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Brady v Norman [2011] EWCA Civ 107

Case date: 09/02/2011

Court: Court of Appeal

Area/s of law: Defamation

Factual background

The Claimant is the former General Secretary of ASLEF. The Defendant is the current General Secretary. In September 2008, in the course of another defamation action, the Claimant became aware of a defamatory speech which the Defendant had made in June 2006. In June 2009 the Claimant sought to launch proceedings for slander in respect of the Defendant’s speech. He did so by issuing a part 8 Claim Form seeking disapplication of the1-year limitation period which applies to defamation actions. He said that his delay between September 2008 and June 2009 was due to a lack of funds and that his solicitors were reluctant to act for him until the bill for his first defamation action had been settled.

The Master rejected the application to disapply the limitation period, holding, among other things, that the loss of the limitation defence was itself a matter of prejudice to the Defendant which he could properly take into account when considering, under section 32A of the Limitation Act, the respective prejudice to the parties which would be caused by a decision to disapply, or to refuse to disapply, the limitation period. On appeal, Eady J upheld the Master’s decision, having regard to the decision of the Court of Appeal in Steedman v BBC [2002] EMLR 318. The Claimant brought a further appeal, arguing that the mere loss of a limitation defence could not constitute prejudice for the purposes of section 32A, and that there was no evidence that the Defendant’s ability to defend the case had been diminished by the passage of time. The Claimant relied on the Court of Appeal decision in Cain v Francis [2009] QB 75, arguing that it was inconsistent with Steedman and should be preferred. Cain v Francis concerned the equivalently worded section 33 of the Act, which deals with the disapplication of the 3-year limitation period in personal injury claims.

The Decision

The Court of Appeal dismissed the Appeal.

The President noted that, in Steedman, the Court of Appeal had said that, in a libel action, a direction under section 32A was always highly prejudicial to the defendant. In a previous personal injury decision (Hartley v Birmingham City Council [1992] 1 WLR 968) Parker LJ had said that the effect of the delay on the defendant’s ability to defend the claim was “paramount”, but in Steedman, David Steel J had held that different considerations arise in libel, because claims to protect one’s reputation ought to be pursued with vigour given the ephemeral nature of most media publications. He had said that, although the effect of the delay on the defendant’s ability to defend the claim remains important, it is not to be regarded in any way as decisive except perhaps where the limitation defence can be fairly described as a complete windfall.

Summarising Cain v Francis, the President noted that Smith LJ had said that, where the defendant has had early notice of the claim, the accrual of a limitation defence should be regarded as a windfall and the prospect of its loss, by the exercise of the section 33 discretion, should be regarded as no prejudice at all or only a slight degree of prejudice. He further noted that Smith LJ had said that, where a defendant has an obligation to pay damages, he only deserves to have that obligation removed if the passage of time has significantly diminished his opportunity to defend himself. Andrew Morrit C, the President noted, had said that it did not appear to him that the loss of a limitation defence should be regarded as a head of prejudice at all if the delay had not caused the defendant prejudice in its defence.

Comparing the two cases, the President concluded that they do not articulate different and conflicting principles, but illustrate the same principles being applied in two different circumstances. In a personal injury claim, the loss of a fortuitously acquired limitation defence will often be regarded as of little or no prejudicial weight, and is likely to be outweighed by the prejudice of the claimant in accidentally losing his claim. In defamation, the considerations are likely to be different. The effects of the publication are likely to be transient and, in progressively reducing the limitation period to one year, Parliament has made clear its intention that a claimant should assert and pursue his need for vindication speedily. The President also noted, but did not expressly endorse, a further point of distinction between personal injury and defamation proceedings which Eady J had identified as a factor relevant to prejudice, namely that the fact of being sued for defamation is itself a serious interference with freedom of expression.

Aidan Eardley

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