Nugent and another v Willers

When deciding whether to exclude a defamation limitation period, the court must consider the whole delay after expiry of the primary limitation period. The word delay has the same meaning when assessing whether relevant evidence is unavailable and whether it is less cogent. The court may nevertheless give particular weight to the period after the claimant learned the relevant facts and acted promptly and reasonably. It must evaluate all the circumstances and the competing prejudice to both parties. A first-instance discretionary decision should be respected where there is no error of principle or material misdirection and it falls within the generous ambit of reasonable disagreement.

The respondent brought a libel claim in the Isle of Man concerning a letter sent to Customs and Excise in 2009. He discovered the letter in June 2013 and issued proceedings in December 2013, after the one-year limitation period in section 4A of the Limitation Act 1984 had expired. The appellants sought to strike out the claim.

Deemster Corlett exercised the discretion under section 30A to allow the claim to proceed in SUM 13/045. The Staff of Government Division dismissed the appeal in 2DS 2016/06. The Privy Council considered the meaning of delay for unavailable and less cogent evidence, and whether prompt and reasonable action could be inferred without direct evidence from the claimant.

1. Appeal dismissed. Section 30A required consideration of the whole period of delay after expiry of the primary limitation period. That period had the same meaning in section 30A(2)(a), (b) and (c).
2. For section 30A(2)(c), the court must use the same period when considering both whether evidence is unavailable and whether it is less cogent. The different wording concerning less cogent evidence reflects the need for a comparative evaluation. It does not create a different period for unavailable evidence.
3. The court must have regard to all the circumstances. It may treat some periods as more relevant than others and may give particular weight to the period after the claimant became aware of the relevant facts and acted promptly and reasonably.
4. The Deemster had considered the whole delay while treating the post-discovery period as particularly relevant. His conclusion that the appellants’ inability to call Mr Gubay was not attributable to the claimant’s delay was open to him.
5. The Deemster was entitled to infer from the surrounding circumstances that specialist legal advice and assistance with drafting were required. He had considered prompt instructions to lawyers, the specialist nature of defamation litigation, the draft particulars and the complex related proceedings.
6. Although another tribunal might have reached a different conclusion, there was no error of principle or material misdirection. The decision remained within the generous ambit of reasonable disagreement. The appeal was dismissed with costs, subject to submissions on costs within 21 days.

1. Privy Council: Appeal dismissed with costs, subject to submissions on costs within 21 days.
2. Staff of Government Division: Appeal dismissed in 2DS 2016/06.
3. High Court of Justice of the Isle of Man: Deemster Corlett exercised the discretion under section 30A to allow the libel claim to proceed in SUM 13/045.