Reed Elsevier UK Ltd (T/A LexisNexis) and Another v Raymond Russell Bewry (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Lady Justice Macur,Lord Justice Lewison |
| Judgment Date | 30 October 2014 |
| Neutral Citation | [2014] EWCA Civ 1411 |
| Docket Number | Case No: A2/2013/3111 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 October 2014 |
[2014] EWCA Civ 1411
Lord Justice Lewison
Lady Justice Macur
and
Lady Justice Sharp
Case No: A2/2013/3111
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HH Judge Moloney QC sitting as a Judge of the High Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Justin Rushbrooke QC and Yuli Takatsuki (instructed by Aslan Charles Kousetta LLP) for the Appellants
Antony White QC, Diego F. Soto-Miranda and Ben Silverstone (instructed by Bindmans LLP) for the Respondent
Hearing date: 7 July 2014
This is an appeal from a decision of HH Judge Moloney QC of 10 October 2013, granting the claimant's application made pursuant to section 32A of the Limitation Act 1980 to disapply the limitation period in his proceedings for libel and dismissing the defendants' application to strike out the claimant's claim under CPR rule 3.4(2).
Section 4A of the Limitation Act 1980 provides that an action for defamation or malicious falsehood shall not be brought after the expiry of one year from the date on which the cause of action accrued (which in libel claims is the date of publication).
Under the law which applies to this claim, a separate cause of action accrues for each individual publication of a libel, which is then subject to its own limitation period: see Duke of Brunswick v Harmer [1849] 14 QB 185. 1
Section 32A of the Limitation Act 1980 (section 32A) enables the court to disapply section 4A. It 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 he represents,
the court may direct that the 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 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 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.
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:
"whilst it would be wrong to read into section 32A, words that are not there, the 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."
The Pre-action Protocol for Defamation says now, as it said then 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." See Civil Procedure, vol. 1, 2014, paragraph C6–001, para 1.4.
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.
The claimant is a local authority approved foster carer and according to the Particulars of Claim, is the current Chair of the Norfolk Foster Carer Association. The first defendant owns and operates the LexisNexis website, which provides, amongst other things, access to LexisNexis case reports and other legal materials. The second defendant owns and operates the Community Care Inform (CCI) website, a subscription-based online resource for professionals working with children and families.
These libel proceedings are brought in respect of words which were part of a legal case note (the case note) published by the defendants on their respective websites. The case note concerned proceedings for judicial review brought by the claimant in which an ex tempore judgment was given by Holman J. on 6 October 2010 (see R (on the application of Bewry) v Norfolk CC [2010] EWHC 2545 (Admin)). They were brought because the claimant was dissatisfied with the Council's decision to remove two boys he was fostering, from his care. The application succeeded on the ground that the Council had failed to consult the claimant before making the removal decision.
The case note was prepared by the first appellant (LexisNexis) before a transcript of the judgment was available, and placed on their website on 7 October 2010. The case note was only accessible to subscribers. On 10 January 2011 the second appellant (CCI) placed the case note on a part of their website, which was accessible only to subscribers. A short extract from the case note – the words complained of by the claimant in these proceedings – also appeared as an automatically generated "snippet" on 10 January 2011 on a different part of CCI's website which was accessible to the public, though the snippet made clear to subscribers that they would need to subscribe or log on to see the full case report. The claimant saw it there on 27 February 2012 and immediately complained to CCI about it.
The relevant words were these:
"Details of the case
The claimant was a single man who, in February 2006, became an approved foster carer for the defendant Local Authority.
Subsequently he was approved as a level five foster carer, which was the highest possible level.
He had looked after two children RS since 6 March 2009 and SP since 27 May 2009.
In August, the claimant required a respite break and both young men were moved to respite accommodation for two weeks.
From early June, concerns were raised about the claimant's inappropriate behaviour. [underlined by the claimant in the Particulars of Claim]
The defendant local authority began to have concerns regarding the suitability of the claimant to act as a foster carer.
He was emailed in July and asked to co-operate with the Authority, who specifically registered their concern that 'you are refusing to be supervised in caring for the boys'.
Further correspondence was sent by the Authority on 29 July, registering a further concern that the social worker and the claimant had not spoken 'face to face' since 9 June.
The authority appointed a social worker to investigate, however, the claimant refused to co-operate with her."
The meaning attributed to these words in the Particulars of Claim is that the claimant is a paedophile.
After they received the claimant's complaint, on 28 or 29 February 2012 CCI took down the case note and the snippet from their website. In a letter to the claimant of 6 March 2012 CCI confirmed they had taken down this material, and offered to publish a correction (accessible both to subscribers and non subscribers). They provided him with an amended case summary, informed him that the case report had originally been produced by LexisNexis; and provided him with a copy of the case report. It follows from what the claimant was told in this letter, that he had knowledge of all the facts necessary to bring an...
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