Nicole Daedone v British Broadcasting Corporation
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pepperall |
| Judgment Date | 26 January 2023 |
| Neutral Citation | [2023] EWHC 106 (KB) |
| Docket Number | Case No. QB-2021-004135 |
| Court | King's Bench Division |
[2023] EWHC 106 (KB)
THE HONOURABLE Mr Justice Pepperall
Case No. QB-2021-004135
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice, Strand, London WC2A 2LL
Sara Mansoori KC and Zoe McCallum (instructed by Mishcon de Reya) for the Claimants
Catrin Evans KC and Ben Gallop (instructed by BBC Litigation Department) for the Defendant
Hearing date: 7 July 2022
Judgment No. 1
Approved Judgment
This judgment was handed down remotely at 1pm on 26 January 2023 by circulation to the parties and by release to the National Archives.
Between 10 November and 16 December 2020, the BBC published an introductory episode and ten full-length episodes of a podcast entitled “The Orgasm Cult.” The series focused on the activities of OneTaste Inc. and its co-founder and former Chief Executive Officer, Nicole Daedone, in promoting and selling classes and programmes dedicated to the art of “Orgasmic Meditation.” By this action, it is alleged that the podcast was defamatory in that it suggested that Ms Daedone, Rachel Cherwitz and OneTaste controlled a destructive sex cult which, under the false pretence of being a wellness organisation promoting empowerment for modern women, deliberately manipulated and exploited vulnerable women causing them lifelong trauma for the purpose of making themselves wealthy. It is alleged that the podcast was defamatory in that it suggested that Ms Daedone, Ms Cherwitz and OneTaste bore responsibility for serious criminal acts including the repeated rape of a vulnerable woman, sex trafficking, and facilitating and benefiting from prostitution and violations of labour law. Further, it is said to be defamatory in asserting that allegations published by Bloomberg in 2018 were true.
On 9 November 2021, the claim form was issued in the sole names of the Institute of OM LLC and OM IP Co. Such claim was issued within the one-year limitation period prescribed by s.4A of the Limitation Act 1980 for libel claims.
On 4 March 2022, the claimants' solicitors, Mishcon de Reya, filed an amended claim form adding Ms Daedone and Ms Cherwitz as additional claimants. Further, the amendment added claims under s.12 of the Defamation Act 2013 (that the BBC should be required to publish a summary of the judgment in these proceedings); by Ms Daedone and Ms Cherwitz for alleged breaches of the General Data Protection Regulation 2016/679/EU, the Data Protection, Privacy & Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 and the Data Protection Act 2018; and by Ms Daedone and Ms Cherwitz for alleged misuse of private information. This amended claim form was not served.
On 7 March 2022, Mishcon de Reya filed a re-amended claim form seeking also to add OneTaste as a further claimant and making other modest re-amendments. The re-amended claim form was served under cover of a letter dated 9 March 2022.
By an application notice dated 24 March 2022, the BBC seeks an order disallowing the amendments on the grounds that the libel claims now pursued by Ms Daedone, Ms Cherwitz and OneTaste are statute barred. By a cross-application dated 14 April 2022, the claimants seek a direction pursuant to s.32A of the Limitation Act 1980 disapplying the time limit in s.4A.
I was provided with open and confidential bundles in respect of this hearing but asked not to read the confidential bundle pending further argument. In the event, it was agreed that there was no need for the court to consider the contents of the confidential bundle and I have not done so.
THE LEGAL PRINCIPLES
Section 4A of the Limitation Act 1980 provides that no action in libel shall be brought after the expiration of one year from the date when the cause of action accrued. The harshness of the one-year period is mitigated by s.32A of the Limitation Act 1980 which 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 …”
New claims in pending actions are dealt with by s.35 of the Limitation Act 1980. The relevant parts of the section provide:
“(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced—
(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and
(b) in the case of any other new claim, on the same date as the original action.
(2) In this section a new claim means any claim by way of set-off or counterclaim and any claim involving either—
(a) the addition or substitution of a new cause of action; or
(b) the addition or substitution of a new party …
(3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor the county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim …
(4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.
(5) The conditions referred to in subsection (4) above are the following—
(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and
(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.
(6) The addition or substitution of a new party shall not be regarded for the purposes of subsection (5)(b) above as necessary for the determination of the original action unless either—
(a) the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party's name; or
(b) any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action.”
Thus:
9.1 The amended and re-amended claim forms in this case pleaded “new claims” of libel within the meaning of s.35 since they added additional claimants: s.35(2)(b), Limitation Act 1980.
9.2 Such new claims were deemed to amount to a separate action that was commenced on 9 November 2021: s.35(1)(b).
9.3 The original claimants were entitled to amend the claim form at any time before service: r.17.1(1), Civil Procedure Rules 1998.
9.4 By r.17.2, the court may, however, disallow an amendment made where permission of the court was not required. Once an application is made under the rule in a case where the amendment is made after the expiry of a relevant limitation period, it is for the claimants to establish their entitlement to bring the new claim, whether pursuant to rules 17. 4 or 19.5 or, in the context of a defamation claim, by obtaining a direction pursuant to s.32A disapplying s.4A of the 1980 Act: Qatar Airways Group QCSC v. Middle East News [2020] EWHC 2975 (QB), at [241], Saini J.
9.5 There is no suggestion in this case that the new parties were added to correct a mistake in the names of the original claimants. Accordingly, the amendments were not within s.35(6)(a), r.17.4(3) or r.19.5(3).
9.6 Equally, there is no suggestion that the new parties were added because the original claim could not be maintained by the existing claimants without the joinder of the new parties. Accordingly, the amendments were not within s.35(6)(b) or r.19.5(3)(b).
9.7 The new claims were statute barred at the time of service of the re-amended claim form and should be disallowed unless the court exercises its discretion pursuant to s.32A of the Act: see s.35(3) read together with s.32A.
It is therefore common ground that the court should first consider the claimants' application pursuant to s.32A to disapply s.4A of the Act. Should the court exercise its discretion in favour of the claimants then the BBC's application to disallow the amendments falls away. Conversely, if the court does not disapply s.4A, then the claimants concede that the new libel claims must be disallowed.
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