Reed Elsevier UK Ltd (t/a Lexisnexis) & Anor v Bewry

The discretion under section 32A of the Limitation Act 1980 is wide, but disapplication of the one-year limitation period for libel remains exceptional. A claimant must give persuasive evidence explaining delay and must pursue vindication promptly and vigorously. Ignorance of the limitation period will rarely carry significant weight, save perhaps in a marginal case involving active misleading.

When considering whether a claimant acted promptly and reasonably after knowing the material facts, the court must consider all subsequent conduct, including unexplained delay after proceedings have been issued. If disapplication fails and the only timely publications are minimal, with no meaningful vindication, damages or need for injunctive relief, the claim may be dismissed as a Jameel abuse.

The claimant, a foster carer, sued the operators of the LexisNexis and Community Care Inform websites for libel arising from a case note concerning his earlier judicial-review proceedings, R (on the application of Bewry) v Norfolk CC [2010] EWHC 2545 (Admin). He discovered the publicly accessible online extract in February 2012. The defendants removed it, published or offered corrective material, and later relied on limitation and Jameel abuse.

HH Judge Moloney QC, sitting in the High Court, granted disapplication under section 32A of the Limitation Act 1980 and dismissed the strike-out application: [2013] EWHC 3182 (QB). The defendants appealed. The central issue was whether the claimant had established that it was equitable to disapply the one-year limitation period for the earlier publications.

1. Appeal allowed; claim dismissed. Sharp LJ, with whom Macur and Lewison LJJ agreed, held that the judge’s exercise of the section 32A discretion was flawed. On a fresh assessment, the claimant had not established that it was equitable to disapply the limitation period.
2. Although the discretion is wide, libel claims require special treatment. Their object is prompt vindication of reputation, and the one-year period reflects the need for vigorous and speedy pursuit of that object. The claimant bears the onus of justifying disapplication. Unexplained or inadequately explained delay will ordinarily prevent a conclusion that disapplication is equitable: Steedman v BBC [2001] EWCA Civ 1534.
3. The claimant’s correspondence did not amount to bona fide negotiations for redress of the alleged libel. Its predominant purpose was to seek an investigation into the original reporting. By July 2012 at the latest, he knew that further progress required proceedings. He could not justify delay by waiting for investigations that were legally irrelevant to his cause of action.
4. There was no reliable evidential basis for finding that the claimant first learned of the limitation period only in early 2013. In any event, ignorance of that period will rarely be significant in a libel claim, because a person seeking vindication is expected to act promptly whether or not aware of the precise time limit. Personal-injury authorities under section 33 of the Limitation Act 1980 did not assist, since that provision has different statutory factors.
5. Section 32A(2)(b)(ii) requires consideration of all conduct after the claimant acquired the relevant knowledge. It therefore included the unexplained delay of about six and a half months after issue before the claimant sought disapplication. The balance of prejudice did not justify depriving the defendants of their limitation defence.
6. The surviving timely publications were minuscule. They could not provide meaningful vindication; damages would be minimal; the material had been removed and there was no threat of republication. The remaining claim therefore fell squarely within the Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75 jurisdiction and was dismissed.

• Court of Appeal (Civil Division): Allowed the defendants’ appeal, set aside the disapplication of section 32A of the Limitation Act 1980, and dismissed the claim: [2014] EWCA Civ 1411.
• High Court (Queen’s Bench Division): HH Judge Moloney QC granted the claimant’s application to disapply the limitation period and dismissed the defendants’ strike-out application: [2013] EWHC 3182 (QB).