England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(SIR OLIVER POPPLEWELL)

		Royal Courts of Justice Strand London WC2 Tuesday, 19th June 2001

Tuesday, 19th June 2001

1. LORD JUSTICE KEENE: This is a renewed application for permission to appeal against the decision of Sir Oliver Popplewell dated 2nd March 2001. The appellants are eight Metropolitan police officers stationed at Haringey Police Station. They are suing the BBC for libel in respect of a television news broadcast which took place on 16th April 1999. The limitation period expired one year later by virtue of section 4A of the Limitation Act 1980. However, proceedings in this case were not issued until 26th June 2000. There was no letter for action until 27th July 2000.
2. Sir Oliver Popplewell on 2nd March refused to exercise his discretion under section 32A of the Limitation Act to direct that section 4A should not apply. On 23rd March 2001, Mantell LJ granted permission to appeal but limited the permission to certain of the proposed grounds. In effect he granted permission on grounds A(ii) and (iii) in the grounds of appeal.
3. Today, Mr Moloney QC on behalf of the appellants seeks to argue in favour of permission being granted on the remaining grounds. It seems to me that when one looks at those grounds individually, ground A(i) is something which is properly arguable in this appeal. There is little doubt that the effect of the delay on the defendant's ability to defend was a factor of very great importance and yet does not seem to have been referred to explicitly in that part of the learned judge's judgment.
4. The next ground is ground A(iv) where it is said that Sir Oliver Popplewell characterised the claimant's delay in bringing the proceedings as "tactical" when there was no or no sufficient evidence before him to warrant such a conclusion. That is a ground which seems to me to be without substance. Nowhere in his judgment does Sir Oliver Popplewell characterise the delay in that way. Mr Moloney says that the judge expressed earlier in his judgment a degree of suspicion of what had happened. That may be, but nowhere in the operative part of his judgment where he gives reasons for the exercise of his direction does he say anything to that effect. I can see no basis for granting permission on (iv).
5. Ground (v) deals with the weighing of the prejudice to the claimants against the prejudice to the defendant and is a general and somewhat catchall ground. It seems to me that that is a perfectly proper ground to be advanced and pursued before the full Court, bearing in mind that this is a discretionary matter with which one is concerned under section 32A.
6. I then pass to the one remaining ground which is labelled B. That is a contention that the exercise of discretion was especially perverse and misconceived, given that the proceedings had been duly served on the BBC within 16 months of the broadcasts, which is the period allowed by law for the service of proceedings issued within the limitation period. That does not seem to me to merit permission as a free-standing ground by itself. The point that Mr Moloney seeks to make here is that when one takes the limitation period for issuing proceedings and then the additional four months for the service, one comes to a total of 16 months. That, however, does not amount to some sort of implied extension of the normal limitation period requiring the judge automatically to grant an extension of time and to exercise his powers under section 32A merely because proceedings are issued within the additional four months. It is undoubtedly a factor, and arguably a relevant factor, which could come, for example, into the argument advanced under ground A(v), but it does not seem to me that it is arguable that merely by itself that makes the exercise of discretion perverse. The point was made by Sir Oliver Popplewell in his judgment that normally, before proceedings are issued within the limitation period of one year, there would be a letter before action and he distinguished that very clearly from the situation which arose in the present case. I agree with the reasoning of the judge in that respect and for that reason also I would not be prepared to grant permission in respect of ground B.
7. Therefore for those reasons I would be prepared to grant permission on this renewed application in respect of paragraphs A(i) and (v) but refuse it in respect of A(iv) and ground B, in addition of course to those grounds for which Mantell LJ has already granted permission.
8. LORD JUSTICE KAY: I agree. It follows that the order is that permission will be extended to cover grounds A(i) and (v).
(Application for permission to appeal allowed on grounds A(i) and (v); costs in the appeal)