Heard v Kemp

A libel claim issued outside the one-year limitation period remains statute-barred unless a timely republication is properly established or the court extends time under section 32A of the Limitation Act. A third party’s repetition is not itself a republication by the original defendant, and an unpleaded publication cannot support the limitation argument. On appeal, a decision whether to enlarge time may be challenged only where it was not open to the lower judge in law or on the evidence. The court may consider the explanation for delay, prejudice to the defendant and the claim’s prospects. An opinion may be wrong, and opposed to the claimant’s belief, without being malicious.

The claimant brought a libel action concerning Professor Kemp’s written conclusion that an allegation of plagiarism was unfounded. The publication occurred in May 2000, but proceedings were issued in November 2001. The High Court, sitting in the Queen’s Bench Division, held the claim statute-barred and declined to enlarge time under section 32A of the Limitation Act. It also rejected a proposed breach of natural justice claim, which was not pursued on this application.

The claimant relied on alleged later republications and challenged the refusal to extend time. The central issues were whether a timely republication had been shown and whether the High Court’s discretionary decision was open to challenge.

1. Permission to appeal was refused. The action had been rightly struck out as statute-barred.
2. The original publication was in May 2000 and proceedings were not issued until November 2001. The January 2001 letter from the Institute of Education repeated the criticism, but it was not written by Professor Kemp. The suggestion that the repetition was a natural and probable consequence of Professor Kemp’s letter was fanciful. A July 2001 letter from Professor Swanwick was not a republication by Professor Kemp and was too slight to establish repeated republications. The alleged publication to the University of Reading was not part of the pleaded case.
3. Under section 32A of the Limitation Act, an appellate challenge to a decision whether to enlarge time must show that the decision was not open to the judge in law or on reason. The judge found no adequate explanation for the delay. Accordingly, no question of exercising the discretion arose. Even if that conclusion were wrong, the judge was entitled to consider the stress and prejudice that continued litigation would cause Professor Kemp, together with the claim’s very limited prospects of success.
4. As additional observations, the court considered that the words were strongly arguably non-defamatory and, alternatively, an expression of opinion. A bare assertion that the defendant could not have believed the opinion was insufficient evidence of malice. An opinion may be wrong and diametrically opposed to another person’s belief without exceeding good faith or becoming malicious.

1. Court of Appeal (Civil Division), [2002] EWCA Civ 1506 — Lord Justice Sedley refused permission to appeal.
2. High Court, Queen’s Bench Division — His Honour Judge Graham Jones held the libel action statute-barred, declined to enlarge time under section 32A of the Limitation Act, and rejected the breach of natural justice claim.