Gregory v Benham

In defamation and malicious falsehood claims, the court must strictly supervise compliance with procedural time limits, particularly where delay would extend the practical benefit of the limitation period. A claimant’s risk of losing the claim is not, without more, a sufficient reason to grant an indulgence for late service. On appeal, the court should not interfere with a discretionary case-management decision unless the decision was legally or factually flawed, or fell outside the generous ambit within which reasonable disagreement is possible.

The claimant complained of emails sent by the defendant and issued proceedings in time. He failed to comply with the pre-action protocol, failed to include required claim details, and served the particulars of claim nearly two months late. Master Leslie refused a retrospective extension of time and struck out the claim.

The claimant appealed, alleging errors of fact, law and discretion. The central issues were whether the Master misunderstood the limitation position, wrongly treated himself as bound to strike out the claim, or otherwise exercised his discretion impermissibly.

1. Appeal dismissed. The Master’s order striking out the claim was upheld.
2. The appellate court’s task was governed by CPR 52.11(3)(a). The Master’s decision would justify appellate intervention only if he had erred in fact or law, or had acted outside the generous ambit within which reasonable disagreement was possible, as stated in G v G [1985] 1 WLR 647.
3. The Master’s mistaken dates did not materially vitiate his exercise of discretion. The proceedings had been issued within the limitation period, and the particulars were approximately two months late rather than three. Those inaccuracies did not alter the substance of the decision.
4. The Master had not wrongly concluded that he was bound by authority to strike out the claim. His reference to authority was understood as recognising the need for expedition in defamation claims, rather than removing the court’s discretion.
5. The relevant failures were substantial: non-compliance with the pre-action protocol, omission of the required claim details under Practice Direction 53, para 2.2(1), and late service of the particulars. The claimant had no adequate explanation for the delay.
6. Following the reasoning of Rix LJ in Aktas v Adepta [2010] EWCA Civ 1170, the period between issue and service must be strictly regulated. The possibility that late service would cause the claim to become time-barred was a barren excuse and did not justify extending time.
7. Even on a fresh exercise of discretion, the court would refuse the extension. The claimant had possessed the necessary information since March 2010, yet did not formulate and serve the particulars until July 2011. The Master had therefore made no material error and had exercised his discretion correctly.

• High Court (Queen’s Bench Division): Master Leslie refused the claimant’s retrospective application for an extension of time on 16 November 2011 and struck out the claim. The High Court dismissed the appeal and upheld that decision.
• Permission to appeal: Bean J granted permission on 21 March 2012.