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The Clock is Ticking

March 7th, 2016

Clock

Manleys Solicitor James Roochove advises on the time limits for defamation cases.

The time limits for issuing defamation cases are, when compared to the vast majority of other actions, extremely tight. The standard rule is that you have 1 year from the date the cause of action accrued (usually the date of the publication (in libel) or from the date the words were spoken (in slander).

Clearly defamation is very time sensitive. If something has been said or published that has caused, or is likely to cause, serious harm to your reputation the Court will be unimpressed if you decide to unnecessarily dawdle when taking action. If you wait, you will probably face criticism from your opponents in the proceedings. Worst, if you wait too long and fall outside the time limit, your claim is likely to be statute barred, regardless of how strong it is.

The limitation period in libel claims has reduced over time, from 6 years to 3 years in 1984, and then from 3 years to 1 year in 1996. The reduction reflected the general consensus that claims to protect a reputation should be pursued with vigour and without delay.

Section 32A of the Limitation Act 1980 does provide some scope for the Courts to exclude the 1 year time limit, if it appears to the Court that it would be equitable to allow the action to proceed.

Lady Justice Sharp stated in Bewry v Reed Elsevier that "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". She also stated that "the disapplication of the limitation period in libel actions is often described as exceptional", thus underlining that whilst the Court has the power to exclude the 1 year time limit, it rarely will and thus should not be relied upon.

It should also be noted that it is the responsibility of the Claimant to make the case for the disapplication of the limitation period, and this will usually be done once a Defence is received confirming the Defendant takes issue with the timing of the claim.

A recent case has highlighted the need for speed. In Lokhova v Tymula (http://www.bailii.org/ew/cases/EWHC/QB/2016/225.html) defamation proceedings relating to emails sent in September 2011 were issued on 9th November 2012. The Claimant argued that she had only become aware of the emails as part of ongoing employment tribunal proceedings in October 2012. The Defendant’s solicitors raised the argument that the claim was time barred as the Claimant had received the emails during disclosure in March 2012 and that the Claimant needed to make an application to disapply the limitation period.

A stay was agreed by the parties to allow for the conclusion of the employment proceedings, with the defamation proceedings stayed until 4 weeks after the disposal (whether by judgement or a settlement) of the employment tribunal proceedings.

The parties were later to argue whether this meant 4 weeks after the judgment, or 4 weeks after any proposed appeal of the judgement.

Judgment was handed down on 5th March 2015. 4 weeks after this would have been 3rd April 2015, by which time no further action had been taken on the defamation proceedings.

An appeal on the employment proceedings was made on 16th April 2015 withdrawn on 20th October 2015. On 22nd October the Defendant applied to strike out the claim. On 20th November the Claimant made an application to disapply the limitation period.

Mr Justice Dingemans considered the limitation issue in his judgement. He commended the parties on the use of the stay, but stated:

“while there were very sensible reasons for the stay it meant that there became an increased importance to get on with the action once the stay expired”

The Judge agreed with the Defendant that the stay came to an end on 3rd April 2015, and crucially identified that no work was undertaken on the defamation claim (i.e. to make the application to disapply the limitation period) between 3rd April and 16th April when the appeal in the employment proceedings was made. The application was only made on 20th November 2015.

The Judge noted:

Given that the bank did not file a notice of appeal until 16th April 2015 a mistaken understanding about the effect of the agreement of the stay could not have explained the lack of action between 3rd April and 16th April 2015. Nothing was done to progress the libel action until Taylor Wessing wrote their letter dated 30th September 2015”

“There is no evidence to show that the failure to progress the action after 3rd April and before 30th September 2015 was because of a misunderstanding about the effect of the stay. In these circumstances there is an important period of delay after 3rd April at a time when there was a need to get on with an action.”

The Judge did not direct that the usual limitation period should not apply and the claim was struck out.

Whilst a complex matter, this case underlines the need to take action quickly and to not unnecessarily delay matters. If there is any doubt or ambiguity on timescales always work to the nearest possible deadline. If you are seeking to disapply the limitation period, do so without any delay.

Overall, in defamation, perhaps more than any other area of litigation, you have to think and act fast or you could face criticism or, worse,  lose your ability to fight for your reputation in Court.


James Roochove | Solicitor