Hassan v Holburn & Ors

For defamation claims, the primary one-year limitation period runs afresh from each publication, but retaining a document on a confidential file does not establish republication. Deliberate concealment requires an act suppressing disclosure of material the claimant would otherwise have learned. A court may extend time only where equitable, weighing knowledge, delay and evidential prejudice. Section 35 of the Limitation Act 1980 supports adding a cause arising from facts already in issue, but does not operate automatically. The court must exercise judgment. Late delivery of a complex skeleton argument may justify an adjournment and an order for costs thrown away.

Dr Hassan brought claims arising from unfavourable professional references. He claimed breach of his employment contract against the NHS trust and defamation and malicious falsehood against the two consultants, with a vicarious claim against the trust.

Mitting J struck out the defamation claim on limitation grounds and held that the contract claim was viable only against the trust. Poole J had adjourned an earlier hearing because of late service of argument and documents and ordered Dr Hassan to pay the costs thrown away. The Court of Appeal considered two applications for permission to appeal, concerning the costs order and the limitation decisions, including republication, deliberate concealment, discretionary extension of time and the use of section 35.

Both applications for permission to appeal were dismissed. Neither had a realistic prospect of success.

1. Adjournment and costs. Poole J was entitled to adjourn the strike-out hearing. The late delivery of a complex skeleton argument and supporting documents made adequate preparation impracticable for the defendants and probably the judge, particularly within the reduced time allocation. The resulting costs were properly treated as costs thrown away because the adjournment resulted from non-compliance with directions.
2. Limitation and republication. The single-publication argument was misconceived and did not raise jurisdiction. Each publication of a libel creates a fresh cause of action and starts time running again. Under section 4 A of the Limitation Act 1980, the claim was time-barred because no publication within the relevant one-year period was shown. The mere retention of references on the General Medical Council’s file did not justify an inference of republication. The claimant’s explanation of a fax header was speculative and incapable of supporting such a finding.
3. Deliberate concealment. A preliminary limitation issue is for the judge, not the jury. Deliberate concealment requires an act of obliquity suppressing disclosure of material which the claimant would otherwise have learned. Proper record-keeping by the General Medical Council was insufficient. In any event, the finding that Dr Hassan knew the gist and terms of the references by 2000 prevented concealment from continuing.
4. Discretionary extension. The refusal under section 32A was justified by the claimant’s early knowledge and the substantial loss of evidential cogency caused by delay. The court did not need finally to decide whether conduct in a separate action fell within all the circumstances, since the conventional reasons independently supported refusal.
5. Section 35. The policy described in Lloyds Bank v Rogers [1996] EWCA Civ 1277 permits reliance on a cause of action substantially arising from facts already to be litigated. That policy is not automatic. Section 35 requires judicial judgment, as reflected in rule 14.4(2) of the Civil Procedure Rules. The contract claim against the first and second defendants was not viable, while the defamation claim against all defendants would introduce a separate malice issue relevant to qualified privilege.

• Court of Appeal (Civil Division): On 9 June 2004, the court treated the challenge to Poole J’s costs order as a renewed application for permission to appeal and dismissed both applications.
• High Court, Birmingham District Registry: Poole J adjourned the earlier hearing and ordered costs thrown away. Mitting J subsequently struck out the defamation claim on limitation grounds and held that the contract claim was viable only against the NHS trust. Poole J’s refusal of permission to appeal against an earlier district judge’s costs order was treated as final.