Edwards v Golding & Ors

In a libel claim, the cause of action accrues on publication. A claimant’s lack of knowledge of the defamatory publication or of the publisher’s identity does not postpone accrual or the running of the one-year limitation period. The appropriate route for a late claim is the discretionary relief under Limitation Act 1980, section 32A.

A party cannot use an invalid joinder to defeat an accrued limitation defence. Although CPR rule 3.1(7) is not an alternative to an appeal, it may correct a fundamental procedural error where an order was made on a mistaken basis and frustrates its intended purpose. A default judgment founded on such joinder should also be set aside.

Edwards v Golding & Ors arose from an article distributed during a municipal election. The claimant brought a libel claim against alleged participants in its publication. He discontinued against one defendant after material suggested that another person, Mr Griffin, might have been responsible, and obtained an order joining Mr Griffin after the ordinary limitation period had expired.

The Master allowed joinder while intending to leave a limitation defence open. Mr Griffin did not initially defend and judgment in default was entered. Tugendhat J set aside both the joinder order and the default judgment. The claimant appealed, contending that the cause of action had not accrued until he knew the publisher’s identity and that CPR rule 3.1(7) could not be used to revoke the Master’s order.

1. Appeal dismissed. Buxton LJ, with whom Wilson and Moses LJJ agreed, upheld Tugendhat J’s order setting aside the joinder of Mr Griffin and the ensuing default judgment.

2. The application to join Mr Griffin to the existing proceedings was misconceived. There was no continuing, active action to which he could properly be joined. In any event, CPR rule 19.5 could not assist because the limitation period had expired when the original proceedings began and Mr Griffin’s addition was not necessary for a present action. By operation of section 35(1)(b) of the Limitation Act 1980, joinder would treat him as a party from the outset and thereby deprive him of an accrued limitation defence.

3. The cause of action in defamation accrued upon publication. That was an objective question and did not depend on the claimant knowing the identity of the publisher or being able to name a defendant. The court distinguished Cressey v Tim [2005] EWCA Civ 763, which concerned the distinct statutory knowledge provisions for personal-injury claims. A claimant seeking to proceed after the one-year period must seek discretionary relief under section 32A of the Limitation Act 1980. The court left open whether section 32(1)(b) could apply to a merely anonymous publication.

4. The court applied the guidance in Collier v Williams and others [2006] EWCA Civ 20. CPR rule 3.1(7) does not permit a dissatisfied party simply to obtain a reconsideration instead of appealing. It can, however, correct a fundamental procedural error where the order was made under a shared mistake and defeated the purpose which the Master intended to achieve. The Master had made an order he had no power to make while mistakenly believing that it preserved the limitation issue.

5. Once the joinder order was set aside, CPR rule 13.3(1)(b) supplied a good and logically unavoidable reason to set aside the default judgment based upon it. The court did not need to consider the other proposed defences.

• Court of Appeal (Civil Division): Appeal dismissed in [2007] EWCA Civ 416.
• High Court, Queen’s Bench Division: Tugendhat J set aside the Master’s order joining Mr Griffin as a defendant and the resulting default judgment.