Don’t Get Caught Out – One Year Limitation Period Means One Year

28 January 2015

Author: Olivia O'Kane
Practice Area: Media and Defamation

The Penalty of Being Statute Barred: Libel & Slander

Northern Ireland Statutory Limitation Period: One Year

In Northern Ireland, section 6 of the Defamation Act 1996, proscribes in law that an action for damages for defamation may not be brought after the expiration of one year from the date on which the defamation occurred.  This time limit is the same in England & Wales.

Section 51 of the Limitation (NI) Order 1989 enable the NI Courts to use its discretion to extend or abridge time only where all or any of the facts relevant to that cause of action did not become known to the complainant until after the expiration of the one year period.  In this circumstance, only with leave of the court and only where the proceedings are brought before the expiration of one year from the earliest date the complainant knew all of the relevant facts can defamation proceedings commence out of time.

In the case of libel, the date of publication is the relevant date for the limitation period.  In Northern Ireland a separate cause of action accrues for each individual publication of a libel which is then subject to its own limitation period, Duke of Brunsiwck v Harmer [1849] 14 QB 185. [1]

E&W Court of Appeal Case:

Reed Elsevier UK Limited & ors v Raymond Russell Bewry [2014] EWCA Civ 1411

The High Court of England granted the claimant's application to disapply the limitation period in their proceedings for libel.  On 30th October 2014 the Court of Appeal overturned this decision.

Statute provides that an action for libellous defamation cannot be brought after one year from the date of publication.  In England & Wales, section 32A of the Limitation Act 1980 enables the court to use its direction to disapply the one year rule if it appears that it would be equitable to allow the action to proceed after having regard to all of the circumstances of the case. 

In spite of the wide discretion afforded to the courts, the Court of Appeal gave judicial notice to the importance of one of the main purposes of a libel action, namely to obtain vindication of a claimant’s reputation.  The Court of Appeal noted that the special considerations applicable to libel actions meant that a claimant should be expected to act quickly in defamation proceedings and any displacement of the one year rule should only arise in exceptional circumstances.

The High Court judge had accepted the claimant’s case that he was justified in delaying issuing his claim because:

(a) he had initially sought to resolve the issue through negotiation, without wanting to resort to litigation; and

(b) he was unaware of the one-year time limit.

Having regard to the facts of this case, the Court of Appeal was not convinced that the claimant’s true aim was to avoid litigation through negotiation. Based on the evidence presented, it also concluded that there was no sure basis for finding that the claimant did not know of the limitation period. The Court of Appeal noted that the claimant had been involved in a considerable amount of litigation over the previous 15 years involving much shorter time limits. The defendants were therefore entitled to say that this should have led to a sceptical interpretation of the claimant's evidence.

The Court of Appeal held that regardless of the evidence presented, ignorance of the limitation period would rarely if ever, be a factor which carries any great significance. Claimants in such cases are expected to wish to pursue vindication promptly and vigorously, whether they know about the limitation period or not. The court conceded that ignorance of the limitation period would in all likelihood only be relevant in cases where the claimant is actively misled.

The Court of Appeal also found importance in the statutory requirement that in England & Wales the court is required to consider the extent to which the claimant acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action.  It held obiter dicta:

“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”.

Conclusion

An application to extend a statutory limitation period in any case has inherent difficulties of success. 

The legal threshold of establishing that time should be extended requires a fact sensitive consideration of all of the circumstances of the case.  Given the extraordinary nature and purpose of defamation proceedings, and in particular the significance of vindication, means that an Order allowing defamation proceedings to be issued out of time, will arguably, be even more exceptional than the foreseeable exceptional cases.

[1] In England & Wales the multiple publication rule has been amended to a single publication rule pursuant to s8 of the Defamation Act 2013 whereby a claim in libel for a publication on or after 1.1.14 shall be treated as having accrued on the date of first publication only so long as the same person publishes the second statement and both publications are substantially similar.

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