LAW REPORT : Time bar not extended for late libel claim

LAW REPORT v 19 July 1996 : C v Mirror Group Newspapers and others; Court of Appeal (Lord Justice Neill, Lord Justice Morritt, Lord Justice Pill) 21 June 1996
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For the purpose of section 32A of the Limitation Act 1980, which enabled a libel action to be brought out of time where the plaintiff had been unaware till then of "facts relevant to the cause of action", the relevant facts were those establishing the existence of a cause of action, not the absence of a possible defence thereto.

The Court of Appeal dismissed an appeal by the plaintiff, who may not be named, against that part of a decision of Sir Michael Davies, sitting as a High Court judge on 20 March 1995, by which he struck out, as having being brought out of time, her libel claim against the four defendants, Mirror Group Newspapers, South West Wales Newspapers Ltd, Western Mail & Echo Ltd and South Wales Evening Post. But the court allowed the plaintiff's appeal against that part of the judge's order whereby he had also struck out her claim in malicious falsehood.

The plaintiff in person; Patrick Moloney (Davenport Lyons) for the first defendant; Thomas Shields QC and Jane Phillips (Oswald Hickson Collier & Co, and Sharpe Pritchard for Loosemores, Cardiff and for Foot & Bowden, Plymouth) for the second to fourth defendants; Andrew Caldecott QC (Treasury Solicitor) as amicus curiae.

Lord Justice Neill said the plaintiff was divorced in 1984. She was given custody of her two children and took them on holiday to Tenerife, but then did not bring them back to England. On the father's application they were made wards of court and an order was made requiring their return to England.

On hearing that they were now in Australia, the father made an application which came before Judge Michael Evans QC, sitting as a High Court judge in Swansea, who on 21 March 1988 adjourned the hearing into open court and lifted reporting restrictions to enlist the help of the media in locating the children.

After the hearing the father spoke to the press, making serious and defamatory allegations against the plaintiff, in particular that she was connected with a drugs gang. This was completely untrue and was later withdrawn. Unfortunately, the allegations were published in a number of newspapers. The report in the Daily Mirror on 22 March 1988 did not make clear that the words were spoken outside court rather than during the hearing. The other newspaper reports made this clear.

The plaintiff received a copy of the Daily Mirror article in Australia and telephoned the newspaper in England to complain about it. She was told that the newspaper was just repeating what her husband had said in court.

On 25 August 1993, Judge Michael Evans wrote to the plaintiff stating that to the best of his recollection the father had, on 21 March 1988, said nothing in court about drug smuggling nor that the plaintiff was a drug smuggler. The plaintiff issued writs on 21 March 1994, well outside the normal three-year limitation period in defamation but just within the six-year period for malicious falsehood.

The plaintiff relied on section 32A to defeat the limitation defence to her libel claim, saying that it was only upon receipt of Judge Evans's letter in August 1993 that she realised that her involvement in drug smuggling had not been mentioned in court on 21 March 1988, and therefore that the newspaper reports had not been privileged as accounts of court proceedings. Her writ was issued within a year thereafter.

In Johnson v Chief Constable of Surrey [1992] CA Transcript 961, the Court of Appeal held that the words "any fact relevant to the plaintiff's right of action" in section 31(1)(b) of the 1980 Act meant facts which should be pleaded in a statement of claim.

That also applied to the relevant expression in section 32A. The relevant facts were those which the plaintiff had to prove to establish a prima facie case. That being so, the fact alleged to have become known to the plaintiff only in August 1993, that drug smuggling had not been mentioned in court, was not a relevant fact within the meaning of section 32A.

It was relevant only to the possible existence of a defence under the Law of Libel Amendment Act 1988 which conferred a privilege upon fair and accurate newspaper reports of public court proceedings.

Paul Magrath, Barrister