Musst Holdings v Astra Asset Management UK & Anor

A pleading referring to repeated publication does not ordinarily plead separate causes of action arising from unidentified later publications. A later publication is a new claim where the original claim form and particulars identify only an earlier publication.

The court’s discretion under section 32A of the Limitation Act 1980 is wide but its exercise in defamation proceedings is exceptional. Delay, its reasons, evidential prejudice, the strength and value of the proposed claim, and the availability of another remedy are relevant.

Where related claims have been transferred for joint case management by agreement, a preliminary trial should be ordered only where it best serves the overriding objective. Apparent savings must be weighed against the risk that the preliminary issues will not determine the main dispute.

The judgment concerned two related claims. Musst Holdings brought a contract claim concerning an introduction agreement and alleged breaches involving disparaging statements. Astra brought defamation and malicious falsehood claims concerning statements allegedly made in Rome and sought permission to add a further claim concerning statements allegedly made to Mr Chander on the London Underground.

The proposed amendment was made after expiry of the primary one-year limitation period for the defamation claim. Astra relied on CPR 17.4(2) and section 32A of the Limitation Act 1980. Musst opposed the amendment and sought a preliminary trial of issues said to overlap with the contract claim.

The central issues were whether the Chander claim was already pleaded or arose from substantially the same facts, whether limitation should be disapplied, and whether the two claims should proceed together or through preliminary issues.

1. Amendment refused. The Chander claim was a new claim. The claim form referred only to publication of the words in Rome in June 2016. The reference to repetition in the particulars supported the requested injunction and did not plead separate causes of action for later publications. It also lacked sufficient particularity as to publication and loss. The reasoning in Berezovsky v Abramovich [2011] 1 WLR 2290 was distinguished because that case involved correction of a recognisable, though defective, cause of action.
2. CPR 17.4(2) therefore could not apply because the proposed claim did not arise from the same or substantially the same facts. Section 32A of the Limitation Act 1980 was unavailable. Although the discretion is wide, defamation limitation periods are intended to promote swift vindication and disapplication is exceptional. The delay was substantial and inadequately explained; evidence was likely to be less cogent; a related contractual remedy already existed; and the proposed claim appeared to have limited value. A detailed merits assessment was unnecessary, and the court proceeded on the basis that both limbs of the claim had a real prospect of success.
3. Joint trial ordered. The parties had agreed that the claims would be case managed and tried together. That agreement was not binding, but it was a significant case-management factor. The proposed preliminary issues were uncertain to determine the principal matters in the defamation claim, the proposed order was inadequately formulated, and the trial date required vacation in any event. The warnings in Tilling v Whiteman [1980] AC 1 and Rosetti Marketing Ltd v Diamond Sofa Co Ltd [2013] Bus LR 543 supported caution about preliminary issues.
4. The amendment application was dismissed, the June 2020 trial fixture was vacated, and both claims were directed to be tried together in a new 2021 trial window. A defence to the defamation claim was ordered.

First-instance case-management decision. No prior appellate decision was stated in the judgment.