Brady v Norman

The discretion to disapply the one-year limitation period for defamation and malicious falsehood claims is broad. The court must assess all the circumstances, including the length and reasons for delay, evidential prejudice, the claimant’s continuing need for vindication and the defendant’s loss of the limitation defence.

In defamation proceedings, loss of that defence may itself be relevant prejudice. The court should not automatically apply the approach taken in personal injury litigation, because defamation engages competing Convention rights and freedom of expression. On appeal, the question is whether the first-instance decision involved an error of law or fell outside the range of reasonable conclusions.

Mr Brady sought permission to bring defamation proceedings concerning words spoken by Mr Norman at an ASLEF assembly on 5 June 2006. The proposed claim was issued outside the one-year limitation period. Mr Brady said that he had not acquired actual knowledge of the precise words until September 2008, after they were disclosed in earlier libel proceedings, and explained the subsequent delay by his limited funds and difficulty securing representation.

Master Leslie declined to disapply the limitation period under section 32A of the Limitation Act 1980. The central issues on appeal were whether he had erred by treating loss of the limitation defence as relevant prejudice and whether his assessment of the competing prejudice and vindication considerations was outside the permissible range.

1. Appeal dismissed. The Master was entitled to refuse relief under section 32A of the Limitation Act 1980. His decision fell within the range of reasonable options open to him.
2. The jurisdiction under section 32A is largely unfettered. The court must balance the prejudice to claimant and defendant and consider all the circumstances, particularly the length and reasons for delay and the effect of the passage of time on the availability and cogency of evidence. The claimant’s potential loss of an opportunity to vindicate reputation is a principal consideration.
3. Loss of a limitation defence may itself be relevant prejudice in a defamation case. The approach in Cain v Francis [2009] 2 All ER 579, concerning personal injury proceedings, did not require the Master to disregard that factor. Defamation engages the competing Convention rights protected by Articles 8 and 10, and being sued may itself constitute a serious interference with freedom of expression, as explained in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 and Lonzim Plc v Sprague [2009] EWHC 2838 (QB).
4. The policy considerations supporting the short defamation limitation period, including the fading of memories and loss of records, should not be discounted merely because a personal injury case gave greater weight to different considerations. The fact that the claim concerned slander rather than media publication did not require those considerations to be ignored.
5. It was legitimate to consider whether Mr Brady had any continuing need for further vindication, given the earlier employment tribunal and libel proceedings, and to weigh that against Mr Norman’s loss of the limitation defence and the prospect of renewed litigation years after the dismissal. The arguments based on procedural finality and abuse of process attracted little weight because the proposed slander claim could not reasonably have been added to the earlier action shortly before trial.
6. On an appeal by way of review, the appellate court should not substitute its own assessment merely because another conclusion might have been possible. No error of law or conclusion outside the range of reasonable decisions was shown.

• High Court (Queen’s Bench Division): Master Leslie refused to disapply the limitation period on 12 November 2009. The High Court dismissed the appeal and upheld that exercise of discretion.