A statement is defamatory in accordance with s.1(1) if its publication “ has caused or is likely to cause serious harm to the reputation of the claimant” (emphasis added). Moreover, if confirmation were needed that (subject to a tighter time limit where the cause of action relates to a subsequent publication) the cause of action accrues on the date of publication, it is provided by s.8(3) of the Defamation Act 2013.
The defamation claim was not brought within the limitation period provided by s.4A of the Limitation Act 1980.
Mr Alsaifi has not made a formal application, supported by evidence, seeking the disapplication of s.4A, but he submitted in oral argument that if he was wrong about the date on which his cause of action accrued, then he would ask the court to extend time. Accordingly, I shall consider whether to disapply s.4A pursuant to s.32A of the Limitation 1980.
Section 32A of the Limitation Act 1980 provides:
“(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 proper approach to the application of s.32A was explained by the Court of Appeal in Bewry v Reed Elsevier UK Ltd [2015] 1 WLR 2565 by Sharp LJ (with whom Lewison and Macur LJJ agreed) at [5] to [8]:
“5. The discretion to disapply is a wide one, and is largely unfettered: see Steedman v British Broadcasting Corpn [2002] EMLR 318, para 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...
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Yvonne Ameyaw v Christina McGoldrick
...of Bewry v Reed Elsevier UK Ltd [2014] EWCA Civ 1411 [2015] 1 WLR 2565, most recently applied by Steyn J in Alsaifi v Npower [2020] EWHC 480 (QB). 94 The claimant has filed no evidence or argument in support of this aspect of her claim. Applying the well-established principles to which I ......