Maccaba v Lichtenstein

Applications to disapply the one-year limitation period for defamation under Limitation Act 1980, section 32A, require an equitable assessment of all the circumstances. The court must balance prejudice to claimant and defendant, while considering in particular the length and reasons for delay and any effect on evidence. The power is exceptional because the statutory period serves an important policy. An unexplained delay is relevant but is not automatically decisive. The court should not conduct a mini-trial of the merits where that would be disproportionate or unfair. Disapplication may be appropriate where the defendant must in any event address the same facts in related claims, the delay has caused no evidential difficulty, and excluding the time-barred allegations would create substantial artificiality at trial.

The claimant brought proceedings in slander, harassment and breach of confidence against the defendant. Nine slanders were pleaded. Two were allegedly published on 12 January and 13 February 2001, more than one year before the claim form was issued on 19 February 2002; the remaining seven were brought within time.

The claimant applied under section 32A of the Limitation Act 1980 to disapply the one-year limitation period for the two late slanders. The central issues were whether the delay and absence of an explanation should defeat the application, and whether the competing prejudice and trial consequences made it equitable to permit those claims to proceed.

1. Application granted. The one-year limitation period was disapplied in relation to the two specified slander claims.
2. Section 32A requires the court to ask whether, having regard to all the circumstances, it would be equitable to allow the action or specified causes of action to proceed. The principal consideration is the comparative prejudice caused to claimant and defendant by applying or disapplying the limitation period. The power remains exceptional because otherwise the statutory period and its underlying purpose would be undermined, as recognised in Incs v Channel 4 Television Corporation, Clarkson v Gilbert and Steedman v BBC.
3. The court must consider the statutory factors, including the length and reasons for delay and whether evidence has become unavailable or less cogent. The claimant’s failure to explain the delay was a factor against relief, but it was not determinative. The court could not infer a positive legitimate reason, while the contemporaneous documents disclosed reluctance to resort to secular courts and no sinister explanation.
4. The court should not undertake a mini-trial of contested merits on a limitation application. In this case that would be disproportionate, contrary to the overriding objective and potentially unfair.
5. The defendant’s prejudice was slight. The action would proceed in any event on seven other slanders and related harassment and confidence claims based on overlapping facts. The delay caused no evidential difficulty. Conversely, the claimant faced real prejudice because the two allegations were specific and their exclusion would make the jury trial artificial: the evidence would remain relevant to harassment and damages, but the jury would have to disregard it for defamation damages. On the balance of all the circumstances, the claimant’s prejudice outweighed the defendant’s.