Apsion v Butler

Defamation and malicious-falsehood claims issued outside the one-year limitation period may proceed only if the claimant has a real prospect of establishing deliberate concealment under section 32 of the Limitation Act 1980, or if extending time is equitable under section 32A. Knowledge of facts sufficient to formulate the cause of action is enough; knowledge of every item of evidence is unnecessary. Statements prepared for use in judicial or quasi-judicial proceedings are protected by absolute privilege where they are sufficiently connected with those proceedings. A claim which seeks to undermine a final decision of a competent tribunal by suing a witness may be an abuse as a collateral attack. A residual claim may also be struck out under the Jameel abuse jurisdiction where no substantial tort or practical remedy remains.

The defendant applied for summary judgment in a libel and malicious-falsehood claim concerning a witness statement prepared in connection with a professional-negligence complaint and disciplinary proceedings against the claimant. The claimant also sought disclosure and summary judgment.

The defendant relied independently on limitation, absolute privilege or immunity from suit, collateral attack on the decisions of the Council of the Inns of Court Disciplinary Tribunal and the Visitors to Lincoln’s Inn, and abuse of process because no substantial tort remained. The central questions were whether the claims were time-barred, whether section 32 or section 32A of the Limitation Act 1980 assisted the claimant, and whether the proceedings were otherwise abusive.

1. Summary judgment. The defendant obtained summary judgment on the claimant’s claim. The claimant’s applications for disclosure and summary judgment were without merit.
2. Limitation. Each pleaded publication occurred more than one year before proceedings were issued. The claimant knew the relevant facts, including the contents of the statement and the alleged omission concerning the Part 36 offer, by January 2007 at the latest. Section 32 did not assist: there was no arguable deliberate concealment, and the defendant was under no duty to include the offer in a statement addressing the claimant’s competence. In any event, the claimant knew enough to formulate both claims well before the proceedings were commenced (paras [35]–[59]).
3. The position was separately considered for malicious falsehood because malice forms part of that cause of action. Even on that basis, the alleged concealment had been discovered by January 2007, when the claimant received material referring expressly to the offer (paras [54]–[59]).
4. Section 32A could be determined on the application. The delay was substantial in the context of defamation, the claimant knew the relevant facts long before issuing proceedings, relevant evidence would be less cogent because of the delay, the underlying claims were extremely weak, and the defendant would suffer prejudice. It was not equitable to disapply the one-year limitation period (paras [60]–[71]).
5. Privilege. Evidence given to judicial tribunals, and statements practically necessary for the interests of justice in such proceedings, attract absolute privilege. The same protection applied to the Council of the Inns of Court disciplinary process and its tribunals, and a fortiori to the Visitors. The statement had been prepared for use in evidence in disciplinary and related proceedings. The reasoning in Darker v Chief Constable of West Midlands Police did not remove the immunity, since that case distinguished the preparation of evidence from acts of fabrication or destruction of evidence (paras [72]–[94]).
6. Abuse. The proceedings were in substance an attempt to challenge disciplinary findings by attacking the evidence of a witness. The claimant had had a full opportunity to contest the evidence, including by cross-examination, and allowing the claim would require substantial relitigation and risk bringing the administration of justice into disrepute. The collateral-attack and collateral-purpose principles therefore independently supported abuse of process (paras [95]–[113]).
7. Alternatively, any residual claim would be a Jameel abuse because of its complexity, the absence of a proper basis for injunctive relief, and the defendant’s undertaking not to repeat the words complained of (paras [114]–[117]). The defendant was awarded costs, including indemnity costs from 25 May 2010, and an interim payment of £25,000 on account (paras [121]–[122]).