Otuo v The Watchtower Bible and Tract Society of Britain

This is a dispute involving the Jehovah’s Witnesses, an evangelical Christian organisation. The claimant is, or was, a member of that organisation. He complains of an announcement which he says was made by a local elder at the Wimbledon Congregation of Jehovah’s Witnesses on 19 July 2012, in these words: “Frank Otuo is no longer one of Jehovah’s Witnesses”.

The claimant issued a claim form on 19 July 2013. It appears to be a claim in slander, although the form does not say so. No relief is claimed. It is said in terms not to be a monetary claim.

After various interlocutory steps had been taken, the defendant belatedly issued an application dated 19 June 2014 to strike out the claim on the footing that the claim form had not been issued within the limitation period, so that the claim was time-barred. On 30 October Master Leslie struck the claim out, holding since that the publication complained of had taken place on 19 July 2012, the limitation period expired on 18 July 2013. However, he gave the claimant leave to appeal to the judge on a matter of law arising out of the delay in taking the limitation point. The question was whether the defendant’s conduct amounted to acquiescence or had given rise to an estoppel.

According to Master Leslie’s approved note of judgment, no application had been made to him for the primary limitation period to be disapplied (under s32A Limitation Act 1980). It seems that may have been a misunderstanding, for there is an application notice apparently dated 29 July 2014 which seeks precisely that order, together with an application for leave to amend the Particulars of Claim. However, on any view there was no evidence on the point before Master Leslie.

The appeal from Master Leslie’s order was dismissed by Sir David Eady on 12 December, but the judge ordered that the claimant’s outstanding application under s32A, Limitation Act 1980 should be listed before a judge. That (together with the application for leave to amend) is the application which is now before me.

The application for permission to re-re-amend the Particulars of Claim is not opposed, so I will refer to that version of the pleading for the purposes of this application.

The announcement complained of is said to have been made in front of at least 75 people, both members and general public. No natural and ordinary meaning is pleaded.

However, it is said that the innuendo meaning of the announcement was that the claimant had remorselessly engaged in one or more of a number of sinful acts, namely fraud, paedophilia, theft, adultery, fornication and drunkenness. The first element of the extrinsic facts relied on is “the defendant’s own publications used regularly for teaching its members and people who are curious to know about the defendant’s teachings”, and an example of one such is given, not by setting it out in the pleading but by reference to another document which was not before me. That document may or may not provide the necessary extrinsic facts to give rise to the meaning pleaded, but for present purposes I need not spend time on the point. I assume, and as I understood him Mr Otuo confirmed, that his case is that it would only be if he was guilty of such sinful acts that he would be the subject of such an announcement. In other words, any Jehovah’s Witness would understand the full meaning of what the claimant calls the ‘coded’ announcement.

As far as fraud is concerned – leaving aside the other ‘sinful acts’ - it is also pleaded that ten members were present who knew that the claimant had been charged with fraud and had been subjected to the defendant’s own internal proceedings. The innuendo meaning which that sub-group would have understood the announcement to bear would have been that the claimant had been found guilty of fraud and was no longer fit morally to be one of Jehovah’s Witnesses and should be shunned. The claimant adds that ‘authorised representatives’ of the defendant had in fact wrongly adjudged him to be a fraudster.

The claimant sets out in the Particulars of Claim the damage that he says he has suffered. Much of it relates to the fact of the organisation’s decision that he should no longer be a member, rather than to the publication of the words complained of. For instance, he pleads that his young children cannot understand why their father has been ostracised by the only community they have known since birth; he has lost all his Jehovah’s Witness friends, and is not allowed ‘spiritual association’ with his wife and children; and he laments the loss of his association with the organisation. On the face of it, those are all matters which flow from the decision to exclude him from the organisation, not from the announcement of the decision. His claim in slander can only relate to the damage done to his reputation by those to whom the announcement was published. That is pleaded, but it forms only a small and relatively insignificant part of the damage complained of.

He asks rhetorically in his Particulars of Claim whether damages would be a sufficient remedy for the damage done, and answers his own question “emphatically no”, but concedes that if there is to be financial reparation, a minimum of £140,000 would go some way to achieve it. In the prayer, he asks for a retraction and apology, damages in the sum of £140,000 and aggravated and exemplary damages (the basis for which is not pleaded) of £75,000, notwithstanding that the claim form makes no monetary claim.

The defendant is the Watchtower Bible and Tract Society of Britain. It is a registered charity. It has put in a defence, since amended, which admits that it is ultimately liable to indemnify the elders of Wimbledon against valid claims made arising out of their lawful acts. It is not absolutely clear whether that is an admission of responsibility for publication. In the context of the defence as a whole, I think that it is.

The core of the amended defence goes to meaning. The defendant’s case is that an announcement that a member has left the organisation is entirely neutral, and gives no indication of any reason. Members leave voluntarily for a variety of reasons: for instance, they may decide that they no longer accept the organisation’s teachings, or they may take up secular employment incompatible with the beliefs of Jehovah’s Witnesses, for example membership of the armed forces. They may also be asked to leave because their conduct may, even if not criminal, be found to be incompatible with that expected of them. The announcement is always the same, whatever the reason. Moreover, the investigation into the claimant’s conduct had been carried out in strict confidence, so no-one to whom the announcement was made would have known of it.

It is also pleaded that the announcement was made only to members and was protected by qualified privilege; and that (if the announcement did bear the innuendo meaning pleaded) it was true. Particulars of justification have yet to be provided.

There is not yet any Reply, although the Particulars of Claim contain what appears to be an allegation of malice, to the effect that named agents of the defendant were indifferent to the truth or falsity of the defamatory allegation complained of.

By s4A, Limitation Act (substituted by Defamation Act 1996 s5(2)), the 6 year time limit under s2 of the Act shall not apply to actions for (inter alia) libel and slander, and no such action shall be brought after the expiration of one year from the date on which the cause of action accrued.

Section 32A allows for a discretionary exclusion of the one year time limit:

“(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 modern starting point on the approach to be taken to s32A is Steedman v BBC [2001] EWCA Civ 1534, [2002] EMLR 17, where it was said at [15] that the discretion afforded by s32A was largely unfettered: 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.”

The limitation period for actions in defamation has been progressively reduced since 1985 from six years to three, and then from three to one. The rationale of those reductions is clear. Time is of the essence in defamation actions, and the claimant will normally be anxious – and will be expected to be anxious - to obtain an apology or correction at the earliest possible moment, in order to undo the damage to his reputation (see the Pre-Action Protocol for Defamation: Civil Procedure vol 1, 2014, paragraph C6-001 at 1.4). That is why experienced defamation judges have tended to regard disapplication of the limitation period as an exceptional matter. Sharp LJ, a judge with great experience of defamation work, put it this way in Bewry vReed Elsevier UK Ltd [2014] EWCA Civ 1411, [2015] EMLR 6 at [5]:

“…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 onus is of course on the claimant to make out a case for disapplication. Much will depend on the explanation which the claimant gives for the delay. In both Steedman and Bewry, that explanation was insufficient.

The claimant, who appears in person, put in a very long witness statement one day before the hearing. Much of it provides a detailed, albeit somewhat partial, account of the course of the litigation, and much is argument. However, some reasons are given for the delay in issuing proceedings.

What the claimant says is that he was not aware that he had a cause of action until he had a “casual chat” with a lawyer friend, on about 29 June 2013. The friend alerted him to the possibility of a claim in slander, and warned him that he had to take action ‘no later than the date of publication that year (2013)’. It did not occur to him that the final date for issue would be 18 (as opposed to 19) July. From 16 to 18 July, he was claimant in a three day interlocutory hearing against another Witness in the Chancery Division, the return date for his application for a freezing injunction, and he was under great pressure.

Moreover, he explains that he had wanted to “restore his reputation and resolve differences” with the defendant in a non-litigious way, and had two meetings with the defendant to try to resolve matters. He does not say when those occasions were, but refers to one by reference to correspondence which he exhibits. On 29 October 2012, he wrote to the Body of Elders in Wimbledon asking for reinstatement, and he repeated that request by letter dated 17 June 2013, received (according to the defendant) on 6 July 2013. It appears that the elders met him on 22 July 2013 to discuss his application for reinstatement, three days after he had in fact issued a claim form. There is no reference in the correspondence to another meeting, but I infer that if there was another meeting, it also was directed to the question of reinstatement. The claimant does not suggest otherwise. He does say, however, that he told the elders on 22 July 2013 (I infer, at the meeting) that a defamation suit would follow.

It is worth noting that although in his witness statement he claims to have wished to seek a non-litigious route to restore his reputation as well as to resolve his differences with the defendant, in neither of the exhibited letters did he complain of the announcement made on 19 July 2012 (as opposed to the decision which it heralded) nor of any damage done to his reputation.

The claimant told me that he did not send a letter before action. He says, however, that he served the claim form and Particulars of Claim on the defendant on 13 August 2013.

In the course of submissions, the claimant told me that after the announcement of 19 July 2012 there was a period during which he did nothing: he “retreated”, he said, to consider what had befallen him after his forty years of association with the Jehovah’s Witnesses. He also told me that after he learned of the cause of action on 29 June 2013, he waited for a meeting to take place, in the hope that the outcome would make it unnecessary to issue a claim form. (It is unclear to me why he expected there to be a meeting, since I cannot see that his letter of 17 June 2013 had asked for one, but I am prepared to accept that he did).

The claimant argued that the prejudice to him if the limitation period was not disapplied would be the loss of the chance to clear his name. He also made it clear that “until he was cleared by the court if found innocent”, as he put it, he would continue to suffer ostracism from the community of Jehovah’s Witnesses, as a direct result of the announcement made by the defendant. He explained that he had been shunned by the only community that he had known for 43 years, and that his own mother had not received him for over two years.

The defendant did not put in evidence on this application. It did not suggest that the delay in issuing proceedings had caused it any particular prejudice. Mr Daniel, counsel for the defendant, took his stand primarily on what he argued was the claimant’s failure to show a case for disapplying the limitation period. In particular, he contended that the claimant had known all the facts that made up his claim since the date of the announcement – the date and time of the announcement, the words spoken and those to whom they were published. Yet he made no complaint for a whole year.

I am unimpressed by the claimant’s assertion that he did not realise that he had a cause of action until 29 June 2013. He knew what had been said at the meeting on 19 July 2012, and he must have known what (on his case) it meant, namely that he was guilty of fraud and/or had remorselessly engaged in fraud, paedophilia, theft, fornication or drunkenness. He did not need legal advice to know that he had been the subject of what on his case was an exceptionally damaging allegation, and whether or not he knew that he had a claim in law, I would have expected him to complain of it. Yet he made no mention of the words now complained of in his letters to the defendant of 29 October 2012 and 17 June 2013, which were focused on his wish to be reinstated as a member. Indeed, it appears that he said nothing at all about his present complaint until he met representatives of the defendant on 22 July 2013.

In any event, he certainly learned of his cause of action (and of the applicable limitation period) on 29 June 2013, so s32A(2)(b) has no application here. His explanation for not issuing his claim form in the period of nearly three weeks which was still available to him is that he hoped to achieve a non-litigious resolution of his differences with the defendant and of his wish to restore his reputation, and he did not wish to issue until the meeting with the elders had taken place. In fact, there is no evidence that he even told the defendant until 22 July 2013 that he had a complaint about damage to his reputation. He also relies on the pressure of the hearing between 16 and 18 July. I find his explanation unpersuasive. He had plenty of time in which to issue a brief claim form well before the hearing of the Chancery application, and if he had wished to obtain vindication of his reputation by non-litigious means he would have informed the defendant of his complaint in slander as soon as he learned (as he says he did) that he had one. Otherwise he can have had no reasonable expectation that a meeting, whenever it was held, would resolve his slander complaint – only, at most, that it would resolve the separate matter of his expulsion from membership.

It is worth recalling the opinion of Sir Brian Neill’s Supreme Court Procedure Committee (Report on Practice and Procedure in Defamation, July 1991) at VIII.5: “We would not expect a plaintiff to receive much sympathy if no relevant complaint had been made within the relevant 12-month period”.

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.

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 applicant under section 32A.

Plainly, a refusal to disapply the limitation period prejudices the claimant, because it means that he cannot take steps to vindicate his reputation by means of slander proceedings. However, his failure to complain of the allegation for over twelve months, his focus in correspondence on gaining re-admission to membership of the defendant’s organisation, and the emphasis in his present claim on damage flowing not from the alleged slander but from the fact of his removal from membership, strongly suggest to me that his wish to vindicate his reputation is very much secondary to, and seen by him as a means to achieve, his primary goal of re-joining the Jehovah’s Witnesses. Moreover, Steel J suggested in Steedman at [29(2)] that it was relevant to take into account, in assessing the prejudice to the claimant in not being able to proceed, the strength of his case. By the same token, I take into account the fact that, had his claim proceeded, he would have faced what is prima facie a strong defence of qualified privilege. Indeed, it is the corollary of his innuendo meaning of guilt of fraud, which depends on special facts known to members of the defendant organisation, that – even if outsiders had been present when the announcement was made – only insiders – Jehovah’s Witnesses - would have understood the words in a defamatory sense.

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.

It is not suggested that the delay has any effect on the defendant’s ability to defend the claim. That is an important consideration – indeed, it is one that s32A(2)(c) expressly requires the court to have in mind - but it is far from decisive (see Steedman at [23]), and in the present case it seems to me to carry little weight.

In conclusion, I can find no sufficient reason to disapply the limitation period in this case, and the claimant’s application is dismissed. The consequence would appear to be that the action also falls to be dismissed, since the limitation defence is now bound to succeed, but I will hear submissions on what orders should follow.