Economou v De Freitas

Amendment to add a new defamation cause of action after expiry of the limitation period is permitted only where the statutory and procedural conditions are met. Each publication ordinarily gives rise to a separate cause of action, even where the words and alleged meanings are similar. The court must also consider whether late relief would be equitable, including delay, prejudice, proportionality and the effect on trial preparation. Unexplained delay and substantial prejudice to the defendant will ordinarily weigh strongly against relief. An amendment which merely clarifies an existing claim, and causes no irremediable prejudice, may properly be allowed.

The claimant brought a defamation action concerning media publications about the prosecution of Eleanor de Freitas, the daughter of the defendant, after she made a rape allegation against him and later died before trial. At a pre-trial review, the claimant sought to add a new cause of action concerning publication of a draft witness statement to a journalist, and to amend an existing claim concerning publication in The Guardian. The defendant sought permission to serve supplementary evidence and amend his Defence. The central issues were whether the proposed new claim arose from the same or substantially the same facts as an existing claim, whether limitation should be disapplied, and whether the other amendments would prejudice the fair and efficient conduct of the trial.

1. New cause of action. Permission to add the claim concerning communication of the draft witness statement was refused. Under s 35(3) and s 35(5)(a) of the Limitation Act 1980, and CPR 17.4(2), the new claim did not arise from the same or substantially the same facts as an existing claim. The existing claim concerned publication in The Guardian; the proposed claim concerned the separate communication of the draft statement to the journalist.
2. Each publication in a defamation claim is ordinarily a separate cause of action. Similar allegations or meanings do not make separate publications the same or substantially the same fact for limitation purposes. The approach in Komarek v Ramco Energy plc was applied.
3. Even if the procedural conditions had been met, relief under s 32A of the Limitation Act 1980 would have been refused. The discretion is exceptional. The claimant gave no adequate explanation for the many-month delay, and the late amendment would have required new pleading, evidence and factual investigation shortly before a substantial trial. The defendant would suffer substantial prejudice, while the claimant would suffer little practical prejudice because his existing claims could provide vindication, damages and an injunction.
4. The existing claim was permitted to be amended in principle, subject to revisions making clear that it concerned libel caused by publication in The Guardian, rather than separate publication of the emailed material to the journalist. The defendant’s supplementary statement and proposed amendments to the Defence were also permitted, since they corrected an omission and aligned the pleadings and evidence without irremediable prejudice to the claimant.

not stated in the judgment.