Alsaifi v Npower Ltd & Ors

A libel claim accrues on publication. The serious-harm requirement in the Defamation Act 2013 does not postpone accrual until harm is confirmed. Disapplication of the one-year limitation period for libel is exceptional. The claimant must explain the delay and show why it is equitable to extend time, having regard to prejudice, the reasons for delay and the availability of evidence.

A claim which merely challenges the fairness of dismissal is ordinarily within the statutory unfair-dismissal regime and cannot be recast as a claim in negligence or defamation. A data-protection claim must identify an applicable statutory right and plead the facts necessary to establish its breach.

The claimant, a former employee of Npower Limited, sued the company and two employees in defamation, negligence and for alleged data-protection breaches arising from his dismissal and the handling of his employment references.

The defendants applied for summary judgment and strike out. The claimant applied for an extension of time to serve his Particulars of Claim and for relief from sanctions. He also sought determination of the meaning of the words complained of and whether serious harm could be inferred.

The central issues were whether the defamation claim was time-barred, whether the pleaded publication and serious-harm case had any realistic prospect of success, whether the data-protection claim disclosed a cause of action, and whether the negligence claim was an impermissible attempt to recast an unfair-dismissal complaint.

1. Defamation limitation. The cause of action in libel accrued on publication, not when the claimant’s dismissal was confirmed or when serious harm was said to have crystallised. The serious-harm requirement in section 1(1) of the Defamation Act 2013 did not alter that rule, and section 8(3) provided confirmation. The claim was issued outside the one-year period in section 4A of the Limitation Act 1980.
2. Disapplication of limitation. Applying the approach explained in Bewry v Reed Elsevier UK Ltd [2015] 1 WLR 2565, the court treated the discretion under section 32A as wide but subject to the special need for expedition in libel claims. The claimant had not acted promptly, had not adequately explained the delay, and had not shown that it was equitable to disapply section 4A. Judgment was therefore entered on the limitation ground.
3. Defamation merits. The Particulars of Claim did not plead publication to anyone other than the claimant. Sending a private and confidential dismissal letter to the claimant alone was not publication. Any possible internal publication would in any event face qualified privilege and an inadequate plea of malice. The alleged loss of reputation arose from the dismissal itself, and the unfair-dismissal legislation occupied that field: Johnson v Unisys Ltd [2003] 1 AC 518; Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22.
4. Data protection. Section 10 of the Data Protection Act 1998 had been repealed before the claim was issued. In any event, the claimant had not pleaded service of a data-subject notice or unjustified failure to comply with it. The claim disclosed no valid cause of action.
5. Negligence. The pleaded negligence particulars directly challenged the fairness of the dismissal or claimed losses consequential upon it. They therefore fell within the exclusion identified in Johnson v Unisys Ltd and could not be pursued as common-law negligence claims.
6. Disposition. The entire claim was struck out under CPR 3.4(2)(a). The defendants also obtained summary judgment under CPR 24.2 and summary disposal of the defamation claim under section 8 of the Defamation Act 1996. The claimant’s applications became unnecessary to determine.

First-instance decision. The judgment does not state any prior appellate decision in the same litigation.