Otuo v Watchtower Bible and Tract Society of Britain

This is an appeal, with the permission of Vos LJ from the order made by HH Judge Parkes QC sitting as a Deputy High Court Judge on 9 March 2015, in which he refused to exercise his discretion pursuant to section 32A of the Limitation Act 1980 to exclude the time limit for bringing this action for slander. The appellant also renews his application for permission to appeal against an Order made by HH Judge Moloney QC on 14 May 2015. At the end of the hearing, we announced that the appeal was allowed, and the renewed application was refused. These are my reasons.

The appellant in this case, Mr Frank Otuo, brings these proceedings for slander against the Watchtower Bible and Tract Society of Britain, the representative body of the Jehovah’s Witnesses, in respect of an announcement made on the 19 July 2012 at the Wimbledon Congregation of Jehovah’s Witnesses, by Mark Lewis, a local congregation elder. He commenced his action by issuing his claim form on 19 July 2013. The words said to have been spoken are these: “Frank Otuo is no longer one of Jehovah’s Witnesses” (or “disfellowshipped” as it is described). The appellant who has represented himself throughout these proceedings, alleges that these words mean by innuendo, that he was remorselessly engaged in one of the following activities: fraud, paedophilia, theft, adultery, fornication, drunkenness.

In its defence to the claim, the respondent asserts amongst other things that claim is not justiciable, that the words are not defamatory of the appellant, and that they were published on an occasion of qualified privilege.

The claim itself is a straightforward one, but its procedural history, which is important to this appeal, is somewhat tangled, and it is necessary to set it out.

The matter came before HH Judge Moloney QC on 5 December 2013 on an application made by the respondent to strike out the claim, on the ground that the words were not defamatory, and the claim was non-justiciable. The judge held that the words complained of were not defamatory in their ordinary and natural meaning, but declined to strike out the innuendo meaning or to find the claim was not justiciable, though he gave liberty to re-apply after service of the reply.

On 19 June 2014, after service of its defence, the respondent made a further application to strike out the claim on the ground that it had been brought outside the primary limitation period of one year which applies to claims of slander by section 4A of the Limitation Act 1980.

Section 4A of the Limitation Act 1980, as amended provides that:

“…no such claim [that is, an action for libel or slander] shall be brought after the expiration of one year from the date on which the cause of action accrued.”

On 30 October 2014, Master Leslie determined that issue in favour of the respondent, and struck the claim. He said:

“The one year specified by the relevant statute expired at midnight on 18^th July 2013. Mr Otuo did know he had to bring his claim within a year. On 29^th June 2013, he had had a casual conversation with a friend, who was a lawyer. He thus became aware of the possibility that he had a right of action. ON 19^th July 2013, he issued the proceedings…It cannot be that they were issued within the one year, as, in law, days are indivisible. Mr Otuo is an intelligent man, but his suggestion as to what the words of the statute mean is not acceptable. The one year ended at midnight on 18^th July 2013, in spite of his ingenious argument.”

The Master awarded the respondent one third of its costs as he took the view, that it could and should have taken the limitation point earlier. He granted the appellant permission to appeal but solely on the question whether the respondent was precluded from relying on the limitation defence by acquiescence and estoppel.

The appellant duly appealed on that issue. He also argued that the Master should have dealt with his application to disapply the primary limitation period made pursuant to section 32A of the Limitation Act 1980, which had been issued on 29 July 2014. On 12 December 2014, his appeal was dismissed by Sir David Eady, sitting as a High Court Judge. We do not have a transcript of the judgment, but it is common ground that it dealt with the issue of law on which permission to appeal had been given, that is, acquiescence, and estoppel, and did not trespass on the other matter determined by the Master, namely whether the claim had been brought within the limitation period or not.

Sir David Eady obviously took the view (correctly) that the appellant’s application to disapply the limitation period made before the hearing below, should have been considered by Master Leslie. Accordingly, he directed that this issue should be listed to be heard by a judge. He also ordered the costs order made by Master Leslie be stayed pending the determination of the section 32A application, and that the appellant should pay the respondent’s costs of the appeal.

Section 32A of the Limitation Act 1980 provides as follows:

"(1)

If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

a)

the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and

b)

any decision of the court under this subsection would prejudice the defendant or any person whom he represents,

the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates.

(2)

In acting under this section the court shall have regard to all the circumstances of the case and in particular to—

a)

the length of, and the reasons for, the delay on the part of the plaintiff;

b)

where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A—

(i)

the date on which any such facts did become known to him, and

(ii)

the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and

c)

the extent to which, having regard to the delay, relevant evidence is likely—

(i)

to be unavailable, or

(ii)

to be less cogent than if the action had been brought within the period mentioned in section 4A.

The appellant’s application to disapply the limitation period pursuant to section 32A of the Limitation Act 1980 was heard by HH Judge Parkes QC sitting as a Deputy High Court Judge on 16 January 2015. On 9 March 2015, the judge ordered that the Order of Sir David Eady, striking out the action and ordering costs against the appellant should stand, and the stay of the order for costs made by Master Leslie should be lifted. The appellant was also ordered to pay the costs of the application to disapply, to be assessed in default of agreement, and to make a payment of £15,000 on account within 28 days.

In the course of his judgment, HHJ Parkes QC said that experienced defamation judges have tended to regard the disapplication of the limitation period as an exceptional matter, and set out what I had said in Bewry v Reed Elsevier UK Ltd [2014] EWCA Civ 1411, [2015] EMLR 6 at para 5, which was this:

"…it is clear that special considerations apply to libel actions which are relevant to the exercise of this discretion. In particular, the purpose of a libel action is vindication of a claimant's reputation. A claimant who wishes to achieve this end by swift remedial action will want his action to be heard as soon as possible. Such claims ought therefore to be pursued with vigour, especially in view of the ephemeral nature of most media publications. These considerations have led to the uniquely short limitation period of one year which applies to such claims and explain why the disapplication of the limitation period in libel actions is often described as exceptional."

The judge said that the onus was on the claimant to make out a case for disapplication; and that “Much will depend on the explanation which the claimant gives for the delay.” He said the appellant’s reasons for failing to apply within the time limit were inadequate. The appellant knew about the publication complained of, and what was, on his case, its serious innuendo meaning from the date of publication; he also knew he had a cause of action for slander and of the relevant limitation period for some weeks before he issued a claim. Yet he had made no complaint about the publication itself before issuing proceedings; indeed, the first the respondent knew of the complaint, was when claim form was served. He said the appellant’s concern appeared to be reinstatement rather than anything else.

The judge said this about the fact that the proceedings were issued one day out of time (as he understood the position to be):

“32.

Nor am I impressed by the claimant's argument that the discretion should be exercised in his favour given his mistake as to the last date on which to issue, or given the fact that he was only a day out of time. There was no good reason to leave issuing proceedings until the last minute. This is not a case like Hartley v Birmingham City District Council [1992] 1 WLR 968, where proceedings were inadvertently issued a day late against a background of prolonged negotiations with underwriters about quantum, liability not being in issue. As Leggatt LJ observed, if that application to disapply the limitation period had failed, it was hard to imagine any application being successful.”

33.

It is my conclusion that the claimant's reasons for failing to issue proceedings within the limitation period are inadequate, and certainly not, to adopt the language of the defendant's successful submissions in Bewry, of a sufficiently precise or compelling nature to discharge the heavy onus on him as the Conversely, if I exercised my discretion to disapply the limitation period, the defendant would suffer the substantial prejudice of having to defend a slander action of which it had known nothing until after the limitation period had expired. In my view, it would be quite wrong to describe the consequences of my refusal to disapply the limitation period as a windfall for the defendant, in the sense that it certainly would have been in Hartley.

The judge went on to say that it was not suggested that the delay had any effect on the defendant’s ability to defend the claim, which was an important consideration and one that section 32A(2)(c) expressly requires the court to have in mind; but this was a far from decisive consideration, and in the present case, it seemed to him to carry little weight. He found there was no sufficient reason to disapply the limitation period and dismissed the appellant’s application.

On 21 April 2015, the appellant made a second application for permission to appeal Master Leslie’s decision of the 30 October 2014. This application, made out of time, was based on the appellant’s recent discovery of the decision of Eady J (as he then was) in Gentoo Group Ltd and anor. v Hanratty [2008] EWHC 627 (QB). This decision, which had not been cited to Master Leslie, said at paragraph 7 (citing Pritam Kaur v. S Russell & Sons Ltd [1973] 1 QB 336) that the day on which a cause of action accrues is excluded from computation in arriving at the limitation period. (Footnote: ¹) On this analysis, the Master’s decision was erroneous in law. The limitation period in the appellant’s case had expired on the 19 July 2013, rather than on 18 July 2013 as Master Leslie had found; which meant on the face of it, that the Master had been wrong to hold that the primary limitation period had expired in this case.

The Gentoo point had been raised for the first time by the appellant in an email sent to the HH Judge Parkes QC on the 2 April 2015. The reply sent on behalf of the judge said that this went to a question determined by Master Leslie; and it was not the question before the judge, who had dealt with an application made by the appellant to disapply the primary limitation period pursuant to section 32A of the Limitation Act.

On 28 April 2015, Warby J. ordered that the appellant’s application for permission to appeal against Master Leslie’s order be heard by a High Court Judge. He also directed that the application be treated as an application for permission to reopen the hearing of his appeal against the decision of Master Leslie, pursuant to CPR 52.17 or otherwise, with the hearing to follow if permission was granted. The “otherwise” for this purpose, included the possibility that the court might have the jurisdiction to revoke or vary Sir David Eady’s order pursuant to CPR 3.1(7).

CPR 52.17 embodies the jurisdiction to reopen appeals, identified in Taylor v Lawrence [2002] EWCA Civ. 90; [2003] QB 528. It provides that the Court of Appeal or the High Court will not re-open a final determination of any appeal unless- (a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; and (c) there is no alternative effective remedy: see CPR 52.17. CPR 3.1(7) provides that “A power of the court under these Rules to make an order includes a power to vary or revoke the order.”

Warby J. expressed the provisional view that the appellant was correct on the limitation point as a matter of law. If so, he said, the issue of the claim form on 19 July 2013 was in time, and much expense had been wasted as a result of the respondent taking a bad point. However, the countervailing points were firstly, the interests of finality. The appellant had already had an appeal from Master Leslie’s order; and the only option in those circumstances was not a fresh appeal, but an application to re-open the appeal pursuant to CPR 52.17. Secondly, there had been delay. Six months had passed since Master Leslie’s order. Thirdly, there were the merits of the claim for slander, which had been published well over 18 months earlier. His concern was that to allow the present application would be to permit the revival of a stale claim which the appellant had not pursued vigorously and which was unlikely to succeed. However, what tipped the balance in favour of allowing the point to be argued, was the scale of the legal costs visited on the appellant as a result of the opposite view being urged on the court; and the potential merits of the point of law on (limitation). The judge nonetheless urged the parties to consider mediation.

On 14 May 2015, the case came once again before HH Judge Moloney QC sitting as a Deputy High Court Judge. He addressed three issues. First, what may be described as the substantive underlying question: on what date did the limitation period expire? Was it on the 18 July 2013, as the Master had held or on the 19 July 2013?

After a careful analysis of the authorities, including Marren v Dawson Bentley & Co [1961] 2 WLR 679; Pritam Kaur and Gentoo v Hanratty; and of academic textbooks, such as McGee on Limitation Periods at para 2.005 and Duncan & Neill on Defamation, 4^th edition, at footnote 2 to para 24.01, he decided it had expired on 19 July 2013. At paras 18 to 20 he said:

“18.

In the light of the above authorities, I consider myself bound by the Court of Appeal decision in Pritam Kaur and persuaded (to put it no higher) by the decisions of the Judges in the High Court in the cases of Marren and, above all, Gentoo. I am persuaded that the law is, and for many years has been, that the date on which the tort is committed is disregarded and that the count begins the following day so that the last day on which proceedings can be issued is the corresponding date, that is to say the same date of the same month, one year (or three years as the case may be) after the date of the tort.

19.

I might add that this interpretation of the law accords with my own understanding of the law through many years of specialist practice in defamation. In that field, as the limitation periods were progressively shortened so that they are now much shorter than in other areas of litigation, the knowledge of the precise date on which proceedings must be commenced became of greater and greater importance. I had the “corresponding date rule” in mind in my previous judgment in this matter when I pointed out that the proceedings were issued exactly 12 months after the date of publication. The implication of what I was saying was that they had been issued right on the cusp of the limitation period but had not quite gone over it.

20.

I therefore conclude that, if the claimant had appealed against Master Leslie’s decision on this question of on what date the limitation period expired, he would have been entitled as a matter of law to succeed in his appeal. I feel confident that, if Sir David Eady had had this point before him, which he did not, he would certainly have recalled his own decision in Gentoo and would have allowed the appeal on that ground.”

The second matter considered by the judge was the correct characterisation of the appellant’s application for relief. As to that, the judge decided this was an application to reopen a decided appeal, and therefore the conditions of CPR 52.17 had to be met (see paras 23 to 24). He considered that the injustice (of having the case wrongly decided because the judge made an error of law) was more apparent than real. He drew a distinction between the decision of Master Leslie (which was wrong) and that of Sir David Eady and HH Judge Parkes QC, which he said, were right on the material before them. He said the inability to pursue the claim had arisen because the appellant had failed to take a good point of law, which he had now discovered, before Sir David Eady on appeal. If he had done that, such injustice as there was in this case, would have been swiftly corrected.

Thirdly, the judge considered the jurisprudence on CPR 52.17 (at paras 30 to 32) particularly, the decisions of the Court of Appeal in Re Uddin [2005] 1 WLR 2398, where the exceptional nature of the Taylor v Lawrence jurisdiction was emphasised, and in R (Nicholas) v Upper Tribunal and anor [2013] EWCA Civ. 799. His conclusion was that the circumstances of this case were not exceptional; the integrity of the legal process had not been critically undermined and there had been no corruption of the process. Accordingly, he refused the appellant’s application for permission to reopen the appeal.

The appellant applied for permission to appeal against the Order made by HH Judge Parkes QC on 9 March 2015 (by notice filed on 22 April 2015); and the Order made by HH Judge Moloney QC on 14 May 2015 (by notice filed on 4 June 2015).

On 10 September 2015, my Lord, the Chancellor (Lord Justice Vos, as he then was) granted permission to appeal against the Order made by HH Judge Parkes QC on 9 March 2015, on the basis that there was a compelling reason that the appeal should be heard, because the error of law made by Master Leslie had been perpetuated by subsequent judges.

On 4 January 2016, Lord Justice Moore Bick refused the appellant permission to appeal against the Order of HHJ Moloney QC made on 14 May 2015. He said there had been no corruption of process, merely a failure by the appellant and the court to identify the correct principles. The appeal therefore had no prospect of success.

The appellant renewed his application for permission to appeal against that refusal, and Lord Justice Vos directed that the renewed application should be heard at the same time as this appeal.

I start with the renewed application for permission to appeal. CPR 52.17(7) provides there is no right of appeal or review from the decision of the judge on the application for permission (to reopen the appeal under that rule), which is final. Thus, there is no right of appeal from the Order made on 14 May 2015 by HH Judge Moloney QC refusing the appellant permission to reopen the appeal heard by Sir David Eady, against the Order made by Master Leslie. I would add however that, like Lord Justice Moore Bick, I consider there was no arguable error in HH Judge Moloney QC’s reasons for refusing permission. As he made clear, unfortunate though the position was from the appellant’s perspective, he had not surmounted the high threshold which is set, before an appeal can be reopened. In this context, the judge cited these words from para 20 of the judgment of Longmore LJ (with whom McCombe LJ and Sir Stanley Burnton agreed) in R (Nicholas) v Upper Tribunal and anor:

One cannot get away from the fact that this application is based on lawyers’ mistakes and that the Taylor v Lawrence jurisdiction (only invented by this court in 2002 to cater for glaring injustice) is not intended to cater for such mistakes, however reasonable and understandable they may be. Law is a complicated business and mistakes will inevitably be made. Usually they will not matter because mistakes by lawyers can often be corrected or minimised by judges and mistakes by judges will be corrected by this court and this court can be corrected by the Supreme Court; but once a decision becomes final, at whatever level, it must be accepted as final in the absence of exceptional circumstances. Mistakes are, regrettably, not exceptional at all.”

The Taylor v Lawrence route to reopen the substantive issue of limitation by way of appeal is therefore firmly closed to the appellant. This does not mean that the appellant’s claim is extinguished, but it prohibits his right to pursue it, subject only to the issue of the discretionary disapplication of the time bar pursuant to section 32A of Limitation Act 1980. This of course, is the issue we are concerned with in the appeal.

As I have indicated, there was no argument before HH Judge Parkes QC that the Master’s conclusions on the limitation issue were wrong, since the premise of the hearing before him, was that the Master was correct, and the claim had been brought one day outside the limitation period. But HH Judge Moloney QC took the opposite view, and I consider he was right to do so.

In this connection, it is sufficient to refer briefly to the decision of the Court of Appeal in Pritam Kaur. Pritam Kaur concerned a claim for damages for negligence and breach of statutory duty under the Fatal Accidents Acts 1846 to 1959 and the Law Reform (Miscellaneous Provisions Act 1934) by the widow and administratrix of a foundry worker who had been killed at work, against her late husband's employers. Section 2(1) of the Limitation Act 1939 as amended provided (in similar wording to that of section 4A of the Limitation Act) that the action “shall not be brought after the expiration of three years from the date on which the cause of action accrued.” Lord Denning MR, with whom Karminski LJ agreed said at p.348:

“The Act of 1846, as amended by the Act of 1854, says it shall be commenced within three years after the death. Nothing turns on the difference in wording. The period is the same in either case. The first thing to notice is that, in computing the three years, you do not count the first day, September 5 1967, on which the accident occurred. It was so held by Havers J in Marren v Dawson Bentley… The defendants here, by their cross-notice, challenge that decision, but I think it was plainly right.”

See further, the observations of Megarry J, at p. 350, where he agreed with the judge below that the day of the accident should be excluded from the computation.

Excluding issues that might arise in connection with section 1 of the Defamation Act 2013, which are immaterial in this case, in my view, following Pritam Kaur, the day on which a cause of action for libel and slander accrues is excluded from the computation in arriving at the limitation period. The position is therefore accurately stated by Eady J as he then was in Gentoo v Hanratty.

Two things flow from this. First, the claim in this case was brought in time. Secondly, the application before HH Judge Parkes QC proceeded on a false basis, namely, that the proceedings were issued out of time when they were not. Albeit the point was not argued below, the appellant submitted before us that this raises a pure matter of law, which he should be permitted to rely on in the appeal (for which he required permission to amend his grounds of appeal) see Glatt and ors v Sinclair [2013] EWCA Civ. 241.

Mr Simon Achonu for the respondent did not seek to argue before us that HH Judge Moloney QC’s conclusions on limitation were wrong; indeed, the argument before us proceeded on the basis that his interpretation of the law was correct. He submitted however that this is irrelevant to this appeal, which should proceed as it did below, on the basis that the appellant had brought his claim marginally out of time, with the result that there is no conceivable ground to attack the judge’s exercise of his discretion.

I am unable to accept Mr Achonu’s submissions. This court now knows, as HH Judge Parkes QC did not, that the appellant’s claim for slander was brought (marginally) within the time limit specified by section 4A of the Limitation Act 1980, rather than (marginally) outside it; and in my judgment, it would be quite wrong for us to exclude these matters from our consideration. It is apparent that the issue of timeliness was highly material to the exercise of the judge’s discretion (as can be seen from the reasons he gave for refusing to disapply the time bar, outlined at paras 15 and 16 above). Whilst no criticism can be made of the way the judge dealt with the matter at the time, the short point is that, the case before him plainly proceeded on a false basis, which in my opinion flawed the exercise of his discretion; and led him to make a decision that was wrong.

The discretion afforded by section 32A is largely unfettered: see Steedman v BBC [2001] EWCA Civ. 1534, [2002] EMLR 17 where Sir David Steel (with whom Brooke LJ agreed) said at para 15 that the section:

"… requires the court to balance any prejudice to the claimant on the one hand and the defendant on the other in allowing the action to proceed or otherwise. All the circumstances of the case must be had regard to in assessing the justice of the matter with particular reference to the length of, and reasons for, the delay and the extent to which the passage of time since the expiration of the limitation period has had an impact on the availability or cogency of relevant evidence."

A number of factors which potentially told against the exercise of discretion in the appellant’s favour were correctly identified by the court below; but in circumstances where the judge’s decision was based on the (incorrect) premise that the appellant had commenced his proceedings outside the applicable limitation period, rather than within it, the case for disapplication on these very unusual facts was in my judgment a compelling one.

I agree.

I also agree.