Baroness Lawrence of Clarendon OBE v Associated Newspapers Limited

On summary judgment, the court must distinguish evaluation of evidence from fact-finding. A claim should proceed where disputed evidence gives a claimant a real prospect of showing under section 32 of the Limitation Act 1980 that relevant facts were deliberately concealed and could not with reasonable diligence have been discovered. In unlawful information-gathering claims, publication may be time-barred while a distinct claim based on obtaining private information may engage section 32. Evidence from private investigators, sworn denials and disguised sources may make concealment and discoverability issues for trial. Documents withheld under a restriction order made under the Inquiries Act 2005 remain protected indefinitely. The court cannot retrospectively permit their use, and relying on them in pleadings may be an abuse of process even where some information has entered the public domain.

Seven claimants brought six claims against Associated Newspapers Limited for misuse of private information, alleging unlawful information gathering by journalists and private investigators and subsequent publication in Associated titles. Associated applied for summary judgment and strike-out on limitation grounds, relying on the six-year period and contending that the claimants knew, or could with reasonable diligence have discovered, the relevant facts before October 2016.

Associated also sought to strike out pleading based on ledgers supplied to the Leveson Inquiry, arguing that their use breached restriction orders made under the Inquiries Act 2005. A separate application concerned anonymity and reporting restrictions. The central issues were whether the claims had a real prospect of defeating limitation under section 32 of the Limitation Act 1980, and whether the ledgers remained subject to a continuing restriction order.

Disposition. The Limitation Application was dismissed. The Restriction Order Application succeeded. The temporary reporting restrictions remained in force pending further order.

1. Limitation is a defence to a civil claim. It ordinarily bars the remedy rather than the right and must be pleaded. Limitation alone could not justify striking out under CPR 3.4(2)(a). A challenge based on limitation was more appropriately considered under CPR Part 24.

2. On summary judgment, the court had to decide whether each claimant had a real rather than fanciful prospect of defeating limitation. The court could evaluate evidence, but could not conduct a mini-trial or resolve material disputed facts. The issues under section 32 of the Limitation Act 1980 were fact-sensitive and, absent a clear knockout point, required trial. The approach was consistent with Three Rivers DC v Bank of England (No.3) [2003] 2 AC 1, King v Stiefel [2021] EWHC 1045 (Comm) and Various Claimants v MGN Ltd [2022] EWHC 1222 (Ch).

3. The publication-only aspects of the claims were not concealed and were time-barred. The materially distinct claims based on obtaining private information were capable of engaging section 32. The alleged unlawful acts were inherently concealed. The claimants also had a real prospect of proving further concealment through Associated's sworn denials and the presentation of information in articles in a way that could divert suspicion towards personal sources.

4. Section 32 required consideration of actual discovery and what could have been discovered with reasonable diligence. The inquiry included whether there was a trigger requiring investigation, when inquiries could reasonably have been made, and what those inquiries would have revealed. The arrival of detailed evidence from private investigators could be a watershed moment enabling a viable or worthwhile claim to be articulated. Each claimant therefore had a real prospect of defeating limitation, and the issue had to be resolved at trial.

5. The ledgers were supplied under section 21 notices but did not form part of any witness's evidence for the purposes of the First and Second Restriction Orders. They were nevertheless material withheld from publication by the Inquiry. The Final Restriction Order therefore applied to them, notwithstanding their omission from the Schedule. Under section 20, the restriction continued indefinitely unless varied or revoked by the relevant Minister.

6. The court had no power to vary or revoke the Final Restriction Order or to grant retrospective permission for use of the ledgers. Use of material obtained in breach of the order in civil pleadings would be an abuse of process and would justify striking out the affected pleading. Publication of some information derived from the ledgers by the Online Publisher did not remove the restriction or permit their use.

7. The court did not need formally to decide whether the CP Undertaking had also been breached. It held, on the evidence available, that the named lawyers and claimant had not breached it. The undertaking had ended with the Inquiry and had practically been replaced by the Final Restriction Order.

8. Derogations from open justice had to be exceptional, strictly necessary and no wider than required. At this early procedural stage, before a Defence had been filed, temporary anonymity and reporting restrictions were justified to protect the administration of justice and persons facing serious allegations without an opportunity to respond.

First instance decision. No prior appellate decision is stated in the judgment.