PHILLIP JOHN STEEDMAN DAVID ALAN CLOHOSY IAN ALEXANDER SMITH SEAN KIERNAN ANDREW PHILIP NEWMAN SIMON PAUL CREEVY JOHN ANDERSON v THE BRITISH BROADCASTING CORPORATION [2001] EWCA Civ 1534

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Sir Oliver Popplewell
[2001] EWCA Civ 1534Case No Case No: A2/2001/0641 QBENIVenue Royal Courts of Justice, Strand,, London, WC2A 2LL, Tuesday 23rd October 2001
Between
PHILLIP JOHN STEEDMAN DAVID ALAN CLOHOSY IAN ALEXANDER SMITH SEAN KIERNAN ANDREW PHILIP NEWMAN SIMON PAUL CREEVY JOHN ANDERSONClaimants/AppellantsTHE BRITISH BROADCASTING CORPORATIONDefendant/ Respondent
Before
Lord Justice BrookeLady Justice HaleMr Justice David SteelPatrick Moloney QC (instructed by Gouldens for the Claimants)Manuel Barca (instructed by the BBC Litigation Department for the Respondent)Date 23 October 2001
[1]MR JUSTICE DAVID STEEL : INTRODUCTION: The appellants are eight police officers in the Metropolitan Police Force. On 26 th June 2000 they issued a claim form against the defendant, the BBC. The claim was for damages for defamation. It arose out of broadcasts made fifteen months earlier on 16 th April 1999. The claim was accordingly subject to the time bar contained in Section 4A of the Limitation Act 1980, which is in these terms:
"4A The time limit under section 2 of this Act shall not apply to an action for – (a) libel or slander, or (b) slander of title, slander of goods or other malicious falsehood, but no such action shall be brought after the expiration of one year from the date on which the cause of action accrued."
[2]The particulars of claim were served on 6 th October 2000. A defence was served on 3 rd November 2000. It duly alleged that the claim was time barred. After the defendant made an application on this basis to strike the claim out, the claimant eventually issued an application on 25 th January 2001 to dis-apply the limitation period pursuant to Section 32A of the 1980 Act (as amended by Section 5(4) of the Defamation Act 1996).[3]This application came before Sir Oliver Popplewell, an experienced judge in the defamation field. He refused the application. He also refused permission to appeal. But this court granted leave in respect of some of the proposed grounds as follows:- "In exercising his discretion under Section 32A of the Limitation Act 1980, the judge disregarded binding authority, and erred in principle, in that: i) he did not accept that the paramount factor was the effect of the delay on the defendants ability to defend. (Had he done so he would have granted the extension since the defendant did not assert that his ability to defend had been prejudiced). ii) he treated the claimant's ability to sue their former solicitors for negligence and the effect on the defendant of losing the benefit of an accrued limitation defence as factors of significance when they are not. iii) he ignored the claimant's legitimate need to vindicate their reputations by libel action and perversely held that action against their former solicitors would sufficiently achieve that end. … v) his conclusion that the prejudice to the claimants in refusing the extension was outweighed by the prejudice to the defendant from granting it was wholly unreasonable and wrong." BACKGROUND[4]On the evening of the 11 th January 1999 the claimants were called to an incident at Tottenham. The incident concerned a Mr Roger Sylvester. The claimants say that he was apparently locked out of his house and was causing a disturbance in the street. The claimants contend that they detained Mr Sylvester pursuant to the provisions of the Mental Health Act and transported him to hospital. There he suffered a respiratory failure and, following transfer to two other hospitals, his life support machine was switched off on 18 th January 1999.[5]The incident became a matter of great notoriety. It was followed by numerous reports in the media expressing doubts about the police's version of events. For example the defence summarised one such report as follows:
"On 22 nd January 1999 the Independent published a further article under the heading "
Roger was seized by eight officers, left naked and died. Now another black family mourns". This article referred to the fact that in the wake of the Stephen Lawrence affair, the Metropolitan Police could ill afford another potentially damaging scandal in connection with its treatment of black people; it also quoted Mr Sylvester's parents calling for a fearless, comprehensive and independent investigation".[6]In due course it emerged that the Sylvester family were in fact contending that the police were responsible for Mr Sylvester's death. Following a complaint by the family to the Police Complaints Authority, the Essex Police were brought in to conduct an investigation into the affair. A well-known and experienced firm of solicitors was then instructed by the Police Federation in regard to any possible disciplinary or criminal charges against the claimants arising out of Mr Sylvester's death. On 26 th January 1999, an inquest into Mr Sylvester's death was opened and adjourned. It has not, even now, resumed.[7]Mr Sylvester's funeral did not take place until 16 th April 1999. That day, as part of the Newsroom Southeast bulletin of local news for the BBC1 Breakfast Programme, the transmission complained of was made:- "The family and supporters of Roger Sylvester are expected to gather in North London today for his funeral. Mr Sylvester died in January, after being restrained by eight police officers. This morning a procession will travel through Tottenham to Summerhill Road where he was killed."[8]This broadcast was, in some form or other, raised by the claimants with the Police Federation and within a week the Police Federation obtained a transcript of the broadcast which was then forwarded to the firm of solicitors already instructed. In the meantime Scotland Yard had issued an apology for an earlier statement that Mr Sylvester had been behaving in an aggressive and vociferous manner when restrained.[9]What happened between then and the issuance of the claim form in June the following year remains entirely obscure. A statement from the claimant's new solicitor simply states as follows (at paras 20-21):
"Shortly thereafter, certainly within a month, the Police Federation put the libel matter into the hands of the solicitors Russell Jones & Walker, who had already been instructed since January 1999 in connection with any possible disciplinary action and/or criminal charges against the claimants arising out of Mr Sylvester's death. The solicitor primarily dealing with the matter was Judith Seddon (who was not a defamation specialist but was in the criminal and disciplinary department). I am instructed by the claimants that they believed all along that the libel matter would be appropriately dealt with by their solicitors. Unfortunately it would appear that the limitation period was then overlooked by the solicitors until it was too late. Once the limitation mistake came to light, the papers were passed to Gouldens to avoid any potential conflict of interest should the claimants issue proceedings for professional negligence against their former solicitors…."
[10]It is notable that this evidence fails to furnish either directly or indirectly any information from the claimants, or their former solicitors, as to the instructions given by the claimants following the broadcast, the purpose of obtaining the transcript or even any indication as to whether there were any discussions between the solicitors and their clients about notification of a complaint to the BBC.[11]What is certain is that no communication, let alone complaint, was ever made at any stage to the defendants. The file remained in the charge of a member of the firm who was concerned with the criminal and disciplinary aspects of the case. We were told that, at a later and unidentified stage, the file was transferred in unspecified circumstances to a person with defamation experience. Even then no complaint was made, let alone proceedings commenced.[12]It follows that quite how "the limitation mistake came to light" in June 2000 is not apparent. Certainly the subsequent claim for an apology and an injunction rests uneasily with the very long and unexplained delay in even making any complaint.[13]The inquiry instigated by the Police Complaints Authority was not completed until 17 th December. Its report was then sent to the CPS who eventually announced in November 2000 (some considerable time after the issue of he claim form) that there was insufficient evidence to warrant any criminal proceedings. THE LAW[14]The relevant statutory provision is Section 32A of the Limitation Act 1980, as amended by the Defamation Act 1996. It reads as follows:
"32A(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 sub-section 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 specific 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 lengths of, and the reasons for, the delay on the part of the plaintiff; …. 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."
[15]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. THE DEFENDANT'S ABILITY TO DEFEND[16]It was accepted by the defendant that the incremental delay between the end of the limitation period and the issue of the claim form had had no material impact on its ability to defend the claim. It was at the forefront of the appellants' submissions that this was of paramount importance and of itself justified the exercise of the court's power to extend time. Indeed it was submitted that to adopt any other course was contrary to authority. This is a reference to Hartley v Birmingham City District Council [1992] 1 WLR 968 where this court was concerned with similar, albeit not identical, provisions, for disapplying a limitation defence in a personal injury action.[17]The appropriate use of the power to disapply such limitation provisions had already been considered by the House of Lords in Thompson v Brown [1981] 1 WLR 744. At p.977, Parker LJ summarised the conclusions of Lord Diplock as follows:- "1. A direction under the section is always highly prejudicial to the defendant. 2. The expiry of the period….is always in some degree prejudicial to the plaintiff. 3. The extent of the prejudice would depend on the strength or otherwise of the claim and/or defence. 4. 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. 5. 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 specific 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…."[18]I treat these as principles of general application. Lord Diplock had indicated that, if further guidelines were required in the particular context of personal injury cases, they were better laid down by the Court of Appeal. In response to that invitation, Parker LJ went on to say, as paraphrased in the headnote to the report: - "As the prejudice resulting for loss of the limitation defence will almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision, the loss of the defence as such would be of little importance. What is of paramount importance is the effect of the delay on the defendants' ability to defend. As it is legitimate to take into account that the plaintiff will have a claim against his solicitor, it is legitimate to take into account that the defendant is insured. An additional item of prejudice which a plaintiff will suffer, even if he has a cast iron claim against his solicitors, is the fact that, if he has to change from an action against a tortfeasor, who may know little or nothing of the weak points in his case, to an action against his solicitor, who will know a great deal about them, the prejudice may well be major rather than minor." He concluded his judgment with these general observations at page 980: "I do not consider that, apart from the foregoing, that it is either useful or desirable to attempt to lay down guidelines, for circumstances are infinitely variable. The task of the judge is to consider whether in all the circumstances it is equitable, or fair and just, that the action should be allowed to proceed".[19]The decision in Hartley was cited to the learned judge and indeed he quoted extensively from the additional guidelines, albeit not the underlying principles, in his judgment. However, various matters should be borne in mind. First, it was a remarkable case on its facts. The proceedings were inadvertently issued one day late against a background of prolonged negotiations with underwriters regarding quantum in a case in which liability was not in issue. Indeed, as Lord Justice Leggatt observed, it was difficult to imagine any application under the relevant provision being successful if the instant application had failed.[20]Secondly, it was a personal injury action. The judge considered that libel actions raised somewhat different considerations. As he put it, it was desirable to approach an application under Section 32A with some caution. The appellants challenged this approach but in my judgment it was fully justified. Notably the time limit for defamation actions has been progressively reduced: from 6 years to 3 years in 1984 and again from 3 years to one year in 1996. The rationale is set out in the recommendations of the working group of the Supreme Court Procedure Committee under the Chairmanship of Lord Justice Neill. Three paragraphs are worth citing from that report:
"VIII.1 In 1984 the limitation period for bringing defamation claims was reduced from the six-year period, applying to claims of tort generally, to 3 years. This was no doubt based on the general recognition that claims to protect one's reputation ought to be pursued with vigour, especially in view of the ephemeral nature of most media publications. ….. VIII.2 We have canvassed opinion and we have found a wide measure of agreement (not surprisingly) amongst media representatives that the same reasoning would justify an even shorter period. Memories fade. Journalists and their sources scatter and become, not infrequently, untraceable. Notes and other records are retained only for a short period, not least because of limitations on storage… VIII.5 On other occasions, complainants delay the issue of a Writ because the subject of the libel is being investigated by some other means and they wish to await the outcome, rather than have two such enquiries proceeding in parallel. For example newspaper allegations may be the subject of a disciplinary inquiry by a professional or sporting body; there may be criminal proceedings in progress, touching upon the same issues; or a Department of Trade Investigation may be on foot. Again, we can see that delay might be justified in such cases, although there would generally be no reason to keep the potential defendants completely in the dark. We would not expect a plaintiff to receive much sympathy if no relevant complaint had been made within the twelve-month period."
[21]It is worth noting that the preliminaries of this case would now be governed by the Pre-Action Protocol for Defamation: see White Book Vol 1 para C6-001. The introduction to the Protocol records that "there are important features which distinguish defamation claims from other areas of civil litigation, and these must be borne in mind when both applying and reviewing the application of the Pre-action Protocol. 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." The Pre-action Protocol then goes on to prescribe that a letter of claim should be made to the defendant at "the earliest reasonable opportunity".[22]Thirdly. the decision in Hartley was made some years before the Woolf Reforms and the introduction of the CPR. The court's approach to delay has undergone a sea change. Delay itself, whether or not it is established to have been prejudicial to the defendant, is rightly treated as prejudicial to the administration of justice.[23]In these circumstances, whilst the effect of any delay on the ability of the defendant to defend a defamation action remains important in the assessment of the justice of the matter, it is not to be regarded as in any way decisive (save perhaps where the defence can fairly be described as a complete windfall as on the facts in Hartley ). The judge was fully justified in adopting a cautious approach to the application. CLAIM AGAINST FORMER SOLICITORS[24]I turn now to the complaint that the learned judge should not have taken account of the claimants' ability to sue their own solicitors or at least that he placed excessive weight on that aspect. Given the absence of any explanation for the delay, it is not easy to determine whether they are justified in placing the blame upon their legal advisors. But since that was indeed the claimants' case, in my judgment the judge was fully entitled to take some account of it.[25]The suggestion that it is a wholly irrelevant consideration was rejected by this court in Firman v Ellis [1978] QB 886. The argument that the judge accorded excessive weight to the issue is not a promising line of attack on an exercise of discretion. The fact remains that the existence of the claim against the solicitors ameliorates to some extent such prejudice as flows from the impact of the limitation period. The extent of that prejudice in turn depends upon the strength or otherwise of the claim.[26]It has to be remembered that none of the officers were named in the broadcast or, indeed, in any of the contemporary newspaper reports. The defendants contend, with some force, that a particular difficulty about the claim is the apparent need in those circumstances for the claimants to rely upon relatives, friends and colleagues to establish that they were being referred to. Of course it is wholly inappropriate to make any determination of the merits of the claim. But its nature and form suggest that the prejudice of not being able to pursue it is of a low order.[27]In this connection, it is instructive to focus upon the complaint that, if the claimants were left to their claim against the solicitors, they would not thereby be able to vindicate themselves appropriately. But as was submitted on behalf of the defendants, it is very difficult to see how the claimants can seriously suggest that they have any expectation of vindication as a result of the pursuit of the defamation proceedings. That would only be achieved, if at all, in the light of the outcome of the inquest when it is resumed. Absent any contemporary complaint, the pursuit of vindication as a result of a claim to an apology some 15 months or more after the event, strikes me as an entirely empty gesture.[28]The appellants sought to suggest that this approach had the effect of visiting the faults of the claimants' lawyers on the claimants. I readily accept that, on the assumption that the delay was the solicitors' fault, such would be impermissible: see Corbin v. Penfold Metallising Company Ltd [2000] Lloyd's Rep Med 247 and the cases there cited. But that is to confuse two quite separate considerations. As Lord Diplock observed in Thompson v. Brown , supra: - "If he has acted promptly and reasonably it is not to be counted against him, when it comes to weighing conduct, that his lawyers have been dilatory and allowed the primary limitation to expire without issuing a writ. Nevertheless, when weighing what degree of prejudice the plaintiff has suffered, the fact that he will have a claim over against his solicitor for the full damages that he could have recovered against the defendant if the action had proceeded must be a highly relevant consideration." DISCRETION[29]For my part I would hold that the claimants have failed to establish that the judge's exercise of discretion is impeachable by virtue of the specific complaints raised by them. Nor do I regard the decision as obviously wrong:-(1) Relief granted to the claimants under the section would be highly prejudicial to the defendants. There is a clear time-bar. No negotiations or even complaint had been made before the expiration of the period. A further 3 months has then elapsed. It is in no sense a windfall defence.(2) To some extent the prejudice is counter-balanced by prejudice to the claimants in not having the time-bar lifted. But the claim would not appear to be a strong one, certainly if vindication is the aim. If it is stronger than it appears, the prejudice is ameliorated by the ability to claim against the former solicitors.(3) The statute expressly requires that there be consideration of the length and reasons for the delay. The delay in terms of time is significant and it is almost wholly unexplained. Certainly no good reason for the delay has been advanced. Given the terms of the particulars of claim as to the alleged impact of the broadcast on the claimants and on the administration of justice, it may properly be surmised either that there was no contemporary concern about the terms of the broadcast (at least as regards defamation) or that there was some tactical reason for not complaining.(4) The passage of time since the expiry of the time limit has obviously not enhanced the availability or cogency of evidence. This is not something to be perceived simply from the defendant's perspective. The ephemeral nature of the impact of such broadcast makes it desirable that the proceedings get under way very promptly. That is the very purpose of the short time limit. Failure to act promptly prejudices both parties and the court. CONCLUSION[30]For all these reasons I conclude, having regard to the balance of prejudice, that the judge was right to conclude that it would not be equitable to allow the action to proceed and I would dismiss this appeal. LADY JUSTICE HALE:[31]It is ironic that this case should come before us so soon after the publication of the Law Commission's Report on Limitation of Actions (Law Com No 270, HC 23, 9 July 2001) . In 1997, the Commission consulted (Law Commission Consultation Paper No 151, Limitation of Actions) upon proposals for a core regime of a common limitation period of three years from discoverability of the cause of action with no discretion to disapply this period. They drew attention to the two recent reductions in the limitation period for defamation and malicious falsehood actions and asked whether these actions should be included in the core regime (see paras 13.38 to 13.43). Not surprisingly, respondents were almost equally divided; prospective defendants in the media favoured the present regime and those acting for claimants favoured a return to the three year period. In their Report (see Law Com No 270, paras 4.38 to 4.45), the Commission were not persuaded that defamation actions were so different as to justify special treatment. The present one year limit introduced anomalies between these and other possible causes of action arising out of the same publication. It might also encourage forum shopping because of the three year period applicable in Scotland. Claimants found that the one year period did not give sufficient time to prepare a claim properly so as to be able to serve fully detailed particulars of claim. A discretion to disapply would inevitably be required if the one year period were retained. There are, of course, many arguments against the existence of a such a discretion. These are very powerful considerations supporting the Commission's view.[32]The Commission do not appear to have attached any weight to the consideration that a major, if not the major, objective of a defamation action is the vindication of the claimant's reputation, an objective which in most cases can only be attained by swift remedial action. It may be that those who responded to the Commission's consultation took a different view from that which has loomed so large, not only in argument in this case, but also in the previous reductions in the limitation period and in the court's current approach to timetabling and case management. For the time being, however, there is no doubt that the courts do view these actions in this way and that that view has an important bearing on the balance of prejudice test in section 32A(1) of the Limitation Act 1980.[33]It is for the claimants to make out a case for the disapplication, or relaxation, of the normal rule. The reference by Parker LJ in Hartley v Birmingham District Council [1992] 1 WLR 968, at 980C, to the 'paramount' importance of the effect of the delay upon the defendant's ability to defend was made in the context of a discussion of what is meant by prejudice to the defendant in the equivalent of section 32A(1)(b). This has to be set against the prejudice to the claimants. Under section 32A(2), the court must have regard to 'the length of, and the reasons for, the delay on the part of the plaintiff', independently of '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 . . . ' The effect of the delay upon the defendant's ability to defend cannot therefore be the only consideration.[34]In this case great stress has been placed upon the loss of the claimants' chances of vindicating their reputations, as no such vindication would be possible in an action against their former solicitors. But these claimants have not put evidence before the court to that effect; nor have they offered explanations for why they did not instantly seek a retraction from the BBC, or make any other sort of complaint about the broadcasts, until long after the time when these might be expected to have any effect upon those to whom they considered that they had been defamed. This makes it difficult to conclude that vindication of their reputations was uppermost in their minds at any time. In those circumstances they have not made out a sufficient case of prejudice to justify the disapplication of the normal rule. I too would dismiss this appeal.

LORD JUSTICE BROOKE:

[35]I agree. The only reason why I am adding a judgment of my own is that we were told that this is the first occasion on which this court has had to consider the manner in which a judge exercised his discretion pursuant to section 32A of the Limitation Act 1980.[36]Since 1996 there has been a special limitation period of only one year in relation to actions for defamation or malicious falsehood. The reason for this special rule is well known to the judges who hear such trials in London, and Sir Oliver Popplewell has had vast experience in conducting such trials. As long ago as August 1989 Michael Davies J, who was then the judge in charge of the Queen's Bench jury list, said that provided that the writ in a defamation action was issued with reasonable dispatch and the lawyers thereafter stuck to the timetable prescribed in the Rules of Court, there was no reason why the trial of a defamation action should not take place within 12 months at the most of publication. (See Listing Statement: Jury Actions, The Times 15th August 1989). In Hickman v Fletcher (unreported, 12th November 1992) Drake J, another judge with great experience of this type of case, observed at p 10C-D that the majority of libel actions were then brought on within 12 months or thereabouts of publication.[37]David Steel J has quoted in paragraphs 20 and 21 some extracts from the Report of Practice and Procedure in Defamation which was issued by the Supreme Court Procedure Committee in July 1991 and from the recent Pre-action Protocol for Defamation. The need to regard time as "of the essence" in defamation claims was further explained by Glidewell LJ in Grovit v Doctor (unreported, 28th October 1993) when he said (at p 15A):
"The purpose of a libel action is to enable the Plaintiff to clear his name of the libel, to vindicate his character. In an action for defamation in which the Plaintiff wishes to achieve this end, he will also wish the action to be heard as soon as possible."
[38]Mr Barca has shown us two recent unreported judgments by other judges who have great experience of defamation practice and procedure. In Hinks v Channel 4 Television Corp (3rd March 2000) Morland J rejected a submission to the effect that he should impliedly insert new words, such as "in the exceptional circumstances of the case" into section 32A(1) of the Limitation Act 1980, but he went on to say (at p 3):
"However in a sense any case, where the statutory limitation period is disapplied, is exceptional. The norm is 12 months. The justification for a 12 month limitation period long antedated its enactment in 1996."
[39]In Clarkson v Gilbert (26th February 2001) Eady J said (at para 14):
"Defamation and malicious falsehood claims have been placed in a special category with regard to limitation. Parliament thought it right to ensure that citizens were not to be vexed with litigation of this kind after the relatively short period of 12 months has elapsed, save in exceptional circumstances that would merit the courts 'disapplying' those strict provisions under section 32A of the Limitation Act 1980 (as specifically amended)."
[40]In the present case Sir Oliver Popplewell said (at p 10):
"'Wholly exceptional' may not be the words which appear in the Act, but it seems to me that given the background and the necessity for speedy vindication, the courts in libel actions should approach section 32A with some caution."
[41]I agree with Morland J that 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 32A which 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, as is enjoined to do in section 32A(2).[42]Mr Moloney QC suggested, rather optimistically, that we (and the judge) should adopt a relaxed view and calculate arithmetically that if the claimants had ignored all the requirements of the Pre-Action Protocol, had issued their claim form at the end of the primary limitation period, and then delayed serving it until the end of the four month period allowed by CPR 7.5(2), the defendants would have been no worse off than they were as events in fact turned out. Whether or not this unattractive submission would have found favour before the coming into force of the Civil Procedure Rules, it is not one to which any court could or should pay much attention in the new procedural climate.[43]The trouble with this case, as David Steel J has observed, is that the court was furnished with no evidence at all, except in the vaguest possible terms, about what happened or did not happen between about the end of April 1999 and 15th June 2000 when the matter was passed to the claimants' present solicitors. This was a matter which

the judge took into account (at p 4 of his judgment) when he also added:

"… in particular, it is not clear what if any steps were taken by the claimants during the 15-month period to ensure that notification was given to the BBC about this claim. You do not have to be a libel lawyer to know that a letter before action is a very important element in litigation …"
[44]It would be quite wrong for this court to be pre-emptive about the circumstances in which a court might properly be willing to exercise its discretion in favour of a claimant under section 32A. Obvious examples might be cases where it would be manifestly unjust to allow a defendant to take advantage of a very small slippage of time, as in the Hartley case, or cases similar to those canvassed by the Neill Committee in paragraph VIII.5 of its report where the claimant is awaiting the outcome of other investigations, but has made its complaint promptly (see para 20 of David Steel J's judgment). In Khalil v Bennett [2000] EMLR 996, indeed, this court reinstated a libel action when the claimant had delayed pursuing it while waiting for the outcome of other proceedings, but in that case he had issued his writ only a few days after the publication of the articles complained of. In other words the defendants in Khalil were not in the unhappy position of the defendants in this case who had no idea that they were potentially at risk of a defamation action until 27th July 2000, more than 15 months after the broadcast was transmitted.[45]If claimants place as little information before the court when inviting a section 32A discretion to be exercised in their favour as occurred in the present case, they should not be surprised if the court is unwilling to find that it is equitable to grant them their request. I can see no grounds on which we could interfere with the way in which Sir Oliver Popplewell exercised his discretion. I, too, would dismiss this appeal.[46]I have had the opportunity of reading in draft the observations made by Hale LJ in paragraphs 31 and 32 of her judgment about the recent recommendations of the Law Commission. While I can understand the Commission's desire to remove the anomalies to which they draw their attention in their report, it appears to me that the experience of the judges in this highly specialist field of practice needs to be taken carefully into account before there is any question of re-introducing a more relaxed limitation regime for defamation cases in this jurisdiction.

Order

Appeal dismissed with costs; costs to be assessed if not agreed (Order Does not form part of the approved judgment)

Cited in 37 later judgments

and 28 more of the most senior