England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(JUDGE HEPPEL Q.C.)

		Royal Courts of Justice Strand London WC2 Thursday, 17th May 2001

Thursday, 17th May, 2001

1. LORD JUSTICE KEENE:This is an application for permission to appeal from the order of his Honour Judge Heppel Q.C., sitting as a Deputy High Court Judge at Sheffield, the order being made on 18th January 2001 together with an application for disclosure. By his order, the judge dismissed the appellant's claim for defamation and malicious falsehood and gave summary judgment for the respondents, who were the defendants.
2. The basis for the judge's decision can be summarised as follows:

1. that the claim was statute-barred under section 4A of the Limitation Act 1980;

2. that there were no grounds for the court to exercise its discretion under section 32A of the 1980 Act to allow the action to proceed nonetheless; and

3. that in any event the claim had no prospects of success and ought to be struck out under section 8 of the Defamation Act 1996.

3. The appellant had alleged that the respondent maliciously made false statements about him in the course of certain disciplinary proceedings in connection with his employment by Sheffield City Council. Those proceedings in due course led to the appellant's dismissal. The defamation claim was based principally on a statement made by Mr. Michael Westney about the appellant at a time when both of them were employed as caretakers by the City Council on a housing estate.
4. Mr. Westney was interviewed by management representatives on 29th July 1997 in connection with possible disciplinary procedures in respect of the appellant. As a result, a witness statement was produced which Mr. Westney signed on 8th August 1997. In it he made a number of statements about the appellant which were, on the face of them, defamatory, although not necessarily actionable. I emphasise the latter because of course there may be a number of possible defences even when defamatory statements are made about a person.
5. However, these proceedings were not commenced until June of 2000. In the meantime, solicitors had written on behalf of the appellant on 22nd August 1997, warning Mr. Westney about oral statements made by him in early July concerning the appellant. Then, in early February 1998, the appellant's wife, Mrs. Wilson, wrote to the second respondent, Mrs. Westney, making clear reference to the witness statement of 8th August 1997 to which I have referred.
6. In due course the appellant was dismissed. He took his case to an employment tribunal which took place in January 2000. It is unclear whether, and if so in what circumstances, the witness statement of Mr. Westney dated 8th August 1997 was put before the employment tribunal; but the judge below was prepared to assume that it was indeed put before the tribunal.
7. The judge found that the claims were time-barred because of section 4A of the Limitation Act 1980. That section imposes a one-year limitation period on actions for libel, slander and malicious falsehood from the date when the cause of action arose. These proceedings were clearly well outside that period of time in respect both of the oral interview in July 1997 and the witness statement of August 1997.
8. The judge considered an argument that the defamatory statements were repeated in January 2000 before the employment tribunal. However, he rejected that argument, holding that evidence put before such a tribunal was absolutely privileged. He then went on to consider the power given to the court by section 32A of the Limitation Act with particular reference to the factors set out in sub-section (2) of that section. He could find no adequate explanation for the delay, especially given the evidence of knowledge on the part of the appellant and his wife at least by February 1998 of the statements in question. The judge also noted that, if the action were allowed to proceed, the trial would be likely to take place at least four years after the date of the defamatory statements being made with consequential effects on the cogency of the evidence. Finally, he observed that there were shortcomings in the pleadings, particularly in relation to the pleading of malice, and that, looked at in the round, there was no reasonable prospect of success so that it was not equitable for the action to proceed.
9. This afternoon Mrs. Wilson, who I have allowed to speak on behalf of her husband, has raised a number of points which she contends should persuade me to grant permission for an appeal to the Court of Appeal. First it is said that the hearing was biased, one-sided and fundamentally flawed. The basis for that allegation is not so much, as I understand it, that the judge himself was biased but rather that the parties were not on an equal footing because the defendants were funded by Sheffield City Council. Secondly it is said that Mr. Wilson was unfairly treated and humiliated during the disciplinary proceedings and that a number of witnesses were not called. Thirdly Mrs. Wilson dealt with the question of the delay in beginning these proceedings. She emphasised that her husband was involved in the disciplinary process with the Sheffield City Council which went on for a considerable time, being taken, as I have indicated already, to an employment tribunal, and thereafter, as I understand it, to the Employment Appeal Tribunal. It is said that the appellant felt that he should exhaust those processes before starting his action for defamation and malicious falsehood against Mr. and Mrs. Westney.
10. Mrs. Wilson emphasises that her husband has suffered great stress in these proceedings and submits in essence that the court should exercise its powers under section 32(A) to allow the action to proceed, notwithstanding the provisions of section 4A to which I have referred.
11. It seems to me that the judge's conclusion that any use of the witness statement before the employment tribunal would have been covered by absolute privilege was clearly right. It is quite clear that an employment tribunal operating under the Employment Tribunals Act 1996 is a tribunal exercising judicial functions and acting in a manner similar to that in which a court of justice acts. That makes it a body in respect of whose proceedings absolute privilege applies (see the decisions in Trapp v. Mackie [1979] 1 W.L.R. 377, and Copartnership Farms v. Harvey-Smith [1918] 2 K.B. 405 at 408).
12. I deal with that aspect first because that means that the only cause of action in defamation or malicious falsehood arose at the latest on 8th August 1997 with that publication of the defamatory statements. Once one gets to that position, the proceedings had to be commenced within one year because of the provisions of section 4A of the Limitation Act. In fact they were not started until two years and 10 months after the publication. That was, moreover, after some two and a half years at least beyond 27th January 1998 when the appellant and his wife clearly knew of the existence and content of the witness statement of August 1997. So they were, on the face of it, time-barred.
13. The only real issue, and it is one to which it seems to me Mrs. Wilson's submissions this afternoon have gone, is whether the court should have exercised its discretion under section 32A, bearing in mind the tests set out in sub-section (1) and the factors set out in sub-section (2). One of the matters which rightly influenced the judge was the length of the delay and what he saw as the lack of any adequate explanation for it. It is quite clear that Parliament intended that proceedings of this kind should be commenced quickly for obvious reasons. As I have indicated, this afternoon Mrs. Wilson has sought to explain the delay on the basis that her husband considered that he should proceed with the disciplinary processes under the auspices of Sheffield City Council before he began his civil suit against Mr. and Mrs. Westney.
14. It seems to me that that cannot provide any proper explanation for the delay which occurred here. The disciplinary processes of Sheffield City Council as Mr. Wilson's employer had and have nothing to do with the bringing of a civil claim for damages against Mr. and Mrs. Westney. There was no need whatsoever to await the outcome of those disciplinary proceedings before beginning such a claim. The claim in defamation and malicious falsehood was not concerned with whether or not Mr. Wilson continued in employment with the City Council. It was concerned principally with the damage to his reputation.
15. It might be thought that it was understandable that someone in Mr. Wilson's position might have not properly understood that particular point. However, I have to bear in mind that the appellant saw a solicitor in August 1997 because there is the letter written by Messrs. Graysons during that month. Moreover, I have been told in the course of this afternoon that he continued to see a solicitor into 1998 -- principally on the employment issue, but nonetheless he was seeing a solicitor. It was clearly open to him to seek advice on whether he should take action in respect of the alleged defamation.
16. It follows that any misunderstanding on the part of Mr. and Mrs. Wilson simply cannot provide any reasonable explanation for the delay.
17. So far as the other matters raised are concerned, the point about the funding by Sheffield City Council of the defendant's case has to be seen in the context that Mr. Westney was an employee of the City Council and that the statement at the heart of the present proceedings was made by him in the course of his employment and as part of a disciplinary process, and particularly as part of an investigation commenced by his employer. There is nothing obviously wrong in the City Council assisting Mr. Westney in that situation. If there were, it would principally be a matter in any event for those concerned with local government audits to deal with it.
18. It may be that Mr. and Mrs. Wilson feel that the contest between them in the proceedings before Judge Heppel were somewhat uneven in terms of resources. Nonetheless, the fact remains that Judge Heppel heard them and sought to weigh matters up in a proper judicial fashion. I can see no basis for any appeal because of the fact that the defendants had counsel acting for them, whereas the claimant had to appear in person with the assistance of his wife.
19. Finally, the fact that Mr. Wilson may have complaints about how the disciplinary proceedings were conducted and about the availability of witnesses is of no relevance to the defamation proceedings. Those are separate proceedings which are brought against separate defendants, and whatever may have gone wrong, if anything did, in the disciplinary proceedings has no bearing on the exercise of a court's discretion under section 32A.
20. Moreover, all of this really flows from the disciplinary proceedings taken against the appellant by his then employer. The City Council was investigating allegations against the appellant when the statement by the first respondent Mr. Westney was made. That statement was very likely to be covered by qualified privilege in that situation, unless activated by malice. The particulars of claim assert malice but do not adequately plead any proper factual basis for that allegation. In that context, the judge was right to conclude that the prospects of success on the merits were always extremely slim.
21. In my view, the judge was entitled to conclude that he should not exercise his discretion under section 32A. I see no real prospect of the Court of Appeal interfering with that exercise of discretion. In those circumstances it follows that the application for permission to appeal must be dismissed. That being so, the associated application for disclosure must also be refused. Nonetheless, I am very grateful to Mrs. Wilson for the courteous and concise way in which she has presented the case on behalf of her husband this afternoon.
ORDER: Application dismissed.

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