Edwards v Golding & Ors

Where a defendant is added to a defamation claim after the limitation period has expired, the addition generally operates retrospectively and removes any limitation defence. A claimant’s lack of knowledge of the publisher’s identity does not postpone accrual of the cause of action, which ordinarily occurs on publication. The appropriate routes may instead include postponement for deliberate concealment or an application to disapply the limitation period. A joinder order made without jurisdiction, or which defeats the purpose the court intended to achieve through it, may exceptionally be revoked under CPR 3.1(7) and CPR 19.2(3). A default judgment should be set aside where there is a good reason to permit a defence, particularly a limitation defence or a defence on the merits carrying some degree of conviction, despite substantial delay.

This was a libel action arising from words published during a 2002 local-government election. The claimant originally sued two defendants, but the proceedings against the second defendant were discontinued and the first defendant was never served. In September 2005 a Master joined Nicholas Griffin as a third defendant after the claimant stated that he had only recently learned that Griffin was the author.

Griffin later acknowledged service but failed to file a defence, and judgment in default was entered. He applied to set aside both the default judgment and the joinder order. The central issues were whether the claim against him was statute-barred, whether the joinder was made without jurisdiction, whether the joinder could be revoked, and whether the proposed substantive defences justified setting aside the judgment.

1. The joinder order. The cause of action in libel ordinarily accrues on publication. Knowledge of the publisher’s identity is not a constituent of the cause of action. The claimant’s lack of knowledge might engage section 32(1)(b) or section 32A of the Limitation Act 1980, but neither provision had been determined by the Master. The limitation period had therefore expired.
2. CPR 19.5 could not support the addition. The relevant limitation period was no longer current and the stringent necessity requirement was not satisfied. Further, when the order was made, no proceedings remained pending against an active defendant. The joinder was consequently made without jurisdiction.
3. Revocation. CPR 3.1(7) is not ordinarily an alternative appeal route. Following Collier v Williams & Ors [2006] EWCA Civ 20, it generally requires a material change of circumstances or that the earlier court was misled. The present case was exceptional. The Master’s fundamental mistake about the effect of joinder and the absence of jurisdiction meant that the order could be revoked. The same conclusion followed under CPR 19.2(3).
4. Default judgment. CPR 13.3 permits setting aside where there is a real prospect of successfully defending the claim or another good reason, subject to consideration of promptness. The application was very late, but the proceedings had proceeded on a fundamental legal mistake and the claimant suffered no prejudice beyond further delay. There was therefore good reason to set aside the judgment and allow a defence, at least on limitation.
5. The proposed plea of justification was not shadowy or lacking in good faith and carried some degree of conviction. The public interest in proper vindication supported allowing the defendant an opportunity to deploy available defences. The default judgment and the order joining Griffin were set aside. The claimant remained free to apply under section 32A or rely on section 32(1)(b); no view was expressed on the prospects of either application.