England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION) sitting in CARDIFF
ON APPEAL FROM CARDIFF MERCANTILE COURT
(HIS HONOUR JUDGE CHAMBERS QC)

		Civil Justice Centre 2 Park Street Cardiff CF1 1E2 Thursday 9 May 2001

Introduction

1. LORD PHILLIPS, MR: The Claimant in this action ("Cornwall Gardens") is a property development company registered in the British Virgin Islands. It is controlled by a shareholder who is based in Singapore. The action arises out of a development under which Cornwall Gardens purchased, and converted into an hotel, an office block called Western House in Hangar Lane, West London.
2. To the west of Western House stand Gordon House and Wellington House. These properties consist principally of 68 flats, held on 999 year leases. The First Defendant, Garrard & Co, own the freehold reversion of those properties. The second defendant, Christie & Co, is a firm of surveyors and valuers which has acted for Garrard & Co.
3. Garrard & Co contend that Gordon House and Wellington House enjoy a right of way across the land behind Western House which, under the development, has become the car park of the hotel. (I shall, in future, refer to this land as "the car park"). Cornwall Gardens contend that no right of way exists and, in the action, seek a declaration to that effect. This appeal does not relate to that issue which remains to be resolved.
4. This appeal relates to a letter written on 4 March 1998 by Christie & Co, on behalf of Garrard & Co, to the planning authority, Ealing Borough Council ("Ealing"). In that letter Christie & Co asserted that Garrard & Co enjoyed a right of way over the car park which would render it impossible, without the consent of Garrard & Co, to satisfy certain of the conditions of the planning consent that had been given to Cornwall Gardens.
5. Cornwall Gardens claim that this statement was untrue and that it was made maliciously with the intent of extorting from Cornwall Gardens a substantial payment in order to procure Garrard & Co's consent to the development. Cornwall Gardens claim that by making this false statement the Defendants created problems with Ealing that delayed completion of the development and caused them to introduce an expensive valet parking scheme.
6. It is Cornwall Gardens' case that these facts gave rise to two independent causes of action: (i) malicious falsehood; and (ii) unlawful interference with rights.
7. On 20 July 2000, on an application by Christie & Co, His Honour Judge Chambers held:

(1)that the claim in respect of malicious falsehood was time barred under Section 4A of the Limitation Act 1980;

(2) that the claim in respect of unlawful interference with rights was also time barred under the principle in Letang v Cooper [1965] 1 QB 232, in that it was founded on the same facts as the claim in respect of malicious falsehood;

(3) that it was not an appropriate case to grant an extension of time pursuant to Section 32A of the 1980 Act; and thus

(4) that judgment should be entered for Christie & Co;

(5) that Cornwall Gardens should have permission to appeal.

8. Garrard & Co then followed the example of Christie & Co and applied for the same relief. Cornwall Gardens at this point filed evidence in support of an application for an extension of time pursuant to Section 32A. They also applied for permission to amend their statement of case to add claims in fraud and conspiracy to injure. The parties agreed that, on the limitation issues, judgment should be entered for Garrard & Co by consent, that Cornwall Gardens should have permission to appeal and that the application for permission to amend should be "adjourned to the Court of Appeal". On 8 December 2000 Judge Chambers so ordered by consent.
9. Cornwall Gardens now appeal against each of the orders made against them. The issue of whether the claims are time barred is a succinct issue which requires little by way of recital of facts. I must, nonetheless, set these out in a little detail as they bear on the question of whether the judge properly exercised his discretion in refusing to grant an extension of time for commencing proceedings, and on the question of whether Cornwall Gardens should be given permission to amend their claim.

The Facts

10. Cornwall Gardens completed the purchase of Western House on or about 3 March 1995. Edwards Geldard acted as their solicitors in connection with the purchase. Edwards Geldard advised that the Land Registry title of the property recorded a right of way across the car park. This was along the rear boundary of the land. The Registry title did not record in whose favour this right of way existed. Enquiries revealed that residents of Gordon House and Wellington House were driving to and fro across the car park, although not along the route recorded as a right of way on the Registry title. This information did not deter Cornwall Gardens from completing the purchase.
11. It seems that some of the residents of Gordon House and Wellington House became concerned that the development of Western House might prevent or interfere with the access that they were enjoying across the car park and made representations to Ealing about this. Ealing made it a condition of the grant of planning permission that Cornwall Gardens enter into an agreement with them under Section 106 of the Town and Country Planning Act 1990 to grant the residents of Gordon House and Wellington House a right of access across the car park.
12. Edwards Geldard were instructed to negotiate an appropriate agreement. By about the end of September 1996 the terms of this agreement had been agreed with Ealing. Under the agreement Cornwall Gardens covenanted to allow the residents of Gordon House and Wellington House access and egress, both vehicular and pedestrian, across the car park using the route along the rear boundary to Western House. That is the route recorded as a right of way on the Land Registry title.
13. Although the terms of the Section 106 Agreement had been agreed by about the end of September 1996, the agreement was not perfected until 10 April 1997, at which point detailed planning permission was granted by Ealing. The conditions to which this consent was subject included the following:

"6. The car parking spaces shown on the approved plan reference PL/002A received 24.1.96 shall be marked out on the site to the satisfaction of the Local Planning Authority, and these spaces shall thereafter be kept continuously available for car parking and shall not be used for any other purposes without the prior permission in writing of the Local Planning Authority."

14. The car parking spaces shown on the plan included spaces situated on that part of the rear of Western House which was the subject of the right of way which Cornwall Gardens had covenanted to grant in the Section 106 Agreement.
15. On 9 October 1996 Garrard & Co purchased Gordon House and Wellington House. They also purchased two adjacent buildings, Frobisher House and Nelson House.
16. As the development proceeded, Cornwall Gardens decided to allow the residents of Gordon House and Wellington House to continue to cross the car park on the alternative route to that which formed the subject of the Section 106 Agreement.
17. Garrard & Co then intervened, contending that they were entitled to insist on the use of the right of way recorded on the Land Registry title and that they were thus in a position to prevent Cornwall Gardens from complying with Condition 6 which would prevent the opening of the hotel. On 26 January 1998 they wrote to Edwards Geldard threatening to seek an injunction restraining Cornwall Gardens from interfering with the right of way.
18. Negotiations then ensued between Edwards Geldard and Garrard & Co which did not resolve the matter. Garrard & Co wrote to Ealing, drawing the dispute to their attention. This led Ealing to write on 2 March 1998 to Land Architects Limited (the architects supervising the hotel development) a letter which included the following warning:

"I refer to the proposed Holiday Inn at Western House. I know you are aware of the difficulties between your clients and the freeholders of Gordon and Wellington Houses over the right of way across the rear of the Holiday Inn site.

If these matters are not resolved in a mutually satisfactory manner beforehand and they open for business on this site, Holiday Inn will immediately be in breach of planning control because condition 6 of the planning permission requires that parking spaces shown on the approved drawing must be made continuously available. Some of these spaces are on the right of way and Holiday Inn may be prevented from using them by third parties.

This would result in a serious shortfall of on-site parking. The local planning authority could not ignore this and would have to consider legal action to enforce the condition. This might well force the hotel to close until the matter was sorted out with obvious effects on revenue.

In addition, unless you can resolve the right of way satisfactorily, it may not be possible for the Council to approve the traffic circulatory details under condition 11, because there is no certainty that your clients will be able to implement them. Until they are approved and laid out, the hotel may not open."

19. Edwards Geldard responded on the following day by letter which included the following passage:

"....our client does not dispute that the occupiers of the Flats have exercised a right of way through Western House and our clients have no wish to interfere with this. The issue is the extent and nature of what is exercised.

It was apparent at the time of our client's purchase that vehicular parking took place along the rear boundary of the Property. The area had been laid out and marked for such parking at least from the time that the Property was used as offices.

The current layout for parking and traffic movement is a restatement of that previous position. Therefore, the occupiers of the Flats will continue to have the ability to exercise a right of way as previously enjoyed.

Condition 6 of planning permissions SCA/TPE 00122/8 acknowledges the parking layout. It does not provide for the layout to be further approved by your authority, merely that marking out shall be satisfactory."

20. A copy of this letter was sent to Garrard & Co. On their instructions, Christie & Co sent a reply on 4 March 1998 which stated:

"Thank you for forwarding me a copy of your letter of 3 March 1998 to Ealing Planning and Surveying Service in respect of the above.

The position as you have set out to them is inaccurate in respect of the right of way at the rear of Western House and I am surprised that you have written to the London Borough of Ealing in this vein.

The conveyance dated 1 April 1937 between Ardsley Estates Limited and J D Thackray reserved '....unto the Vendors their predecessors and successors in title and assigns owners or occupiers of the adjoining or neighbouring land or any part thereof in common with the Purchaser... the full and free right of way for all purposes over and along that part of the said land hereby conveyed which is coloured blue....' The conveyance shows the exact line of the right of way and its width. It provides all the detail necessary to identify the '....extent and nature of its use....' and is the '....documentary evidence of these matters....', as you put it in your letter.

We have made the Ealing's Planning and Surveying Service and Legal Departments aware of the 1937 Conveyance and should you also require a copy please let me know.

We have therefore informed Ealing that the issue is not '....the extent and nature of what is exercised' and that my client is prepared to serve an injunction to preserve their legal right of way.

Furthermore this issue is not just a matter of the right of way enjoyed by our client. The assessment of reasonable consideration for the proposal put to your clients has also taken into consideration other issues which are of equal importance. These include .... the legal inability of your clients to establish the traffic circulation system required by the planning conditions. I note that you have not addressed any of these issues.

For my part I am happy to discuss quantum with your hotel valuation advisors but my client requires a response today to my letter to you dated 23 February 1998.

Finally whilst writing I have just been informed that the contractors have marked out the car parking spaces on the right of way and my client is giving them a limited opportunity to remove the markings.

If these are not removed and a meaning[ful] dialogue does not commence today my clients will take the necessary legal steps, with all the unnecessary [sic] ramifications that this implies, to fully protect their position."

21. The letter on which Cornwall Gardens now found their claims was written on the same day, 4 March 1998, by Christie & Co, acting on behalf of Garrard & Co. This letter was written to Ealing and said:

"I very much appreciate Ealing Borough Council making it clear to Land Architects that the problems associated with conditions 6 & 11 required the agreement of our client who are the freeholders of Frobisher House, Gordon House, Nelson House and Wellington House, situated immediately to the west of Western House, because, inter alia, their rights over the land proposed to be used to [sic] car parking would be infringed.

Mr Davies of Edwards Geldard has now written to you contending that such rights do not exist. Our client will today furnish Mr Davies with the necessary documentation regarding the rights of way at the rear of Western House. I have also asked our client to send a copy of [sic] Ms Harris for information. While I would agree that it is not for Ealing to be drawn into a legal dispute between our client and Cornwall Gardens PTE Ltd, regarding the rights, it is important for you to be aware that unless the issues between the parties are resolved this week our client intends to seek an injunction to protect his position, which will prevent the implementation of conditions 6 & 11.

However, time is now short as I understand that Holiday Inn intend to open the hotel on the 11th March, despite the fact that the issues relating to these conditions remain unresolved. In this situation, our client are (sic) now looking to Ealing to use its powers under the Planning and Compensation Act 1991 to deal with anticipated breaches of control, by applying to the High Court for an injunction to secure such restraint. The aim of this action should be to prevent the hotel opening until matters are resolved to everyone's satisfaction."

Cornwall Gardens pleaded Case

22. Cornwall Gardens' Statement of Case includes two sections, one of which is headed "Malicious falsehood" and the other of which is headed "Wrongful interference with rights".

The claim for malicious falsehood

23. Cornwall Gardens originally claimed in their Statement of Case that the first letter written by Christie & Co on 4 March 1998 had been copied to Ealing and had made the following statements which were untrue.

"that the conveyance dated 1st April 1937 between Ardsley Estates Limited and J D Thackray granted a right of way over the area coloured blue in favour of the freehold proprietors of Gordon House and Wellington House

that the effect of the conveyance dated 1st April 1937 was to create a legal easement over the area coloured blue in favour of the freehold proprietor of Gordon House and Wellington House notwithstanding the freehold titles to those properties and Western House at HM Land Registry does not disclose any such right to interest."

24. Cornwall Gardens have now withdrawn the allegation that this letter was sent to Ealing. The Statement of Case contained a Statement of Truth signed on behalf of Cornwall Gardens by their solicitors. No explanation has been given to us as to why it contained this untrue allegation. Indeed, we were not even informed of this until counsel for the second respondent addressed us.
25. Cornwall Gardens claimed that the second letter written by Christie & Co made the following statements which were untrue:

"that [Garrard & Co] were the legal proprietor of Frobisher House and Nelson House

that [Garrard & Co] as the legal proprietor of the freehold reversions of Gordon House and Wellington House had legal rights over the area coloured blue at the rear of Western House which would be infringed if the area was used for car parking

that consequently the implementation of planning conditions 6 & 11 required the agreement of [Garrard & Co]

that [Garrard & Co] was entitled at law to injunctive relief to prevent the implementation of planning conditions 6 & 11."

26. Cornwall Gardens have now withdrawn the allegation that the statements made as to their ownership of Frobisher House and Nelson House were untrue. Again, no explanation has been given to us as to why these untrue statements were included in the Statement of Case. The allegations made were serious allegations of fraudulent behaviour and it is a matter of concern to this court that they were made when it is now accepted that they are without foundation.
27. Cornwall Gardens claim that the statements in the second letter of 4 March were made maliciously, as (I quote from the Statement of Case) "without just cause or excuse". They allege that the motive for making those statements was not to protect the rights of the residents of Gordon House and Wellington House, but, in effect, to extort a substantial payment from Cornwall Gardens for the release of the alleged rights.

The claim for wrongful interference with rights

28. This claim was also based on the two letters of 4 March 1998 and, thus, is now founded solely on the second letter which was sent to Ealing. Cornwall Gardens plead that the respondents knew that the consequence of the allegedly false statements made in that letter would be that Ealing would refuse detailed planning consent required for the opening of the hotel. It is alleged that this consequence in fact followed, with the result that:

(i)Cornwall Gardens had to introduce a valet parking scheme and obtain planning permission approving this;

(ii)pending the approval of the valet parking scheme Cornwall Gardens were unable to satisfy their contractual obligation to hand over the hotel to Holiday Inns;

(iii) the opening of the hotel was delayed until 31 August 1998;

(iv)the expense of operating the valet parking scheme has continued to this day.

Subsequent Events

29. It seems that Cornwall Gardens decided that the events that I have described were attributable to the fault of their solicitors. They failed to pay Edwards Geldard's account. On 15 January 1999 Edwards Geldard commenced proceedings claiming their outstanding fees. In February 1999 Cornwall Gardens instructed Simon & Simon to act for them. Mr Paul Simon of that firm has provided a witness statement, dated 20 November 2000, in which he provides some details of the information he received. I shall revert to this statement in due course. At present it is sufficient to note that on 2 June 1999 Cornwall Gardens filed a Statement of Case containing a Part 20 claim (a cross-claim) against Edwards Geldard. That claim alleged breaches of duty, which I can summarise as follows:

(1)Failing to give adequate advice on title in relation to the question of whether or not there was a right of way.

(2) Failing to advise on the implications of the right of way in the context of the proposed development.

(3) Negotiating the Section 106 Agreement on terms that were incompatible with Clause 6 of the planning permission.

30. The cross-claim between Edwards Geldard and Cornwall Gardens was tried by Judge Chambers, but not all the allegations of negligence were pursued. On 16 June 2000 he gave judgment on the cross-claim in favour of Edwards Geldard.
31. Are the claims time-barred?
32. Section 4A of the Limitation Act 1980 provides:

"The time limit under section 2 of this Act shall not apply to an action for-

(a) libel or slander, or

(b) slander of title, slander of goods or other malicious falsehood,

but no such action shall be brought after the expiration of one year from the date on which the cause of action accrued."

33. This action was started on 19 January 2000. The cause of action accrued on 4 March 1998, so the action was started some 10 months out of time. Cornwall Gardens accept that, unless the Court grants an extension of time, their claim for malicious falsehood is time barred. They contend, however, that they have an independent cause of action, namely, unlawful interference with their rights, which is subject to the six-year time limit on bringing actions in tort.
34. The respondents contend that the claim pleaded under the head "wrongful interference with rights" is the same claim that Cornwall Gardens advance under the head "malicious falsehood". They contend that it falls within the description "slander of title, slander of goods or other malicious falsehood" in Section 4A of the Limitation Act. Consequently, it is time barred.
35. The respondents put at the forefront of their case the analysis of the nature of a cause of action of Diplock LJ in Letang v Cooper. That case also involved limitation. The Plaintiff had been sunbathing in a car park when the defendant drove over her an injured her. The Law Reform (Limitations of Actions) Act 1954 provided by Section 2 that:

"....in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years."

36. So the section provided, in the circumstances specified, a three-year limitation period. The action in Letang v Cooper was commenced outside that period, but the plaintiff contended that she could bring a claim in trespass to the person which fell outside the section and was consequently not subject to the three-year limit. The Court of Appeal rejected that contention. Diplock LJ said at page 242:

"A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. Historically, the means by which the remedy was obtained varied with the nature of the factual situation and causes of action were divided into categories according to the 'form of action' by which the remedy was obtained in the particular kind of factual situation which constituted the cause of action. But that is legal history, not current law. If A, by failing to exercise reasonable care, inflicts direct personal injury upon B, those facts constitute a cause of action on the part of B against A for damages in respect of such personal injuries. The remedy for this cause of action could, before 1973, have been obtained by alternative forms of action, namely, originally either trespass vi et armis or trespass on the case, later either trespass to the person or negligence: (see Bullen & Leake, Precedents of Pleading, 3rd ed (1868)). Certain procedural consequences, the importance of which diminished considerably after the Common Law Procedure Act, 1852, flowed from the plaintiff's pleader's choice of the form of action used. The Judicature Act, 1873, abolished forms of action. It did not affect causes of action; so it was convenient for lawyers and legislators to continue use, to describe the various categories of factual situations which entitled one person to obtain from the court a remedy against another, the names of the various 'forms of action' by which formerly the remedy appropriate to the particular category of factual situation was obtained. But it is essential to realise that when, since 1873, the name of a form of action is used to identify a cause of action, it is used as a convenient and succinct description of a particular category of factual situation which entitles one person to obtain from the court a remedy against another person. To forget this will indeed encourage the old forms of action to rule us from their graves."

37. At page 244 Diplock LJ continued:

"The factual situation upon which the plaintiff's action was founded is set out in the statement of claim. It was that the defendant, by failing to exercise reasonable care, of which failure particulars were given, drove his motor car over the plaintiff's legs and so inflicted upon her direct personal injuries in respect of which the plaintiff claimed damages. That factual situation was the plaintiff's cause of action. It was the cause of action for which the plaintiff claimed damages in respect of the personal injuries which she sustained. That cause of action or factual situation falls within the description of the tort of negligence and an action founded on it, that is, brought to obtain the remedy to which the existence of that factual situation entitles the plaintiff, falls within the description of an action for negligence. The description 'negligence' was in fact used by the plaintiff's pleader; but this cannot be decisive for we are concerned not with the description applied by the pleader to the factual situation and the action founded on it, but with the description applied to it by Parliament in the enactment to be construed. It is true that that factual situation also falls within the description of the tort of trespass to the person. But that, as I have endeavoured to show, does not mean that there are two causes of action. It merely means that there are two apt descriptions of the same cause of action. It does not cease to be the tort of negligence because it can also be called by another name. An action founded upon it is nonetheless an action for negligence because it can also be called an action for trespass to the person."

38. Not all of Diplock LJ's judgment in Letang v Cooper has survived unscathed (see Stubbings v Webb [1993] AC 498 at 507). The passages that I have read have, however, become a classic and oft-cited piece of English jurisprudence. Mr Duncan Macleod, for Christie & Co (whose submissions were adopted by Mr Simon John, for Garrard & Co), has submitted that they are directly in point. His submission is that "malicious falsehood" and "wrongful interference with rights" are two apt descriptions of the facts of this case which constitute a single cause of action that falls fairly and squarely within Section 4A of the 1980 Act as "other malicious falsehood".
39. For Cornwall Gardens, Mr John Blackmore has advanced submissions which I can summarise as follows:

(1)Wrongful interference with rights is an innominate and developing tort.

(2)The elements of that tort are not the same as those of the tort of malicious falsehood.

(3)To establish a cause of action for wrongful interference with rights, a Claimant must prove:

(i)an intentional unlawful act;

(ii)done by the Defendant with the intention of harming the Claimant; and

(iv)in fact causing damage to the Claimant.

40. Mr Blackmore submitted that, although in the present case the intentional unlawful act was a malicious falsehood, it could just as well have been some other unlawful act which was not itself actionable at the suit of the Claimant. he further submitted that, while there was no requirement to prove damage in order to establish a cause of action in malicious falsehood, damage was an essential element of the cause of action of wrongful interference with rights.
41. In support of his submissions as to the nature of the cause of action of wrongful interference with rights, Mr Blackmore referred us to a number of cases dealing with tortious conspiracy. He argued that the elements of the two torts were very similarly, if not the same, referring us to Lonrho v Fayed [1992] 1 AC 448 and, in particular, to the observations of Lord Bridge at page 469.
42. In support of his submission that the unlawful means need not be actionable at the suit of the Claimant, Mr Blackmore referred us to the following observations of Waller LJ in Surzur v Koros [1990] 2 Lloyd's Rep 611 at 617:

"The history of Lonrho v Fayed and the points in issue in that case could be said to give further support to the argument that unlawful means has the same meaning in the unlawful conspiracy context as in the interfering with business by unlawful means context and further support for the view that in either of those contexts the unlawful means do not have to be actionable at the suit of the plaintiff."

43. I accept that there is a developing area of tortious liability that falls within the generic description of "wrongful interference with rights". I accept that this description can embrace facts which would not form the basis of a claim falling within the long established cause of action of malicious falsehood. Equally, however, it seems to me that "wrongful interference with rights" is a description which can aptly apply to facts which constitute the tort more conventionally described as "malicious falsehood".
44. Chapter 23 of the 18th edition of Clark & Lindsell on Torts, which deals with malicious falsehood, opens as follows:

"Nomenclature. This tort attracts different names. In part this is due to the possible range of falsehoods concerned. It originated from 'slander of title', false allegations calculated to hamper the disposal of land. However, it developed, by analogy, to encompass 'slander of goods' and eventually disparagements as to quality as well as title were included. In Ratcliffe v Evans [1892] 2 QB 524, the Court of Appeal decided that the tort could apply to falsehoods calculated to cause and causing actual damage to a business. Thus, this tort can be labelled:

*injurious falsehood;

*trade libel;

*slander of title;

*slander of goods;

*disparagement of goods; or

*malicious falsehood.

The Defamation Act 1952 describes this wrong by the formula 'action for slander of title, slander of goods or other malicious falsehood'."

45. Mr Macleod submitted that one could add to Clark & Lindsell's list "wrongful interference with rights". While that description is too broad to identify the specific elements that comprise the tort of malicious falsehood it is, as I have indicated, a description which accommodates the elements of malicious falsehood.
46. Parliament has chosen, by Section 4A of the 1980 Act, to impose a 12 months' time limit on claims based on facts which fall within the description "libel, slander or other malicious falsehood". If the facts alleged by Cornwall Gardens as giving rise to their claim for relief under the head of "wrongful interference with rights" are facts which fall within the description "other malicious falsehood", they are subject to that limit, even though Mr Blackmore in his pleading has chosen to give them a different label and even though that label is an appropriate alternative description.
47. Mr Blackmore argues that the facts pleaded under the head "wrongful interference with rights" are not the same as the facts which give rise to the claim for malicious falsehood in that the former include, as they must, allegations of damage. There is, indeed, no other distinction between the facts pleaded in support of the claim for malicious falsehood and those pleaded in support of the claim for wrongful interference with rights. Does the additional element of special damage mean that there is a second cause of action distinct from and not aptly described as malicious falsehood?
48. In Ratcliffe v Evans the issue was whether the Plaintiff had to prove special damage in order to establish a cause of action for a false and malicious publication about his trade and business. The conclusion of the Court of Appeal is accurately summarised by the headnote at page 524:

"In an action for words not actionable per se, but constituting an untrue statement maliciously published about the plaintiff's business, which statement is intended or reasonably likely to produce, and in the ordinary course of things does produce, a general loss of business as distinct from the loss of particular known customers, evidence of such general loss of business is admissible, and sufficient to support the action."

49. In 1952 the Defamation Act provided:

"2. In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.

3. (1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage-

(a)if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or

(b)if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication."

50. In consequence of these provisions there is no need to allege or prove special damage to establish a cause of action for the specified categories of malicious falsehood. The cause of action is complete once the malicious falsehood has been published. It does not follow, however, that where special damage is occasioned, the tort ceases to constitute the cause of action described as malicious falsehood. One has only to state the proposition to appreciate that it is absurd.
51. For these reasons I am in no doubt that the facts pleaded under the head "wrongful interference with rights" are facts which properly fall within the description of "other malicious falsehood" in Section 4A, and that the claim in this action is subject to the 12 months' time limit imposed by the section. Judge Chambers was correct in so deciding.

Discretion to extend time

52. Section 32A of the Limitation Act 1980 provides:

"Discretionary exclusion of time limit for actions for defamation or malicious falsehood

(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 that if the action had been brought within the period mentioned in section 4A."

53. On the hearing of Christie & Co's application, Judge Chambers considered an application for an extension of time under this section and rejected it. He remarked on the fact that he had no evidence from either party bearing on the exercise of his discretion and decided to proceed upon the basis that Cornwall Gardens' pleaded reply to Christie & Co's reliance on Section 4A constituted evidence.
54. So far as Christie & Co's application is concerned, it would not be right to interfere with Judge Chambers' decision unless we were persuaded that he had erred in principle. The position is less clear so far as concerns Garrard & Co's application.
55. Cornwall Gardens filed evidence in support of their invocation of Section 32A in answer to Garrard & Co's application, and Garrard & Co have filed evidence in response. This evidence was not considered by Judge Chambers. He made a consent order in favour of Garrard & Co, leaving it to this Court to consider the evidence filed. Should we approach Cornwall Gardens' appeal on the basis that Judge Chambers has exercised his discretion against extending time in respect of both their claims, or should we exercise our own unfettered discretion in relation to the claim against Garrard & Co? These questions only arise should we be minded, having considered the evidence, to reach a different decision from that reached by Judge Chambers in relation to the claim against Christie & Co. I propose to proceed pragmatically by considering that question first.
56. The reasoning that led Judge Chambers to decline to extend time under Section 32A is set out at pages 32 to 34 of his judgment, which reads:

"Section 32A contains a non-exhaustive list of the matters to which the Court should have regard in considering how to exercise its discretion. Section 32A(2)(a) reads as follows:

'In acting under this section the courts [sic] should have regard to all the circumstances of the case and in particular to the length of and reasons for the delay on the part of the plaintiff.'

It seems to me that this requirement is no more than confirmatory of the fact that where a party to proceedings has put itself in a position by its own conduct that it requires the discretion of the Court to be exercised in its favour to be allowed to continue in those proceedings it must proffer an explanation to the Court as to how the state of affairs has arisen. This may happen in default proceedings where a party seeks to be allowed to defend after judgment has been entered against him. It may happen where a party has failed to comply with an order and wishes to be relieved from the consequences of failure to comply with that order. It seems to me that the principle is similarly applicable to a situation such as this. The Court is being asked to apply its discretion in favour of a party who would otherwise suffer the consequences of being statute barred. I have before me no good reason as to why there was delay on the part of Cornwall Gardens in starting these proceedings.

Mr Blackmore has done his best in his outline argument and has referred to other matters such as the fact that there was other litigation afoot, and also there was a need to clarify the situation as far as parking and planning permission were concerned. But of itself and without explanation there is no reason why, in parallel with such matters, there should not have been a preparation of this case so that it could have been brought in time.

Another factor that weighs with me is the very short period provided by section 4A as a limitation period in respect of malicious falsehood. I do not think it relevant to look at any history behind the introduction of section 4A. I think it quite sufficient to look at section 4A alone in the context of the other periods of limitation which are provided under the Act. One year is to be contrasted with three years in respect of personal injuries and six years in respect of matters such as breach of contract. It is therefore clear that, looking at the Act alone, the expectation is that proceedings of this nature will be brought promptly. It therefore seems to me that when considering the length of delay one should look at the delay in relation to the length of the limitation period. Ten months might, in appropriate circumstances, not seem terribly much in relation to a three-year limitation period, but in relation to a 12-month limitation period it is a lengthy delay.

In those circumstances it seems to me entirely in accordance with the spirit and the underlying principle of the Act that I should require very good reason to permit an action to proceed where there has been a delay of this nature. There is no such reason. In the circumstances it seems to me that it would be wholly inappropriate to exercise my discretion in favour of Cornwall Gardens. It is correct that prejudice is a relevant factor but it is only a factor amongst others. So far as those other factors are concerned, they quite simply have not been addressed. I do not have the material before me upon which I could properly exercise my discretion in favour of Cornwall Gardens, the burden being upon Cornwall Gardens to make good its application for the exercise of that discretion. It follows that that application must fail."

57. Earlier, at page 31, the judge had addressed a submission made by Mr Blackmore that the delay should be excused because of the dislocation resulting from Cornwall Gardens change of solicitors. He commented:

"I cannot think that, without being told more about the circumstances of the dislocation, any change in solicitors is to be regarded as a relevant component in my considerations. It could have been a relevant component had I been told of the degree of dislocation, but I know nothing about the change. For all I know it might have been a very smooth change."

58. I turn to the evidence that has been filed on behalf of Cornwall Gardens in an attempt to explain the delay in issuing proceedings. This takes the form of the witness statement made on 20 November 2000 by Mr Paul Simon, to which I have referred. He states that he has reviewed the files and goes on to put in evidence material, of which some was plainly privileged. In essence this amounts to the following:

(i)between March and August 1988 Cornwall Gardens' solicitors, Edwards Geldard, were busy considering whether Garrard & Co's claim to a right of way was sound in law and attempting to negotiate a settlement with them.

(ii) Edwards Geldard did not advise Cornwall Gardens that they had a claim against Garrard & Co and/or Christie & Co for malicious falsehood.

(iii) Simon & Simon were instructed in February 1999 and did not obtain complete files from Edwards Geldard until December 1999, which included the letters of 4 March. Only then were Cornwall Gardens advised to commence proceedings for malicious falsehood and wrongful interference with rights.

59. It does not seems to me that this evidence significantly advances Cornwall Gardens' case. The evidence before us now clearly shows that both Cornwall Gardens and their solicitors were aware from the outset that Garrard & Co, through Christie & Co, were asserting to Ealing that, as owners of the freehold of Gordon House and Wellington House, they enjoyed the right of way recorded over the car park and urging Ealing not to permit user inconsistent with that right of way. The explanation for the failure to commence proceedings amounts to no more than the fact that Edwards Geldard did not consider that there was a claim that should be advanced. Assuming (and I emphasise that this is no more than an assumption) that they were wrong about this, I do not consider that Cornwall Gardens can properly pray in aid the shortcoming of their own solicitors; indeed Mr Blackmore has not sought to argue to the contrary.
60. Mr Blackmore did urge that the delay had caused the respondents no prejudice, whereas shutting out Cornwall Gardens' claims would occasion them very great prejudice. This submission requires one to form a provisional view of the strength of Cornwall Gardens' case. I have formed such a view.
61. To establish their case of malicious falsehood, Cornwall Gardens must prove not merely that Gordon House and Wellington House were not the dominant tenants that owned the right of way over the car park, but that Garrard & Co and Christie & Co knew that their claim to the contrary could not be sustained or were, at least, recklessly indifferent to whether it could or not. The considerable body of evidence that is now before the Court lends no weight to that assertion.
62. When Garrard & Co acquired Gordon House and Wellington House, the tenants of those properties appeared to be exercising a right of way over the car park. A right of way over the car park, although not along the same route, was shown on the registered title of Western House. Cornwall Gardens had negotiated a Section 106 Agreement with Ealing under which they covenanted to allow the tenants of Gordon House and Wellington House to traverse the car park along the route of the right of way in vehicles and on foot. Garrard & Co have produced a conveyance dated 1 April 1937 which, so it seems to me, raises at least an arguable case that the benefit of the right of way was transferred to their predecessors in title as owners of the land adjacent to Western House.
63. In these circumstances, it is not apparent to me that Cornwall Gardens is in a position to substantiate the allegation that Garrard & Co's assertion of title to the right of way, made through the agency of Christie & Co, involved malicious falsehood on the part of either of them.
64. Having regard to those considerations, I would exercise my discretion in the same way as did Judge Chambers for the reasons that he has given. In consequence, I would dismiss Cornwall Gardens' appeal against the refusal of the judge to extend time in relation to each of the two claims.

The application to amend

65. The application to amend Cornwall Gardens' statement of case was, by consent, adjourned to this court as, so we were informed, there was insufficient time for it to be considered on the occasion when the application was listed for hearing below. The overriding objective of the new rules is intended to give more flexibility to procedure and the course adopted might be thought to accord with that objection. It is not, however, in general desirable that matters should be reserved for consideration by this court on which there has been no ruling by the court below.
66. The first proposed amendment adds to the pleading under the heading "wrongful interference with rights" the following averment in relation to the statements in the letter of 4 March:

"the statements were fraudulent in that they were made recklessly not caring whether the statements were true or false. The particulars set out in paras 17.1 to 17.8 (inclusive) above are repeated."

67. Mr Blackmore insisted that the object of this and the second amendment was not to evade the effect of Section 4A of the 1980 Act, although it might incidentally achieve that result. He also submitted that the allegation added to the statement of case an element not implicit in the plea made under the head of malicious falsehood.
68. I do not consider that the proposed amendment adds anything to that plea, save perhaps to make it plain that the nature of the malicious falsehood alleged is reckless indifference to truth rather than deliberate untruth. Certainly, the addition does not produce the result that the facts pleaded under the head "wrongful interference with rights" differ from those properly described as "malicious falsehood". I would not allow this application to amend.
69. I would add this. The General Council of the Bar has recently issued guidance for counsel following the decision of this court in Medcalf v Mardell (24 November 2000). That guidance includes the following passage:

"Accordingly, before settling any document containing any allegation of fraud (or allegation of a similar nature) you should satisfy yourself not only that you have clear instructions to make the allegation but that the 'material' upon which it is based amounts to evidence in a form which can be put before the Court. In particular, where the material relied on includes the evidence of any witness you should insist on being provided with a signed statement from the witness which is capable of being served.

Further, if it becomes clear at any later stage of the proceedings that evidence on which you relied has not been or is not going to be put before the Court (for example because a witness has retracted a statement that he gave), you should on no account maintain the allegation and should ensure that the other side is informed at once that the allegation is not being pursued."

70. I would endorse that guidance and emphasise that it applies to an allegation of malicious falsehood. The merits of that plea have not and will not be determined in this case, but I have indicated my reservations as to whether there exists material which justifies the making of this serious allegation.
71. The other proposed amendment seeks to add the following plea of tortious conspiracy.

"33B.1 Paragraphs 3 to 33 above are repeated.

33B.2In the first part of 1998 ROGL and Christie agreed to procure Ealing not to grant planning consent to CGPL by falsely claiming that ROGL had a right to a legal easement over the area coloured blue.

33B.3The purpose of the agreement was to prevent CGPL fulfilling its obligations to Holiday Inn under the Management Contract unless CGPL paid ROGL for the release of the alleges rights which ROGL claimed over the area coloured blue."

72. If this application were allowed, it would open the door to an argument that the alleged conspiracy differed from the cause of action in malicious falsehood and was not subject to the 12 months' time bar. Such an argument could be founded on the decision of this court in Kuwait Oil Tanker Co SAK v Bader [2000] 2 All ER 271. In that case the Court held that, where an unlawful means conspiracy involves conspiracy to commit a tort, the conspiracy does not merge in the tort and the Claimant is not precluded from alleging both the conspiracy and the tort (see in particular the judgment of Nourse LJ at page 317).
73. Mr Blackmore did not base his application to amend on an argument that the amendment would add a claim that was not time barred, and I do not purport to decide whether or not it would do so. The fact that it might do so does, however, render apposite the comment made in Kuwait Oil by Nourse LJ at page 316 that "a party must not obtain an illegitimate advantage by alleging a conspiracy".
74. In the present case the addition of a plea of conspiracy would add nothing of significance to the facts already pleaded. It would be contrary to the spirit of Section 4A of the 1980 Act if, in this case, such a plea resulted in the evasion of the 12 months' limitation period. If the proposed amendment produced that result, it would be an illegitimate advantage. For that reason, I would not allow the amendment.
75. For the reasons I have given, I consider that this appeal should be dismissed.
76. LORD JUSTICE CHADWICK: I agree.
77. LORD JUSTICE PILL: I also agree.
Order: Appeal dismissed with costs to be subject to detailed assessment if not agreed. (Order does not form part of approved judgment)