England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/11/2021

His Honour Judge Lewis:

1. In these proceedings, the claimant seeks damages and an injunction for libel in respect of two emails sent by employees of the defendant on 20 April 2016 and 16 May 2016.
2. The claimant applies on notice for an order under s.32A Limitation Act 1980 ("the 1980 Act") directing that the statutory one-year limitation period shall not apply in respect of the causes of action sued upon.
3. The defendant applies on notice for an order striking out the claim pursuant to CPR rule 3.4(1) and/or for summary judgment pursuant to CPR rule 24.2. This application is now pursued solely on the basis that the claims are statute-barred. It is agreed between the parties that if the claimant's application under s.32A is unsuccessful, the proceedings should be dismissed.
4. The claimant relies on her three witness statements and one from her solicitor. The defendant relies upon a witness statement from its solicitor.

The Law

5. It is common ground that the limitation period for defamation is one year from the date on which the cause of action accrued: s.4A of the 1980 Act.
6. Section 32A of the 1980 Act provides for a discretionary exclusion of the time limit for actions for defamation, as follows:

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

7. The approach to be taken on applications under s.32A was considered by the Court of Appeal in Steedman v British Broadcasting Corporation [2001] EWCA Civ 1534:

"The discretion afforded by this section is largely unfettered. It requires the court to balance any prejudice to the claimant on the one hand and the defendant on the other in allowing the action to proceed or otherwise. All the circumstances of the case must be had regard to in assessing the justice of the matter with particular reference to the length of, and reasons for, the delay and the extent to which the passage of time since the expiration of the limitation period has had an impact on the availability or cogency of relevant evidence." per David Steel J at [15].

8. It is for the claimants to make out a case for the disapplication, or relaxation, of the normal rule: Steedman at [33], per Hale LJ.
9. The 1980 Act includes similar (but not identical) provision for applications to disapply the limitation period in personal injury actions. In Steedman, the Court of Appeal confirmed that some of the principles established in respect of such applications are of general application, including in respect of applications under s.32A of the 1980 Act. The principles identified by the Court of Appeal were those identified by Lord Diplock in Thompson v. Brown [1981] 1 W.L.R. 744 and summarised by Parker LJ in Hartley v Birmingham District Council [1992] 1 WLR 968 at 977:

"1. A direction under the section is always highly prejudicial to the defendant.

10. The expiry of the period . . . is always in some degree prejudicial to the plaintiff.
11. The extent of the prejudice would depend on the strength or otherwise of the claim and/or defence.
12. Even where the plaintiff has, if the action was not allowed to proceed, a cast iron case against his solicitor, some prejudice, albeit it may be minor, will be suffered by the plaintiff.
13. In exercising its discretion the court has not only to consider the respective degrees of prejudice to the plaintiff and the defendant, but also the speci?c circumstances set out in section 33(3) and all other circumstances.

6. It must then consider whether it is equitable to allow the action to proceed…"

14. The application of s.32A was consider further by Sharp LJ (as she then was) in Bewry v Reed Elsevier UK Limited [2014] EWCA Civ 1411:

"5. The discretion to disapply is a wide one, and is largely unfettered: see Steedman v British Broadcasting Corpn [2002] EMLR 318, para 15. However it is clear that special considerations apply to libel actions which are relevant to the exercise of this discretion. In particular, the purpose of a libel action is vindication of a claimant's reputation. A claimant who wishes to achieve this end by swift remedial action will want his action to be heard as soon as possible. Such claims ought therefore to be pursued with vigour, especially in view of the ephemeral nature of most media publications. These considerations have led to the uniquely short limitation period of one year which applies to such claims and explain why the disapplication of the limitation period in libel actions is often described as exceptional.

6. Steedman v British Broadcasting Corpn was the first case in which the Court of Appeal had to consider the manner in which a judge exercised his discretion pursuant to section 32A of the Limitation Act 1980. Brooke LJ said, at para 41: "it would be quite wrong to read into section 32A words that are not there. However, the very strong policy considerations underlying modern defamation practice, which are now powerfully underlined by the terms of the new Pre-action Protocol for Defamation, tend to influence an interpretation of section 32Awhich entitles the court to take into account all the considerations set out in this judgment when it has regard to all the circumstances of the case.

7. The Pre-action Protocol for Defamation says now, as it said then, at para 1.4, that "There are important features which distinguish defamation claims from other areas of civil litigation. In particular, time is always of the essence in defamation claims; the limitation period is (uniquely) only one year and almost invariably, a claimant will be seeking an immediate correction and/or apology as part of the process of restoring his/her reputation: see Civil Procedure 2014, vol 1, para C6-001."

The publications complained of

15. The claimant is a teaching assistant. She registered for work with an agency, Career Teachers, in January 2015. In April 2015, Career Teachers placed the claimant on an agency basis for a year as a learning support assistant at the defendant's sixth form college.
16. In December 2015 there was an incident at the college involving two students. The incident was handled by the school's Curriculum Leader, Inclusive Learning ("the SEN Head"). The claimant later took issue with the way the matter had been handled. She raised her concerns with the SEN Head, but says her views were not well received.
17. On a day in February 2016, one of those students was absent from college. On the same day, the claimant was off work through illness. The claimant says that at around 7pm, she noticed the SEN Head outside her home, sitting in her Audi and then driving away. The claimant says that she did not think of this as a 'friendly appearance' by the SEN Head, as she did not consider them to be on good terms following their previous conversation.
18. On 19 April 2016, the claimant had a meeting with her line manager at the college, Mr Belson. She says that she mentioned that the SEN Head had seemed offended when the claimant questioned her response to the incident involving the two pupils, had subsequently been "off" with her and had turned up at her home. The claimant says that Mr Belson said he would get back to her, after speaking with the SEN Head.
19. On Wednesday 20 April 2016, the claimant attended a meeting with the defendant's HR department. She says that she was told that she would not be kept on beyond that Friday due to budget constraints. The defendant's evidence is that it terminated the contracts of a number of agency staff that day, and some on fixed term contracts, and the decision to let the claimant go was unrelated to her meeting the day before.
20. At some point on 20 April 2016, the first email complained of was sent. The copy that has been provided does not contain the transmission time. The claimant's pleaded case is that the email was sent by the SEN Head to "the defendant". The subject of the email is "Allegation". The claimant has not complained about the entirety of the email, with the words shown in italics below having been omitted from the Amended Particulars of Claim:

"I'm sending you this e-mail for reference only and am not concerned with taking it any further.

Yesterday [redacted – presumably Mr Belson] came to me to investigate an allegation made by one of the LSA's- Veinisha. Veneisha reported to [redacted], amongst other things, that I had been stalking her and sitting outside her house. She alleges that the reason I have been doing this is, I do not believe that she was genuinely off sick and that I believe she is having a sexual relationship with one of the SEN students and he has been at her house.

Veneisha also believes that [redacted] was the person who has passed on her address to me.

We had an incident with a student after Christmas, involving a stolen mobile phone. The incident involved the student who I allegedly believe Veneisha is having a relationship with and that I disregarded a piece of information Veneisha gave me because of my beliefs regarding the relationship. The fact of the matter was that Veneisha informed me that it was another student that had originally taken the phone, of which I was aware.

The car that Veneisha has described outside her house was a small black Audi. My car is a cream, large Renault Capture with a number plate [omitted]. I have never been in Charlton since my return to Shooters Hill, other than a transition event with [redacted] at Charlton Park School, and do not know where Venisha lives.

I would also like to add that at the end of last term my car/house keys went missing from the office. Under the circumstances of the disappearance, I was sure that someone had taken them as I came in over Easter and searched the whole area around the desks.

Yesterday they were found in the staffroom right in front of the doorway, in full view of everyone, who had not seen them previously when going in and out of the door when they arrived in the morning.

Obviously I have no evidence to suggest it was Veneisha, but I just wanted it on record that it was a coincidence that they appeared on the very day that this allegation was made.

As stated at the start of this e-mail, this allegation has no substance and therefore I'm happy to not take it any further, but please let me know if you feel differently from an HR perspective."

21. The claimant says in her Amended Particulars of Claim that this means that (i) she engaged in an inappropriate relationship with a child (who was one of her students), which was an abuse of her relationship of trust and of her contract of employment; and (ii) she was a criminal and thief who had intentionally stolen car and house keys on the same day that an allegation was made by her against the SEN Head.
22. On 3 May 2016 the claimant called Mr Irish at Careers Teachers and told him that she believed that her disagreement with the SEN Head and the 'disclosures' made to Mr Belson, had contributed to her 'dismissal'.
23. On 13 May 2026, Mr Irish telephoned the claimant with feedback from the defendant. According to the claimant, he used a monotone voice as if reading from a statement and said: "it's alleged that Veneisha had a relationship with a student who had stolen a phone". The claimant says this was the first time she had heard this suggested, and she was shocked. She says that Mr Irish refused to say who had provided him with this information. The claimant says that she suspected it was the SEN Head, but she was not certain.
24. On 16 May 2016, the claimant wrote to the defendant college, including the head-teacher and Mr Belson. She forwarded a copy of her email to Career Teachers. She said that following her complaint about the SEN Head being seen outside her home, it had been brought to her attention that an allegation was being made that she had a relationship with student. She noted that no such issues had been raised during her employment, which had been terminated the day after she made her complaint. She referred to this allegation as being "venomous defamation against my character which is extremely serious". She requested that the allegation is withdrawn by 20 May 2016 "otherwise I'll have no option but to take the matter further through judicial proceedings."
25. At 12.48 that day, Mr Irish forwarded the claimant's email to the defendant's HR director and said the following:

"I have forwarded you the below email from Veneisha for reference and we have now completely achieved her from our company.

She has caused nothing but issues since she left accusing us of breaking our contract not giving her notice which is not implied on her agreement we had her sign. She then went to the police in regards to the stalking allegation and they told her it's the agency who must action this with the school.

We take any allegations seriously on both accounts and that's why we addressed our concerns over what was said and she has now issued the below.

We are dealing with her but she is not a stable person so I don't know what she will do next."

26. The HR director replied 11 minutes later from an iPad. This is the second email complained of. She said:

"Thank you for your email, I'm on a training course at present but will give you a call. She has sent an email to the Head Teacher, I haven't read it in full yet. I agree I believe she is unstable, and requires help."

27. The claimant says that this email meant that she was of unstable, irrational and unsound mind to the extent that she required professional help and that she was not of a suitable state of mind to be working as a teaching assistant.
28. The defendant did not reply to the claimant's letter. The claimant says she called Mr Irish to let him know that the defendant had not replied and expressed concern about the impact that this might have on her professionally. She says that Mr Irish replied that (i) they were not undertaking an investigation and the matter is now closed; (ii) he was annoyed that the claimant had sent her letter of 16 May; and (iii) in response to a question about future work, said "well, your behaviour was questionable".

Complaints made to third parties

29. In addition to raising issues with the defendant and Career Teachers, the claimant pursued quite a few complaints in respect of the way she says she was treated by the defendant. These include:

a. A complaint to the local authority's safeguarding officer for children services. This complaint was made around 10 June 2016. According to the claimant's former solicitors, the local authority concluded that "no safeguarding allegation had been made against [the claimant] by anyone at the defendant".

b. Two complaints to the Metropolitan Police. In respect of the first, the claimant's former solicitors have said that the police investigated the allegations and conducted interviews, including with the SEN Head who denied to the police having ever been at the claimant's property, or making any form of safeguarding allegation against her. The claimant's then solicitor says that the SEN Head "proceeded to make further untrue statements about our client as to her mental state; this resulted in the police concluding that there was insufficient evidence to proceed with [the claimant's] complaint and that [the claimant] had made the safeguarding allegation herself".

c. The other complaint to the police was made in mid-July 2016. The claimant told police that she had come back home to find her patio doors open and she believed that some of her papers had been moved and looked through. She reported some damage to the door, but the police noted that this did not appear consistent with forced entry. The claimant told the police that she was "being harassed by an employee and didn't know who and people were conspiring to intimidate her by tailgating her all the time and standing outside of her house. She could not give any names. She did say that she reported the harassment but this was dismissed." No further action was taken.

d. A complaint to her MP.

e. A complaint in October 2017 to the Teacher's Misconduct Unit. According to the claimant's former solicitors, the claimant told the TMU that the SEN Head had made the safeguarding allegation about her. The complaint was dismissed. The solicitors said that "unfortunately, the outcome of that complaint… [to the TMU] did not result in teaching prohibition".

The subject access request

30. After the claimant sent her letter to the defendant on 16 May 2016, she does not appear to have done anything further to pursue a claim for ten months. On 16 March 2017, the claimant made a subject access request ("SAR") to Career Teachers. She did not make any requests of the defendant.
31. Career Teachers responded to the SAR on 23 March 2017, although some of the documents provided had been redacted.
32. The claimant has not disclosed copies of the documents that she received, nor has she provided much information about them. All she has said is that many of them were administrative, and that they did not include a "statement of the safeguarding allegation". We do, however, also know that the claimant's former solicitors told the defendant in writing on 30 April 2018 that it was within this SAR response "that our client discovered you [the SEN Head] had made the defamatory allegation about her". The claimant has been asked more than once to provide copies of the documents that her lawyers were referring to, but she has not done so.

The claimant's next steps

33. There was then a gap of nine or so months where the claimant did not do anything to pursue any claim against the defendant. She says that she started looking for solicitors in December 2018 and instructed a firm three months later, on 26 March 2018. A further month then went by, with her solicitors then sending a letter of claim to the SEN Head (not the defendant) on 30 April 2018.
34. The defendant's solicitors responded on 3 May 2018. The letter states in unambiguous terms that "at no time has [the SEN Head] made a safeguarding allegation about [the claimant]". The solicitors note that if the claimant has evidence to the contrary she should provide it, and also requested sight of the materials from the SAR that the claimant was relying upon.
35. There was no response to this letter from the claimant or her solicitors.
36. After a further gap of three months, on 25 July 2018 the claimant issued proceedings against Career Teachers for a Norwich Pharmacal Order. I note that when the claimant saw a hospital doctor on 31 January 2019 she referred to these proceedings. She explained that she was still having on-going difficulties with her employment dispute "which is currently with the High Court" and, as a result of this, "she has been under significant stress and has not been able to work".
37. Career Teachers provided further documents to the claimant on 28 March 2019 and acknowledged that some of these should have been provided in 2017 pursuant to the SAR. Again, the claimant has not shared a copy of the documents that she received, but she says that they included "the documents referring to the safeguarding allegation" and the email of 20 April 2016.
38. There was then a further period of three months, during which time the claimant says she was drafting her court paperwork.
39. The court received a draft Claim Form, and the N244 application pursuant to s.32A, around 6 August 2019. The N244 was issued and sealed. The Claim Form was returned because it was not in a form that could be issued. It was re-lodged and issued on 27 August 2019.
40. In addition to seeking general damages and an injunction, the claimant is also seeking special damages for loss of earnings from 1 May 2016 to the date of judgment – which currently stand at approximately £88,000.

The claimant's health

41. The claimant's health forms a key part of her application. She has placed in evidence significant material from her medical records and letters from various hospitals. In respect of the claimant's health, I note the following:

a. The claimant underwent a significant operation on 21 June 2016. She remained in hospital for two days. The hospital has confirmed that this was significant surgery with a recovery time of 6-8 weeks.

b. The claimant says she had deteriorating mental health between September 2016 and March 2017. The hospital records that she first contacted them about this on 23 November 2016. There is a detailed letter from the NHS Trust which records that on four occasions between this date and 16 December 2016, the claimant informed medical professionals that (i) she was under a lot of stress due to the behaviour of a former employer; (ii) she was being monitored and persecuted constantly outside her property and that she believed her previous employers were responsible; (iii) the former employer was financing a campaign to smear her name and reputation; and (iv) her former employer was behind the anxiety she is being caused from having people follow her. The professional view of the early intervention team was that the things being said by the claimant were evidence of paranoid beliefs and psychotic symptoms.

c. The claimant says that she started to develop significant problems with her physical health including 'cardiac and orthopaedic symptoms' in May 2017, which worsened over the following months. The claimant presented at A&E on the night of 13/14 September 2017, concerned about her heart, and was kept in for observations until 15 September. She also presented at A&E on 13 June 2018 and was sent home. In January 2019 she was diagnosed with an autoimmune disease.

42. The claimant pursued two complaints arising out of her medical treatment:

a. A complaint to the NHS Trust about her treatment during her mental health crisis. The claimant says a 'quack' doctor "breached my medical information and made a referral to social services without consent". She says there was a year-long investigation, concluding on 10 January 2018. The complaint about the treatment that she received was rejected, but the Trust apologised for not having informed the claimant after it made a MASH safeguarding referral.

b. A complaint to the Information Commissioner. On 13 April 2018 the commissioner confirmed that the Trust was likely to have breached the first data protection principle because it should have informed the claimant that a safeguarding referral had been made to MASH, even if only after the event.

The claimant's application

43. The claimant says that she only became aware of the detail of what had been said about her when she received the documents from Career Teachers in March 2019. She says that until then, the defendant had simply denied saying anything defamatory about her, and so she did not have the information that she would have needed to issue a claim.
44. The claimant says that she did everything that she could to get the information that she needed promptly. She says that she has had serious medical issues that prevented her from pursuing matters as quickly as she would have liked. She was representing herself without funding for legal representation and was unsure of the steps that she needed to take to progress matters. She says she was also hampered by the failure of Career Teachers to respond properly to the SAR. She says that if they had replied in time, she could have issued before the expiry of the limitation period. As soon as she received all the documents, she says that she pursued matters with vigour.
45. The claimant says that she has a strong case for general and special damages, although she says that the merits of the underlying claim, and issues of serious harm, are not relevant to any decision to be taken under s.32A and need to be considered separately as a preliminary issue. She says she has been unable to work because of the publications complained of and will be unable to do so until she can get a reference from Career Teachers. She says that she will be prejudiced severely if her application fails. She also relies on the fact that the defendant has not said that it would be prejudiced in defending the claim if it were to be allowed to proceed.

The defendant's position

46. The defendant says that the delay in this case is very lengthy and the evidence falls short of explaining the reasons for such delay.
47. The defendant is critical of the claimant's failure to pursue any claim, identifying three significant periods of delay: (i) the nine month delay in making a subject access request; (ii) the thirteen month delay between receiving the subject access request materials and sending a letter of claim, almost two years after having threatened legal action; and (iii) the five month delay between receiving additional materials in March 2019 and issuing these proceedings.
48. The defendant says that it would suffer significant prejudice through the loss of a limitation defence. Further, it is said that the inherent weaknesses of the claim are so obvious in this case that the court can properly take them into account.

Discussion

49. It is clear from the claimant's own evidence that since April 2016 she has believed that the defendant has said defamatory things about her. She has also been aware from the outset that she might have a legal claim, threatening legal proceedings herself on 16 May 2016, and again through solicitors on 30 April 2018.
50. The claimant has not said at any point that she was ignorant of the limitation period. Even if she was unaware of such matters at the outset, it is reasonable to assume that she would have known by the time she instructed solicitors in 2018. In any event, she had a responsibility to bring matters before the court promptly:

"ignorance of the limitation period will rarely if ever, be a factor which carries any or any significant weight given the policy reasons underlying the one-year limitation period for libel claims. A claimant is expected to pursue his complaint promptly irrespective of the limitation period and whether he knows about it, for the simple reason that not to do so is inconsistent with a genuine wish to pursue vindication of his character promptly and vigorously, which is what the law requires. Ignorance could only be relevant in the most marginal type of case, where a claimant is actively misled for example…" per Sharp LJ in Bewry at [36].

51. The defendant accepts that the claimant did not have sufficient information to bring proceedings in April 2016. It was, therefore, her responsibility to take steps to obtain such information promptly, but she did not do so. For example, she failed to make a subject access request (or any request) of the defendant, or an application for pre-action disclosure. She also chose not to reply to the letter from the defendant's solicitor of 3 May 2018.
52. It is apparent that the claimant did experience a period of ill health in June and July 2016 following an operation, and what appears to have been quite a significant mental health crisis between November 2016 and early 2017. There are also the other health issues referred to. There is nothing in the medical notes and evidence for the period from May 2017 onwards to suggest that the claimant's physical health was such that she was unable to function on a day to day basis, certainly not to the extent that would have prevented her from pursuing this claim.
53. None of the medical issues that the claimant faced appear to have affected her ability to pursue a very significant number of complaints to third parties, including to the police, her MP, the NHS, the local authority, the teachers' regulatory authority and the information commissioner. She was able to pursue her SAR in March 2017 and instruct lawyers a year later. Indeed, the claimant's own pleaded case is that she would have been able to work, had it not been for the publications complained of.
54. I do not necessarily accept that it was March 2019 when the claimant was provided with the information that she needed to bring proceedings. She has not produced the documents that she received in March 2017, and there is the clear representation from her lawyer in March 2018 that sufficient information had come out of that subject access request to give rise to a claim.
55. Even if it is correct that the claimant only had the information she required in March 2019, no good reasons have been given for the further delay of five months in issuing proceedings. The claimant was aware that she was significantly out of time – after all, she was preparing her s.32A application – and time was of the essence.
56. The claimant has not pursed these claims with any vigour. At every stage, there have been very significant delays, the explanations for which have for the most part been vague and unsatisfactory. The approach of the claimant is at odds with the primary purpose of libel proceedings, which is the vindication of a claimant's reputation.
57. If the claimant's application is refused, the effect will be to deny her an opportunity to pursue her claim. Whilst I must not seek to conduct a mini-trial, particularly absent a pleaded defence, I can see there is some force in Ms Jolliffe's submission that these claims lack merit.
58. In respect of the first email complained of, there is no evidence that the defendant has ever alleged that the claimant had a relationship with a student - and the defendant denies having done so. The police considered these allegations to have come from the claimant herself. The email complained of does not make such allegations. The SEN Head notes that the claimant had mentioned them, but makes clear that there is nothing in them, and they do not need to be pursued. The defendant accepts that what is said about the car keys might have a defamatory meaning, but something much lower than the one that is pleaded.
59. The claim in respect of the first email relates to a single act of publication within the defendant organisation. It seems unlikely to have caused the claimant serious harm. The email itself was written in response to a complaint by the claimant. Mr Belson had promised the claimant that he would ask the SEN Head for her account. The author of the email was the subject of a serious professional complaint and was quite properly setting out her account of events. She noted "for the record" her concern about what happened to her keys, whilst noting that she had no evidence that this had been the claimant. On the information available at present, the defendant would appear to have a credible defence of qualified privilege, with little evidence that the claimant would be able to meet the high burden of proving malice.
60. In respect of the second publication complained of, this was published to one person. The HR director was expressing an opinion. The defendant says it is fanciful to suggest that this email would have caused serious, or any, harm to the claimant's reputation in the eyes of the publishee, who was the sender of the original email. Given what was said in the original email, I agree.
61. The claimant would also appear to have difficulties in her claim for an injunction, there being no threat of re-publication, and with her claim for special damages.
62. It seems therefore that the claimant is unlikely to gain anything worthwhile from pursuing proceedings, either in terms of compensation or vindication. The claimant says that she needs a reference from Career Teachers to move on, but that is a matter for Career Teachers, and not this court.
63. In terms of prejudice to the defendant, as well as the loss of a limitation defence, allowing the proceedings to continue would put the defendant to significant expense and inconvenience. There will most likely need to be a trial of a preliminary issue on meaning and serious harm. Whatever costs orders are made, it seems unlikely that the defendant would recover any of its costs of defending the proceedings.
64. Considering all the circumstances, I do not consider that it would be equitable to disapply the limitation period in this case. The claimant's application, and the claim, are both dismissed.