Bewry v Reed Elseveir (UK) Ltd & Anor

Under section 32A of the Limitation Act 1980, the court may extend the limitation period for defamation where, having regard to all the circumstances, it is equitable to do so. The court must weigh the claimant’s delay and its reasons, the date when relevant facts became known, the claimant’s promptness and reasonableness thereafter, likely evidential prejudice, and the competing prejudice caused by allowing or refusing the extension.

Ignorance of the publication, prompt complaint, bona fide negotiations and the continued availability of documentary evidence may make a case exceptional. The court need not determine the merits of the defamation claim at the limitation stage. A small number of later publications need not be struck out where doing so would serve no practical purpose and would complicate proceedings concerning earlier publications.

The claimant, a professional foster carer, brought a libel claim concerning online reports of earlier judicial review proceedings involving Norfolk County Council. The reports were published by legal and community-care publishers in 2010 and 2011. The claimant discovered them in February 2012, after the ordinary twelve-month limitation period had expired, and issued proceedings in February 2013.

The claimant applied under section 32A of the Limitation Act 1980 to extend time. The defendants applied to strike out the claim in respect of limited publications within the ordinary limitation period on the basis that they disclosed no substantial tort. The claimant also sought summary disposal because no defence had been served.

1. Limitation extension. The claimant’s application under section 32A of the Limitation Act 1980 was granted. The discretion was equitable and largely unfettered, but had to be exercised by considering all the circumstances, including the statutory matters.
2. The delay was substantial, but the claimant was accepted as having been unaware of the publications until about 27 February 2012. He complained immediately after discovery and thereafter pursued bona fide settlement negotiations. His conduct was not prompt in every respect, but it was reasonable and did not amount to gross or excessive delay.
3. The defendants suffered real prejudice from losing a limitation defence. However, much of the evidential prejudice would have existed even if proceedings had been issued within time. The defendants had been put on notice of the complaint, and the subject matter was extensively documented through the earlier litigation, court papers and likely recordings. The claimant’s prejudice in being excluded from the most valuable part of his claim was greater. It was therefore equitable to permit the claim concerning the earlier publications to proceed.
4. The court expressly declined to consider defamatory meaning, possible defences, including fair and accurate report, or damages. No view on those merits was intended.
5. Jameel application. The defendants’ application to strike out the later publications was dismissed. Although the limited number of publications might otherwise have justified striking out the claim as involving no substantial tort, the limitation extension meant that excluding the later publications would achieve little and would unnecessarily complicate the litigation.
6. The claimant’s summary disposal application was adjourned unheard, leaving the defendants a reasonable opportunity to serve a defence.