Sarayiah v Suren & Anor

In defamation proceedings, the statutory test for adding a new defendant after expiry of the limitation period is necessity, not desirability. A claimant’s wish to improve recovery prospects or obtain additional injunctions does not ordinarily make joinder necessary where the claim can proceed against existing defendants. The court may review an ex parte joinder order under the procedural rules governing orders made without notice, particularly where the required notice and documents were not served. Discretionary extension of the defamation limitation period requires a balance between prejudice to claimant and defendant, with particular attention to delay, evidence, the strength of the claim and the vindication actually achievable. Payment into court should not be imposed as a penalty for procedural default absent repeated breaches or want of good faith.

The claimant brought a slander action concerning allegations that he had harassed and stalked the first defendant. The proceedings were later extended to include the third, fourth and fifth defendants. Those defendants applied to vary the joinder order, relying on limitation, the absence of necessity, procedural non-compliance and the court’s jurisdiction to review an order made without notice.

The third defendant separately applied to set aside judgment in default. The claimant sought a discretionary direction under section 32A of the Limitation Act 1980 and an order requiring the third defendant to pay money into court. The central issues were whether the default judgment should be set aside, whether joinder was necessary, whether limitation should be disapplied, and whether procedural failures justified security.

1. Default judgment. Judgment in default against the third defendant was set aside. He had a real prospect of defending the republication claim because the pleading did not clearly address the test in McManus v Beckham [2002] EWCA Civ 939. He also had a real prospect of establishing qualified privilege. The later conviction for harassment gave him a further arguable justification defence, although the court did not determine the merits.
2. Review of joinder. The High Court had jurisdiction to review the ex parte joinder order. CPR 23.9 and 23.10 were the more specific provisions, and the failure to serve the application notice, supporting evidence and required statement justified extending time. The provisional nature of ex parte orders was explained by WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721.
3. Necessity. CPR 19.5 required necessity because the limitation period had expired. The claimant’s prospects of recovery against several defendants, and his wish for injunctions against them, did not show that the claim could not properly proceed against the original defendants. Defamation proceedings could continue against fewer defendants, and the principal vindication sought could be obtained, if at all, against the first defendant. The joinder order was therefore varied and the new defendants were removed.
4. Limitation. The court declined to disapply section 4A under section 32A of the Limitation Act 1980. The additional defendants would add little to vindication, the claim against the third defendant appeared particularly weak, and the defendants faced substantial prejudice. Even assuming the claimant’s explanation for delay, it was not equitable to allow the claims to proceed. The principles in Steedman v British Broadcasting Corporation [2001] EWCA Civ 1534 were treated as generally applicable.
5. Payment into court. The claimant’s application was refused. The third defendant had a good prospect of defending the claim, there was no want of good faith, and the alleged defaults did not amount to the repeated procedural breaches required for such an order.

The judgment records that Roderick Evans J had allowed an earlier appeal and ordered joinder of the third to fifth defendants. This court reviewed and varied that order. It also records an earlier order of Gray J dismissing the claimant’s application for an injunction against the third defendant; permission to appeal from that order remained pending.