| LIMITATION OF ACTION — Defamation — Accrual of cause of action — Anonymous libel — Discretion to extend time — Whether knowledge of identity of tortfeasor integral to cause of action accruing — Limitation Act 1980, ss 4A (as substituted by Defamation Act 1996, s 5), 32A (as inserted by Administration of Justice Act 1985), 32(1)(b)
Edwards v Golding and others
CA: Buxton, Wilson and Moses LJJ: 3 April 2007
In defamation cases knowledge of the identity of the tortfeasor was not an integral element required before a cause of action could be said to have accrued for the purposes of limitation.
The Court of Appeal so held when dismissing the appeal of the claimant, Stephen Edwards, from a decision of Tugendhat J sitting in the Queen’s Bench Division on 12 July 2006 granting the application of the third defendant, Nicholas Griffin, to set aside the order of Master Eyre of 1 September 2005 joining him as a defendant to defamation proceedings.
Tugendhat J found that the master had no jurisdiction, having erred in finding: (i) that the application to join was appropriate as opposed to starting a fresh claim; and (ii) that the issue of limitation was available to the third defendant as a defence to be raised at trial. After the master’s order the third defendant had in any event failed to file a defence and judgment in default was entered, later set aside by Tugendhat J. The claimant was said to have become aware more than one year after publication (being the prima facie defamation limitation period) of the identity of Nicholas Griffin as the author of the alleged defamatory article which had been published and circulated at a time when the claimant was standing for election as a councillor. On appeal, the claimant contended, inter alia, that the limitation period had not expired by the time of the master’s order because the cause of action had not fully accrued where he was unaware until later of the identity of the alleged tortfeasor.
BUXTON LJ said that where a party was joined to a defamation claim he was treated as having been a party from the commencement of the claim, so that joinder deprived him of any limitation defence otherwise available, and the master had erred as to that issue. Furthermore, there were distinct questions: (i) when did the cause of action accrue; and (ii) if such date fell outside the statutory one-year period, ought the court none the less to apply the discretion under s 32A of the 1980 Act so as to extend time? In defamation, the cause of action accrued on publication, and it was an objective question whether a cause of action had so accrued; but if a claimant failed to sue in time, s 32A relief might still be sought. As to the identity of the author of the alleged libel: the claimant asserted that there was only one authority supporting Tugendhat J’s finding that the identity of the tortfeasor was not an integral part of a cause of action, viz RB Policies at Lloyd’s v Butler [1950] 1 KB 76, and that the reasoning therein was inconsistent with observations of Rix LJ in Cressey v E Timm & Son Ltd [2005] 1 WLR 3926; but the latter case was distinguishable, and knowledge of identity was not required in a defamation case for a cause of action to accrue. Parliament had intended in such cases that the discretion to extend the limitation period should be available where appropriate; and the granting of a discretion was usually a better approach to such matters than use of rigid rules. Furthermore, Tugendhat J was right to have found no “deliberate concealment” for the purposes of s 32(1)(b) of the 1980 Act, and he was entitled, notwithstanding dicta in Collier v Williams [2006] 1 WLR 1945, paras 39–40, to rely on the set aside procedure within CPR r 3.1.7 when he set aside the default judgment.
WILSON and MOSES LJJ agreed.
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