Nicole Daedone & Ors. v BBC

Under the Limitation Act 1980, a podcast’s continuing online availability does not generally justify less vigorous pursuit of a libel claim. The court may consider the publication’s nature, but the immediate publicity may remain ephemeral.

When exercising the section 32A discretion, the court must balance all the circumstances, including delay, its reasons, the parties’ prejudice, the need for swift vindication, the seriousness and reach of the allegations, and evidential prejudice. Deliberate inaction after knowledge of the claim weighs heavily against disapplying the limitation period.

The claimants sued the BBC over its podcast The Orgasm Cult. The original proceedings were issued within time by the Institute of OM LLC and OM IP Co. The claim form was later amended to add Nicole Daedone, Rachel Cherwitz and OneTaste Incorporated as libel claimants.

The BBC applied to disallow the amendments as statute-barred. The added claimants sought directions under section 32A of the Limitation Act 1980 disapplying the one-year period in section 4A. The central issue was whether it would be equitable, having regard to delay, prejudice and all the circumstances, to allow each new libel claim to proceed.

1. The added libel claims were new claims under section 35 of the Limitation Act 1980. They were deemed to have been commenced on 9 November 2021 and were statute-barred when the re-amended claim form was served. They therefore required a section 32A direction or had to be disallowed.
2. The section 32A discretion is largely unfettered. The court must consider all the circumstances, including the length and reasons for delay, delayed knowledge, promptness after knowledge, evidential prejudice, and the respective prejudice to claimant and defendant. Libel claims should ordinarily be pursued with vigour because of the need for swift vindication.
3. The continuing online availability of a podcast does not generally justify less vigorous pursuit of a libel claim. The nature of the publication is relevant, but the immediate burst of publicity may remain ephemeral. The absence of significant evidential prejudice does not reduce the weight of the swift-vindication principle; it merely leaves less prejudice on the defendant’s side of the balance.
4. The seriousness and apparent reach of the allegations, the importance of vindication, and the fact that other claims would continue were relevant. They did not overcome the absence of cogent reasons for delay by Ms Daedone and OneTaste. Both knew of the publication and underlying facts and were inferred to have known of the original claim but deliberately chose not to join it.
5. Ms Cherwitz was treated differently. The court accepted that she relied on advice from an American criminal lawyer, was unaware of the existing action, and did not know that a defamation claim was possible until February 2022. Ignorance of the law carried little weight, but the overall balance favoured allowing her claim.
6. Section 4A was disapplied to Ms Cherwitz’s claim. The BBC’s application to disallow her amendment was dismissed. Ms Daedone’s and OneTaste’s applications were dismissed, and the BBC’s application to disallow their libel amendments was allowed.