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
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE GRAHAM JONES
sitting as a Judge of the High Court)

		Royal Courts of Justice Strand London, WC2 Tuesday, 15 October 2002

1. LORD JUSTICE SEDLEY: This is an application for permission to appeal made in person by Mr Gordon Heard who, if I may say so, has made it with courtesy and brevity. He is the claimant in a libel action against Professor Anthony Kemp.
2. In short, Mr Heard was a mature PhD student who formed the view that his professor, Professor Swanwick, had plagiarised a paper given by him, Mr Heard, to a seminar. Because he pressed this suggestion -- and it is no part of my task to decide whether it was right or wrong -- the Institute of Education asked Professor Kemp, lately retired, to look into the allegation. He reported by letter of 4 May 2000 in these terms:

"Thank you for sending me the documentation relating to Mr Gordon Heard's claim of plagiarism against Professor Swanwick. In reading through what you have sent me, and having done so several times, I am bound to state unequivocally that I cannot find any basis on which the charge of plagiarism  . . .  can be maintained or justified."

Later in the letter he says:

"The charge that the latter [that is Professor Swanwick's inaugural lecture] was 'based' on the former [that is Mr Heard's seminar paper] is absurd."

Finally the letter says:

"Repeated re-readings have convinced me that not only are the charges totally unfounded, they were extremely ill-judged and most unwise. Professor Swanwick is totally exonerated from these potentially damaging accusations."

3. In his proceedings, which are home-made, Mr Heard shows sufficient appreciation of the law to realise that what he was alleging was defamatory was an expression of opinion which was only going to be able to be the subject of a successful lawsuit if he could establish that it was maliciously made. He therefore alleged malice in his pleading. He tells me today that the foundation of his allegation of malice will be, if this action proceeds, that Professor Kemp knew quite well that what he was saying was not true.
4. The matter that comes before this court today, however, and which came before His Honour Judge Graham Jones on 11 July 2002, sitting as a Judge of the Queen's Bench Division, is a much shorter question, namely, whether this action is statute-barred. There was a further submission made to Judge Graham Jones, and upheld by him, that the claim, in so far as it sought to raise a cause of action for breach of natural justice, was ill-founded. That submission Mr Heard wisely does not seek to resurrect today, but he does say that Judge Graham Jones was wrong to hold his action to be statute-barred and, if he was right so to do, then wrong not to enlarge time.
5. I have said that the publication was in May 2000. Proceedings were issued in November 2001. Recognising that this put him beyond the one-year time limit for libel actions, Mr Heard submitted that there was at least one republication within a year before the issue of the proceedings. On 3 January 2001 the director of the Institute of Education wrote to Mr Geoffrey Robinson MP, who had evidently taken up the question on Mr Heard's behalf:

"Professor Kemp, an independent external expert, was sent all the documentation that Mr Heard wished to be submitted to him, the only proviso being that Professor Swanwick should have the right to see any such material (just as Mr Heard was provided with copies of all the documentation submitted by Professor Swanwick). Professor Kemp confirmed that he had read through 'several times' the documentation sent to him. His view was that he could not 'find any basis on which the charge of plagiarism against Professor Swanwick could be maintained or justified'.

In the light of Professor Kemp's very clear conclusion, I must repeat that I now consider this matter closed."

The obvious difficulty with that repetition of the criticism complained of by Mr Heard is that it is not made by Professor Kemp. The argument which was consequently advanced, that such republication was a natural and probable consequence of Professor Kemp's writing the original report, was rejected by the judge as "fanciful", and I have to say it seems to me that no other view is reasonably possible.

6. The other matter that Mr Heard relies on before me today, as before Judge Graham Jones, is a letter of 27 July 2001 written by Professor Swanwick (again, not the defendant) to Mr Heard, saying that everybody who Mr Heard is seeking by correspondence to enlist in his campaign is being told, among other things, about "your consequent dishonest allegation of plagiarism and the conclusions of the enquiry that your claim was 'totally unfounded' and 'absurd'." This, while not a republication, is, Mr Heard says, an admission of repeated republications. That again was far too exiguous in the judge's view, a view which it seems to me is incontrovertible, to found an allegation of libel committed within the one-year period before the issue of proceedings.
7. In parenthesis, I should say that Mr Heard is concerned that the judge criticised him at this point of his judgment for confusing the report with the inquiry. I am content to accept from Mr Heard that in effect the report was the inquiry, or at least the conclusion of the inquiry, and that there were not two separate proceedings.
8. Turning then to the power under section 32A of the Limitation Act to enlarge time if the court thinks it just and equitable in all the circumstances (I paraphrase), Judge Graham Jones considered all the factors advanced to him by both sides and declined to enlarge time. Any such decision, if it is to be attacked on appeal, has to be attacked on the basis that it simply was not in law or in reason,open to the judge. That is a steep hill for a litigant to climb and Mr Heard, I am afraid, is not within sight of the summit.
9. It is true that initially the judge turned to a point which did not go to the enlargement of time but to the computation of time. That is the question of publication of the report to the University of Reading, of which Mr Heard said he had only become aware in May 2002 but which had happened in May 2001. The judge said that that was a disingenuous submission in any case, because Mr Heard himself had sent a copy of the statement to the University of Reading. The publication, however, even if it were one that had not been replicated by Mr Heard, is not part of his pleaded case. What really mattered under this head of the argument was whether Mr Heard had an adequate and convincing reason for having gone beyond the year before issuing proceedings after receipt of the real subject of his complaint, namely Professor Kemp's written conclusions of May 2001; and if he did, whether nevertheless the balance of prejudice in allowing him to continue would be greater than was fair to Professor Kemp.
10. The judge concluded that there was no adequate explanation for the late issue of proceedings. That being so -- and I cannot see what there is to show that he was wrong -- no question of exercising discretion arose. If, however, he was wrong, then the judge was entitled to take into account, as he did, the stress that the prosecution of the proceedings was going to have upon Professor Kemp, now emeritus and retired and facing an almost interminable process of litigation, conducted, it has to be said, with a scattergun approach so that almost everything that has upset Mr Heard over these years gets drawn into the documentation and the allegations.
11. Finally, the judge was impressed by his view -- and I record it because I think he was quite right to take it into account and accurate in his appraisal -- that in any case, if the action were allowed to go ahead it had very limited prospects of success. With that I have to say I strongly agree. Having read the claim, it seems to me that the defence that the words are not defamatory at all is a strongly viable defence; but even if they are defamatory, they are manifestly, as Mr Heard's claim implicitly accepts, an expression of opinion. The evidence of malice, on the papers, rests so far purely on an assertion that Professor Kemp did not believe, because he could not have believed, what he wrote to be true. That, with respect, is no more than recycling Mr Heard's own, clearly fervent, belief that he had been plagiarised and nobody who inspected the evidence could conclude otherwise. But life is not like that. It is perfectly possible to hold an opinion which is diametrically opposed that of others, and indeed which may be wrong, without in any way going beyond the bounds of good faith and straying into malice or improper motive.
12. All of those difficulties would remain confronting Mr Heard if the action went ahead, and might very well result in it being struck out before trial on one or more of the grounds I have mentioned. But that is background, in the sense that it is only material if the question of the exercise of discretion was crucial. For the reasons I have given, it was not. This was a statute-barred claim with no good reason for enlarging time and it was rightly struck out.
13. In those circumstances there is no basis for granting Mr Heard permission to appeal, and I am afraid I must refuse it.
ORDER: Applications refused