Nicole Daedone & Ors. v BBC

The court considered applications about the addition of new libel claimants to existing proceedings and whether the one-year limitation period in section 4A of the Limitation Act 1980 should be disapplied under section 32A. The court applied the statutory framework in ss.4A, 32A and 35 of the Limitation Act 1980 and the relevant Civil Procedure Rules governing amendments and new claims. It emphasised that libel claims must generally be pursued with vigour, that the discretion under s.32A is highly prejudicial to defendants and must take account of length and reasons for delay, prejudice to each party and the effect of delay on availability and cogency of evidence.

On the facts, the judge found that Ms Daedone and OneTaste had been aware of the publications and of the original claim but had made deliberate, unexplained choices not to join the proceedings, so their delay was inadequately explained and disapplication of s.4A would be inequitable; their proposed libel claims were therefore disallowed. By contrast, Ms Cherwitz had relied on advice from a criminal lawyer and was not aware of the original claim, so the balance of prejudice favoured disapplying s.4A in respect of her claim; the amendment adding her was therefore permitted.

Background and parties: The BBC broadcast a podcast series entitled "The Orgasm Cult" between 10 November and 16 December 2020 which the claimants said was defamatory. The original claim, issued 9 November 2021, named two corporate claimants (Institute of OM LLC and OM IP Co.). Amended and re-amended claim forms subsequently sought to add as claimants Nicole Daedone, Rachel Cherwitz and OneTaste. The BBC applied to disallow those amendments on the ground the new libel claims were statute-barred. The new claimants applied under s.32A Limitation Act 1980 to have the one-year limitation period in s.4A disapplied.

Nature of the application: The principal issue was whether the court should exercise its discretion under s.32A to disapply s.4A so as to allow the late-added libel claims to proceed. The court had to weigh the statutory factors (length and reasons for delay, knowledge of relevant facts, promptness once facts were known and effect on evidence) and all other circumstances, including the policy that defamation claims be pursued with vigour and the prejudice to freedom of expression.

Evidence and issues: Witness evidence included BBC in-house correspondence and witness statements from Ms Daedone, Ms Cherwitz and OneTaste's General Counsel. The judge considered (i) whether the new claims were "new claims" for the purposes of s.35 and thus separately time-barred; (ii) whether s.32A discretion should be exercised to disapply s.4A; and (iii) the specific factors in s.32A including reasons for delay and prejudice to the BBC.

Reasoning: The court held the additions were "new claims" under s.35 and therefore, absent a s.32A direction, statute barred. The judge accepted that the podcast medium does not, as a matter of law, justify a generally less vigorous pursuit of claims; the ephemeral surge of publicity remains relevant. On the evidence the court found no cogent or adequate explanation for the delay by Ms Daedone and OneTaste: both had notice of the podcast pre-publication, knew of the original claim, and made a deliberate decision not to join. That unexplained deliberate forbearance was a significant factor against disapplying s.4A for them. By contrast, Ms Cherwitz had followed advice of a criminal lawyer, was unaware of the original claim and only learned of proceedings in February 2022; the balance of prejudice favoured allowing her claim to proceed. The delay had not affected availability or cogency of evidence but that factor did not outweigh the other considerations.

Disposition: The court directed that s.4A shall not apply to Ms Cherwitz's claim and dismissed the BBC's application to disallow the amendment to plead her libel claim. The court refused directions under s.32A for Ms Daedone and OneTaste and allowed the BBC's application to disallow their late libel claims.

First instance judgment: the court exercised its discretion under s.32A Limitation Act 1980 in part. It directed that s.4A shall not apply to the claim brought by Ms Rachel Cherwitz and dismissed the BBC's application to disallow the amendment adding her. It declined to disapply s.4A for Ms Nicole Daedone and for OneTaste and allowed the BBC's application to disallow their amendments. The rationale was that Daedone and OneTaste gave inadequate explanations for delay and had been aware of the publications and the original claim, whereas Cherwitz had relied on criminal-law advice, was not aware of the original proceedings and the balance of prejudice favoured her claim proceeding.