Khalil v Barakat & Anor

The discretion to extend the one-year limitation period for defamation and malicious falsehood requires a balancing of the claimant’s benefit in pursuing the claim against the prejudice and expenditure involved. The court should examine closely whether there is a real and sufficient need for vindication or other tangible advantage. Limited publication, the availability of authoritative vindication by other means, the inability of an English order to correct foreign proceedings, and the absence of recoverable damages may justify refusing an extension. Serious or dishonest conduct by the defendant does not, by itself, warrant prolonging otherwise abusive or unmeritorious litigation.

The claimant brought libel and malicious falsehood claims concerning an allegedly forged medical report stating that she was not a virgin when she married. The report had principally been published in Syrian divorce proceedings in 2009, but the claims were not issued until March 2011.

The first defendant applied to strike out the claims, relying principally on expiry of the limitation period. The court had to decide whether it was equitable to extend time under section 32A of the Limitation Act 1980 and whether the claims disclosed any sufficient basis for proceeding. The court also considered the position of the second defendant.

1. Limitation discretion. The court declined to extend the one-year limitation period applicable to defamation and malicious falsehood. The discretion under section 32A of the Limitation Act 1980 required all the circumstances to be weighed, particularly the claimant’s advantage in disapplying the limitation rule against prejudice and the further use of the court’s resources.
2. Need for vindication. The court applied the abuse of process considerations identified in Jameel v Dow Jones & Co Inc [2005] QB 946 and the later authorities cited. It was necessary to scrutinise whether the claimant had any real, tangible or legitimate advantage to gain. Publication was very limited, and any reputational damage and likely damages were modest.
3. The claimant could obtain authoritative vindication from the General Medical Council findings that the report had been forged. An English judgment could not correct the Syrian court file. Communications in the Syrian divorce proceedings might attract absolute privilege, and publication to alleged family or embassy recipients was insufficiently particularised or practically capable of proof. The defendant’s alleged wrongdoing did not itself justify extending time.
4. The allegation of unchastity was not necessarily defamatory without pleaded extrinsic facts establishing an innuendo. Any such claim would require clarity as to the publishees and the facts known to them. This issue did not alter the limitation decision.
5. The libel and malicious falsehood claims were struck out. There was no proper basis for making the second defendant vicariously liable, since the first defendant’s alleged conduct concerned his personal affairs and was not undertaken in the course of professional activities or employment.

First-instance decision. No appellate history is stated in the judgment.