Otuo v Watchtower Bible and Tract Society of Britain

For limitation purposes, the day on which a cause of action for libel or slander accrues is excluded from the computation. The corresponding date one year later is therefore the final day for issuing proceedings under section 4A of the Limitation Act 1980.

Where a court exercises the discretion under section 32A on the mistaken basis that proceedings were late, that false premise may materially flaw the discretion. The court must balance prejudice to both parties and consider all relevant circumstances, including delay, its reasons, and the effect on evidence.

Frank Otuo brought a slander claim concerning an announcement made at a Jehovah’s Witnesses congregation on 19 July 2012. He issued his claim form on 19 July 2013.

The Master struck out the claim, holding that the one-year limitation period expired at midnight on 18 July 2013. Sir David Eady dismissed an appeal on acquiescence and estoppel and directed that Mr Otuo’s application under section 32A of the Limitation Act 1980 be determined.

HH Judge Parkes QC refused that application on the assumed basis that the claim was one day late. HH Judge Moloney QC later held that the claim was in time but refused permission to reopen the earlier appeal. The central issues were the correct computation of the limitation period, the effect of that error on the section 32A discretion, and whether the earlier appeal could be reopened.

Disposition. The appeal against the refusal to disapply the limitation period was allowed. The renewed application for permission to appeal against HH Judge Moloney QC’s order was refused.

1. Reopening the earlier appeal. CPR 52.17 embodies the exceptional jurisdiction to reopen a final appeal. Reopening requires real injustice, exceptional circumstances, and no alternative effective remedy. CPR 52.17(7) makes the judge’s decision on permission final, with no right of appeal or review. Applying that high threshold, and the reasoning in R (Nicholas) v Upper Tribunal and anor [2013] EWCA Civ 799, the appellant’s failure to identify the correct limitation principle earlier did not justify reopening. Lawyers’ mistakes, however understandable, were not exceptional circumstances.
2. Computation of time. Following Pritam Kaur v S Russell & Sons Ltd [1973] 1 QB 336, the day on which the cause of action accrues is excluded from computation. The corresponding date one year later is the last day for issuing proceedings. The analysis in Gentoo Group Ltd and anor v Hanratty [2008] EWHC 627 (QB) accurately stated the position. Mr Otuo’s claim, issued on 19 July 2013, was therefore in time.
3. Section 32A discretion. The discretion under section 32A is largely unfettered. The court must balance prejudice to the claimant against prejudice to the defendant, considering all the circumstances, particularly the length and reasons for delay and the effect of delay on the availability or cogency of evidence, as explained in Steedman v BBC [2001] EWCA Civ 1534. The factors identified below were relevant, but the application proceeded on the false premise that the claim was out of time.
4. Materiality of the error. Timeliness was highly material to HH Judge Parkes QC’s exercise of discretion. The mistaken premise led him to assess the claimant’s delay and the defendant’s prejudice on the wrong basis. Although no criticism could be made of the judge’s approach on the information then before him, the error materially flawed the discretion and made the refusal wrong. The Court of Appeal was entitled to take the true limitation date into account.

1. Court of Appeal (Civil Division): in [2017] EWCA Civ 136, allowed the appeal against HH Judge Parkes QC’s refusal to disapply the limitation period and refused the renewed application concerning HH Judge Moloney QC’s order.
2. High Court, HH Judge Parkes QC: refused the application under section 32A of the Limitation Act 1980, proceeding on the basis that the claim was one day out of time.
3. High Court, HH Judge Moloney QC: held that the limitation period expired on 19 July 2013 but refused permission to reopen the earlier appeal under CPR 52.17.
4. High Court, Sir David Eady: dismissed the appeal from the Master on acquiescence and estoppel, and directed that the section 32A application be heard.
5. Master Leslie: struck out the claim as issued outside the one-year limitation period.