Filippe Alexander Scalora v Clarion Housing Association Limited [2025] EWHC 882 (KB)

[2025] EWHC 882 (KB)Case No KB-2023-0003931
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/04/2025
Before
DEPUTY HIGH COURT JUDGE AIDAN EARDLEY KC
Between
FILIPPE ALEXANDER SCALORAClaimantCLARION HOUSING ASSOCIATION LIMITEDDefendant
for The Claimant did not appear and was not representedMichelle Caney (instructed by Clarke Willmott LLP) for DefendantHearing Hearing date: 2 April 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 10 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................DEPUTY HIGH COURT JUDGE AIDAN EARDLEY KCAidan Eardley KC:
[1]This is an application by the Defendant for a terminating ruling in a libel claim. The application was issued on 26 January 2024. It is regrettable that it has taken so long to come to Court. The application is made on the narrow ground that the Claimant faces insuperable problems on the issue of limitation. There are no cross-applications. Hearing in absence[2]The Claimant was initially represented by direct access counsel, who drafted the Particulars of Claim, but he has been acting in person from an early stage in the proceedings.[3]At 1:53 a.m. on the day of the hearing, the Claimant emailed the Court stating, “I have for the past few days been unwell. I am too unwell to attend today’s hearing.” The email did not seek an adjournment, neither did it contain any details of the Claimant’s condition or any supporting medical evidence (matters that would usually be required in order to make a successful adjournment application: see Decker v Hopcraft [2015] EWHC 1170 (QB)).[4]I decided that it would be in accordance with the Overriding Objective to proceed with the hearing in the Claimant’s absence. In reaching that conclusion, I took into account the matters I have already mentioned, the fact that the Claimant’s email contained a detailed written response to the Defendant’s skeleton argument, and the delays that have already occurred in this case. This application was originally listed for July 2024 but was adjourned at the request of the Claimant (with the Defendant ultimately consenting) on the grounds that he was seeking to re-engage counsel. He no longer relies on that (or any other) reason to suggest that the hearing of the application should not proceed. The Claimant’s interests are further protected to some extent by CPR 23.11, which permits him to request that the application be re-heard. Background[5]The Defendant is a provider of social housing and the Claimant was one of its tenants, holding a tenancy on a flat in Chelsea. On the Claimant’s pleaded case, the Defendant unlawfully evicted him in March 2020 while he was abroad and allowed someone else to move in. The Claimant brought separate proceedings challenging his eviction (the Unlawful Eviction Claim). His claim was dismissed by HHJ Simpkiss sitting as a Deputy High Court Judge in July 2024 (see [2024] EWHC 141) and permission to appeal was refused by the Court of Appeal. The reasons why that claim failed are not relevant to the issues before me.[6]It appears that, from around mid-June 2022, the Claimant sought to publicise his grievance against the Defendant and spoke to journalists. A Sun Online journalist contacted the Defendant seeking a comment on 5 June 2022, to which the Defendant responded by email on 7 June 2022 (having previously had some telephone discussions). That email said, “if you write a story we ask that you please withhold all of the names”. It then set out a statement for publication which stated: “Clarion takes a zero tolerance approach to tenancy fraud and there is a criminal investigation currently underway regarding this case. In order not to prejudice that inquiry, we cannot comment in detail. We can confirm that three individuals are the subject of this investigation: a Clarion staff member, a Clarion resident and the person now illegally residing in the home. All three of these individuals are suspected of colluding to commit tenancy fraud. If tenancy fraud is confirmed, we will take robust action and support the prosecution of anyone who has been involved”.[7]As will be noted, this quote did not include the Claimant’s name.[8]On 11 June 2022 an article was published on the Sun Online website under the headline, “SQUAT’S YOUR PROBLEM My flat was taken over by a stranger while I was abroad – now he lives there for free and nobody will move out” (the Sun Online Article). It reports serious allegations of fraud made by the Claimant against the Defendant and then includes a response from the Defendant. This passage begins with the words:
“In a statement, Clarion said one of their employees is believed to be involved in the tenancy fraud case – but they believe Filippe is in on it too, along with the man who is living in the home.”

It continues:

“A spokesperson told The Sun Online: “We can confirm that three individuals are the subject of this investigation: a Clarion staff member, a Clarion resident and the person now illegally residing in the home. All three of these individuals are suspected of colluding to commit tenancy fraud. If tenancy fraud is established, we will take all appropriate action and support the prosecution of anyone who has been involved” […] Clarion takes a zero tolerance approach to tenancy fraud and there is a criminal investigation currently underway regarding this case. In order to not prejudice that inquiry, we cannot comment in detail.”
After further comment attributed to the Defendant’s spokesperson (taken from the quotation the Defendant had provided), the article returns to the Claimant, stating:
“Filippe says the allegation of collusion as the “Clarion resident” named by the housing association is merely “a bad attempt by Clarion to blame a tenant for their own well published failings”
He says:
“A scammer working for Clarion targeted me during the pandemic. I have no clue who the man is who is living in my home – he is a random and complete stranger”
. It continues: In order to not prejudice that inquiry, we cannot comment in detail.”[9]The Claimant says that, in June 2022, he consulted counsel about a possible defamation action, but was advised to await disclosure of evidence from the Defendant in the Unlawful Eviction Claim (not yet issued at that point, but issued in August 2022).[10]Further articles about the Claimant’s dispute with the Defendant appeared on the website www.mylondon.news and on the website of the Daily Star on 4 July 2022 but neither party places reliance on those for present purposes.[11]The Defendant was contacted again by a MyLondon journalist on 7 October and gave a quote for publication on 10 October 2022. The quote was the same as given to the Sun except that this time, it included the Claimant’s name after the words “a Clarion resident”.[12]On 19 October 2022 MyLondon published a further article online (the MyLondon Article), under the heading, “A stranger took over my house when I was abroad, now I’m forced to live two hours away”. This repeats the Claimant’s allegations and adds some more information about the unsatisfactory accommodation in which is now forced to live. Again, there is a quote attributed to a spokesperson for the Defendant: “Clarion takes a zero tolerance approach to tenancy fraud and there is a criminal investigation currently underway regarding this case. In order not to prejudice that inquiry, we cannot comment in detail. We can confirm that three individuals are the subject of this investigation: a Clarion staff member, a Clarion resident (Mr Scalora) and the unauthorised person now residing in the home. All three of these individuals are suspected of colluding to commit tenancy fraud. If tenancy fraud is established, we will take all appropriate action and support the prosecution of anyone who has been involved”. (my underlining)[13]The MyLondon Articlegoes on to quote a spokesperson for the Metropolitan Police who states that the Police had received a report but had not made any arrests.[14]Also on 19 October 2022, an article appeared on the Daily Mirror website under the same headline, and in materially the same terms as the MyLondon Article, including the same quote attributed to the Defendant’s spokesperson and the same quote attributed to the police (the Mirror Online Article).[15]The barrister acting for the Claimant in the Unlawful Eviction Claim emailed the Defendant on 20 October 2022 complaining about one of these articles (it is not clear which), and again on 11 November 2022, complaining about the Mirror Online Article. These emails, though they referred to a potential defamation claim, were not letters of claim that complied with the Pre-Action Protocol for Media and Communications Claims.[16]The Claimant contends that the advice he received was still that he should not bring libel proceedings until he had obtained disclosure from the Defendant casting light on the existence and nature of the purported investigation referred to by the Defendant’s spokesperson in the articles. He says that the Defendant was unforthcoming with this and that it was only when witness statements were exchanged in the Unlawful Eviction Claim on 10 October 2023 that he could see that (he says) there was no evidence to support an allegation of suspected fraud against him. He says he instructed his lawyers to draft libel particulars two days later. He issued his claim on 16 October 2023, just short of one year from the first publication of the MyLondon Articleand the Mirror Online Article and some 16 months after first publication of the Sun Online Article. The Statements of case[17]Paragraph 7 of the Particulars of Claim (settled by counsel) alleges that, “On 18th October 2022, the Mirror online newspaper, MyLondon, and the Sun online newspaper which together have a readership of many millions of readers published articles concerning the claimed unlawful occupation of the property…”. Paragraph 8 then pleads that the Defendant caused to be published in those articles certain specified defamatory statements: Mirror online “Clarion takes a zero tolerance approach to tenancy fraud and there is a criminal investigation currently underway regarding this case. … We can confirm that three individuals are the subject of this investigation: a Clarion staff member, a Clarion resident (Mr Scalora) and the unauthorised person now residing in the home. All three of these individuals are suspected of colluding to commit tenancy fraud... “ MyLondon “ We can confirm that three individuals are the subject of this investigation: a Clarion staff member, a Clarion resident (Mr Scalora) and the unauthorised person now residing in the home. All three of these individuals are suspected of colluding to commit tenancy fraud. If tenancy fraud is established, we will take all appropriate action and support the prosecution of anyone who has been involved”. The Sun online “In a statement Clarion said one of their employees is believed to be involved in the tenancy fraud case – but they believe Filippe is in on it too along with the man who’s living in his home.”[18]Paragraph 9 of the Particulars of Claim attributes the same meaning to all three statements, viz, “that the Defendant had reasonable grounds to suspect that the Claimant had committed the criminal offence of tenancy fraud with two others for financial gain and that he had acted dishonestly and that his account of having been unlawfully deprived of his home was dishonest.”[19]The Particulars of Claim allege injury to reputation (but not, in terms, or with any particulars, “serious harm” for the purposes of Defamation Act 2013, s1(1)). There is also a claim for special damages consisting of loss of earnings. There is no pleaded explanation of how these alleged losses were caused by the publications complained of.[20]The Defence, filed on 16 November 2023, states that the Defendant is unaware of any article published by the Sun Online on 18 October 2022 and that it is only aware of the June 2022 Sun Online Article. It pleads a limitation defence in respect of that article. The Defence also treats the Particulars of Claim as addressing the Mirror Online Article and the MyLondon Article (although both were published on 19, not 18 October 2022) and pleads a limitation defence in respect of those in reliance on Defamation Act 2013 s8, contending that the statements complained of in those articles are substantially the same as what the Defendant published to the Sun Online journalist on 7 June 2022 and/or what appeared in the Sun Online Article published on 11 June 2022. The Defence goes on to deny responsibility for publication of the statements complained of. The Defence also contends that the Claimant has failed to articulate a proper case on serious harm; it puts forward a slightly different meaning; and it sets out defences of truth, honest opinion, and common law qualified privilege.[21]At a CMC on 11 March 2023, Master Gidden directed the Claimant to file a Reply. The Claimant did so on 8 April 2024 (apparently having settled it himself).The Reply describes the dates attributed to the Mirror Online Article and the MyLondon Article as typographical errors and confirms that they were published on 19, not 18, October 2022. It is silent on the question of whether there was a further Sun Online Article published on or about 18 October 2022. The Reply contains a bare denial of the limitation defence and then asserts reliance upon s 32(1)(b) of the Limitation Act 1980 (concealment), and alternatively, s32A (discretionary exclusion of the 1-year limitation period). The “concealment” is alleged to consist in failures by the Defendant to disclose what evidence it had to support the contention that there were grounds to suspect him of fraud. The Defendant’s application[22]The Defendant issued the present application on 26 January 2024 (so, some time after the Defence but before the CMC in front of Master Gidden and hence before the Reply). It seeks strike out or summary judgment on the whole claim, but only on limitation grounds. It is supported by a witness statement of Lucy-Anna Deva Pond which sets out the Defendant’s various responses to media enquiries and the resulting articles.[23]The Claimant filed a witness statement in response on 23 March 2025 and a very lengthy exhibit, mostly consisting of correspondence with the Defendant concerning his underlying grievance. It does not challenge the facts asserted by Ms Deva Pond. Legal Principles Limitation in libel actions[24]Section 4A of the Limitation Act 1980 imposes a one-year limitation period for claims in libel, slander and malicious falsehood, running from the date on which the cause of action arises. In a libel claim, the cause of action arises upon publication of the statement complained of. At common law, a new publication occurs (and hence, time starts running again for limitation purposes) each time the statement is read by a third party.[25]Section 32 of the Limitation Act 1980 provides that, in certain circumstances, the limitation period begins to run from some later date than the date on which the cause of action arose. In particular, it relevantly provides:
“[…] where in the case of any action for which a period of limitation is prescribed by this Act, either (a)[…] (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant […] ( c) […] the period of limitation shall not begin to run until the plaintiff has discovered the …concealment… or could with reasonable diligence have discovered it.” the period of limitation shall not begin to run until the plaintiff has discovered the …concealment… or could with reasonable diligence have discovered it.”

the period of limitation shall not begin to run until the plaintiff has discovered the

[26]A “fact relevant to the plaintiff’s right of action” is one that a claimant would have to plead in order to set out a prima facie case. The term does not extend to facts which might assist a claimant to assess the strength of his claim: see Johnson v Chief Constable of Surrey [1992] WL 895624 (CA), quoted by Morland J in Woodruffe v Fallows [2002] EWHC 3206 (QB) at [25].[27]Section 32A of the 1980 Act provides: Discretionary exclusion of time limit for actions for defamation or malicious falsehood(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[28]This discretion to exclude (or, as it is often termed, “disapply”) the limitation period has been described as “wide” and “largely unfettered” in terms of what may be taken into account. However, because of the well-known policy reasons that require libel claimants to “get on with it”, it is a discretion that should only be exercised exceptionally, and there is a heavy burden on the claimant to explain their delay: Bewry v Reed Elsevier UK Ltd [2015] 1 WLR 2565 at [5]-[8] (Sharp LJ).The Court must look both at the delay in issuing the claim in the first place and also any delay thereafter, including delay in seeking to have the limitation period disapplied: Bewry at [38].[29]Losing the ability to sue is always, in some degree, prejudicial to a claimant but the extent of the prejudice depends on the strength of the claim or defence. Where a claimant has delayed on the basis of legal advice, the fact that they may have a claim against their legal advisors reduces the prejudice occasioned by a refusal to exclude the limitation period. A decision to exclude the limitation period is always highly prejudicial to a defendant. The effect of the delay on the ability of the defendant to defend the claim is important but it is not decisive, save perhaps where the limitation defence could be described as a “complete windfall”: Steedman v BBC [2002] EMLR 17 (CA).[30]Claimants who seek to invite the Court to exercise its discretion under s32A usually make an application to the Court at an early stage in the proceedings. The good sense in that is obvious. However, there is nothing in the section that requires this. In principle a claimant can raise the issue in a statement of case and then seek to have it determined at trial.[31]Section 8 of the Defamation Act 2013 provides: 8.— Single publication rule (1) This section applies if a person—(a) publishes a statement to the public (“the first publication”), and(b) subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same. (2) In subsection (1) “publication to the public” includes publication to a section of the public. (3) For the purposes of section 4A of the Limitation Act 1980 (time limit for actions for defamation etc) any cause of action against the person for defamation in respect of the subsequent publication is to be treated as having accrued on the date of the first publication. (4) This section does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication. (5) In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the matters to which the court may have regard include (amongst other matters)— (a) the level of prominence that a statement is given; (b) the extent of the subsequent publication. (6) Where this section applies— (a) it does not affect the court's discretion under section 32A of the Limitation Act 1980 (discretionary exclusion of time limit for actions for defamation etc), and (b) the reference in subsection (1)(a) of that section to the operation of section 4A of that Act is a reference to the operation of section 4A together with this section.[32]The title “single publication rule” is a misnomer, since the section does not change the common law position that a new publication occurs every time a statement is read. What it changes is how the law of limitation applies. To rely on the section a defendant must show that it was responsible for the publication of a statement to the public (‘the first statement’) and that the statement whose publication is now being sued upon was the same statement or “substantially the same”. As to this part of the provision, the Explanatory Notes to the Act state:
“[61]…The aim is to ensure that the provisions catch publications which have the same content or content which has changed very little so that the essence of the defamatory statement is not substantially different from that contained in the earlier publication. Publication to the public has been selected as the trigger point because it is from this point on that problems are generally encountered with internet publications and in order to stop the new provision catching limited publications leading up to publication to the public at large…”
[33]In Parish v Wikimedia Foundation, Inc. [2024] EWHC 2301 (KB), at [77]-[82], Steyn J held that two versions of a Wikipedia page alleging criminality were “substantially the same”. Despite some of the language having been changed through editing, “The gravamen of the offence, and the resulting sentence and ban, is precisely the same”.[34]Even if the subsequent statement is substantially the same as the first statement, the section will not assist a defendant if the manner of that publication is materially different from the manner of the first publication. As to this, the Explanatory Notes say:
“[63] …A possible example of this could be where a story has first appeared relatively obscurely in a section of a website where several clicks need to be gone through to access it, but has subsequently been promoted to a position where it can be directly accessed from the home page of the site, thereby increasing considerably the number of hits it receives.”
Terminating rulings[35]CPR 3.4(2)(a) permits the Court to strike out a statement of case if it “discloses no reasonable grounds for bringing or defending the claim”. As the language of the rule makes clear, it requires scrutiny of the pleaded case; it is not usually an evidence-based exercise. It will sometimes be possible to strike out a case on limitation grounds, for example where the claim alleges libel in respect of a statement published more than a year before the date of issue and makes no case that the limitation period should be postponed or excluded. In other cases however, limitation challenges are better dealt with under CPR Part 24. That is so in this case, because the Defendant makes evidence-based arguments as to the existence of a “first publication” that is substantially the same as the later publications sued upon, and as to the absence of any material differences between the manner of the first publication and the later publications.[36]The approach that the Court must take when considering a defendant’s application for summary judgment was comprehensively set out by Lewison J in Easy Air Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15]:
“i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 2 All ER 91 ; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63 ; vii)On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725 .”
The Sun Online Article[37]It is clear that the Claimant wished to sue on the Sun Online Article published in June 2022 and that its date of first publication has been misstated in the Particulars of Claim. The Claimant has never expressly admitted this (as he has done with the dates of the Mirror Online Article and the MyLondon Article) but the Defence pleads that no Sun Online article other than the one published in June 2022 has been located and the Claimant has not responded by putting any other article in evidence. Rather, his witness statement addresses the Sun Online Article published in June 2022 and seeks to explain why he did not issue proceedings within a year of its publication.[38]The Claimant has not applied to amend the Particulars of Claim to insert the correct date of the Sun Online Article and such an application, if made, would have no realistic prospect of success. An amendment, if granted, would be deemed to take effect from the date of the original Particulars of Claim (16 October 2023), and so an amended claim on the Sun Online Article would still be time-barred, because the Particulars of Claim were filed some 16 months after the Sun Online Article was initially published. There is no suggestion that the Sun Online Article has been amended or republished in a different manner since it first appeared, so s8(3) of the 2013 Act would straightforwardly apply. The Claimant would therefore have to satisfy the Court that s32(1)(b) of the 1980 Act applied, so as to postpone the commencement of the limitation period, or he would have to persuade the Court to exclude the limitation period under s32A. Neither course has any real prospect of succeeding.[39]As to s32(1)(b), the “concealment” that the Claimant alleges is said to consist in the Defendant’s refusal or reluctance to disclose to him what evidence it had that could give rise to a suspicion that he was guilty of fraud. He says this continued until he was served with the Defendant’s witness statements in the Unlawful Eviction Claim in October 2023. That submission is hopeless because, as explained above, matters going to the existence or strength of a potential defence do not fall within the term “any fact relevant to the plaintiff’s right of action”. He does not allege that the Defendant withheld any facts that he needed to know in order to plead a claim for libel.[40]As to s32A, Bewry makes clear that there is a heavy burden on a claimant to explain their delay; that I must consider the delay in issuing proceedings by reference to the short statutory limitation period and the policy underlying it; and that I must also consider post-issue delay, including any delay in seeking to disapply the statutory limitation period. In this case, the pre-issue delay was some 4 months – a third of the one-year limitation period - and there was then a further delay of some 6 months before the Claimant sought to invoke s32A in his Reply in April 2024, despite the fact that limitation had been squarely raised by the Defence in November 2023 and that the Defendant had applied for a terminating ruling on limitation grounds in January 2024.[41]The Claimant says that he delayed issuing proceedings because he wished to wait and see what evidence the Defendant might have to substantiate its allegations. This is an inadequate justification. The Claimant cannot bring himself within s32A(2)(b), because facts going to the strength of a potential defence are not “facts relevant to the cause of action”: that term has the same meaning here as it does in s32(1)(b) (see C v Mirror Group Newspapers Ltd [1997] 1 WLR CA, construing an earlier formulation of s32A). I do not accept, as the Defendant appeared to submit, that a claimant’s ignorance of the defendant’s position will always be irrelevant to the exercise of the s32A discretion. Section 32A(2)(b) is just one matter to which the Court must have “particular” regard. The Court must still have regard to “all the circumstances”. If, for example, a defendant fails to comply with their obligation under the Pre-Action Protocol to state the facts on which they are likely to rely upon in support of a substantive defence, that might count quite strongly in a claimant’s favour. That is not the case here though. The Claimant never sent the Defendant a Protocol-compliant letter of claim requiring a response.[42]The Claimant’s post-issue delay in seeking to invoke s32A is completely unexplained.[43]The prejudice to the Claimant, if the Court were to decline to exclude the limitation period, would appear to be limited. The pleaded case does not look strong. The complete absence of a pleading on “serious harm” is significant. Moreover, if it is true that the Claimant delayed issuing proceedings on the basis of legal advice (and I stress that I only have his word for this: no advices from his advisors have been disclosed), the prejudice is further reduced by the possibility of a claim against his advisors.[44]The prejudice to the Defendant, were the Court to deprive it of its limitation defence, is also somewhat reduced because, unless it can successfully invoke section 8 of the 2013 Act, it will have to defend the part of the claim that is based on the publication of its statements in the MyLondon Article and the Mirror Online Article, which raises essentially the same issues as the claim in respect of the Sun Online Article.[45]Nevertheless, given the length of the delay and the inadequate explanations for that delay, I consider that there is no realistic prospect of the Court exercising its discretion under s32A in the Claimant’s favour. Accordingly, there is no realistic prospect of the Court permitting the Claimant to amend the Particulars of Claim so as to allow him to sue on the Sun Online Article.[46]I shall therefore grant summary judgment against the Claimant on his claim in respect of the Sun Online Article. The MyLondon Article and the Mirror Online Article The Defendant’s case[47]The Defendant’s case is that the claim in respect of these articles is time-barred by reason of s8 of the 2013 Act and that there is no realistic prospect of a trial judge reaching the opposite conclusion.[48]The Defence, and the Defendant’s application, contend that, for the purposes of s 8(1), the “first publication” consists in either the Defendant’s provision of a quote to the Sun Online journalist or the publication of that quote in the Sun Online Article. In her submissions, Miss Caney concentrated on the latter. She was right to do so. Whatever the true meaning is of “publication to the public”, it must surely exclude publication to an individual journalist.[49]Miss Caney submits that s8 does not require a line-by-line examination of the article in which the statement complained of appeared and the prior article on which a defendant relies for s8 purposes. In her skeleton argument, she provided a table setting out passages from the Sun Online Article which she relies on as “the first publication” for the purposes of s8(1) and the equivalent passages in the MyLondon Article and the Mirror Online Article. I reproduce it here, with underlining to identify the parts of the MyLondon Article and the Mirror Online Article which are relied on in the Particulars of Claim. It will be noted that the Defendant does not seek to include, as part of the “first publication” the paragraph in the Sun Online Article that precedes the direct quotation from the Defendant’s spokesperson, and in which the Claimant is expressly named. The Sun – 11 June 2022 MyLondon – 19 October 2022 Mirror – 19 October 2022 A spokesperson told The Sun Online:
"We can confirm that three individuals are the subject of this investigation: a Clarion staff member, a Clarion resident and the person now illegally residing in the home. Meanwhile, a spokesperson for Clarion housing said “Clarion takes a zero tolerance approach to tenancy fraud and there is a criminal investigation currently underway regarding this case. In order to not prejudice that inquiry, we cannot comment in detail. Meanwhile, a spokesperson for Clarion housing said: "
Clarion takes a zero-tolerance approach to tenancy fraud and there is a criminal investigation currently underway regarding this case. In order to not prejudice that inquiry, we cannot comment in detail. "All three of these individuals are We can confirm that three "We can confirm that three suspected of colluding to commit individuals are the subject of this individuals are the subject of tenancy fraud. investigation: a Clarion staff this investigation: a Clarion "If tenancy fraud is established, member, a Clarion resident (Mr staff member, a Clarion we will take all appropriate action Scalora) and the person now resident (Mr Scalora) and the and support the prosecution of residing in the home. All three of unauthorised person now anyone who has been involved." these individuals are suspected residing in the home. All three The spokesperson said they also of colluding to commit tenancy of these individuals are have a robust policy for fraud. If tenancy fraud is suspected of colluding to investigating any staff member confirmed, we will take robust commit tenancy fraud. If accused of fraudulent activity action and support the tenancy fraud is established, and this is being acted on now. prosecution of anyone who has we will take all appropriate The spokesperson said an been involved. action and support the investigation is ongoing. Our policy regarding tenancy prosecution of anyone who has “Clarion takes a zero tolerance fraud is available on our website been involved. approach to tenancy fraud and and all Clarion residents are "Our policy regarding tenancy there is a criminal investigation made aware of their fraud is available on our currently underway regarding responsibilities. We also have a website and all Clarion this case. robust policy for investigating any residents are made aware of "In order to not prejudice that staff member accused of their responsibilities. We also inquiry, we cannot comment in fraudulent activity and this is have a robust policy for detail." being acted on now.” investigating any staff member They said all Clarion residents accused of fraudulent activity are made aware of their and this is being acted on now.” responsibilities when moving into a property.[50]Miss Caney acknowledges that the MyLondon Article and the Mirror Online Article both inserted the Claimant’s name into the verbatim quote attributed to the Defendant’s spokesperson, whereas the Sun Online Article did not. She submits nonetheless that the statements complained of in the MyLondon Article and the Mirror Online Article are substantially the same as the statement published in the Sun Online Article. She relies on the fact that the Claimant had voluntarily identified himself to readers of the Sun Online by approaching them to have a story about him published, and then by providing a responsive comment to the Defendant’s statement, which was included at the end of the Sun Online Article. Miss Caney further submits that, for the purposes of s8(4) there were no material differences between the manner in which the statement was first published in the Sun Online Article and the manner in which it was subsequently published in the MyLondon Article and the Mirror Online Article. She says that the Defendant’s statement was given equal prominence in each article and that each article was a widely published online news article. The Claimant’s case[51]The Claimant contends that the s8 issue is a matter that must be left for determination at trial because there are so many differences between the Sun Online Article and subsequent publications that they cannot be examined and ruled upon before a trial. He says that there have been many subsequent publications and that, upon doing a computer-based comparison between some of these subsequent publications and the Sun Online Article, he immediately identified 24 material differences. He submits that no subsequently published article is substantially the same as the Sun Online Article. He also submits (without further detail) that “The levels or [sic] prominence are different, and so is the extent and level of publication”. Discussion and decision[52]I agree with Miss Caney that s8 requires a comparison between whatever statement the Claimant has complained of and whatever statement the Defendant chooses to put forward as a “first publication” for the purposes of s8(1) of the 2013 Act. I therefore reject the Claimant’s submission that s8(1) requires a line-by-line comparison of the entire articles in which the statements appeared. The required comparison will usually be something that can be carried out on the basis of undisputed evidence prior to a full trial. That is certainly the case here.[53]There is a fundamental tension between the Defendant’s Defence and the application it has brought. The Defence appears to deny responsibility for the publication of any statements that appeared in the media articles (albeit that, in the case of the Sun Online Article, the denial is strictly speaking only in respect of the parts of that Article that the Claimant has chosen to sue on). It seems to me that, if a Defendant is to avail itself of s8, it must affirm that it is responsible (or must be found responsible) for what it identifies as the “first publication”. If a defendant was not responsible for the “first publication”, s8 cannot assist. The section does not protect a defendant who republishes someone else’s statement. However, I pass over this point because there are further reasons why the present application must fail.[54]In this case, the Defendant accepts that there is a difference between the statement it relies upon as the “first publication” and the subsequent publications in the MyLondon Article and the Mirror Online Article, namely that the quotes attributed to the Defendant in the latter two articles specifically named the Claimant as a fraud suspect whereas the verbatim quote in the Sun Online Article did not.[55]In my judgement, when determining whether a statement that is relied on by a defendant as the “first publication” is “substantially” the same as a statement that the defendant subsequently publishes, the Court must consider the position from the claimant’s perspective. Section 8 is, after all, a provision that may deprive a claimant of their right to bring a claim. The question is therefore whether any differences in the content of the newly-published statement make a difference from the claimant’s perspective that is sufficient to excuse them for not having sued earlier. My analysis is consistent with the explanatory notes (which direct attention to the “essence of the defamatory statement”) and Steyn J’s approach in Parish when she considered whether the “gravamen” of the allegation remained the same, despite some changes in wording.[56]Adopting this approach, in many cases the fact that the “first publication” did not expressly identify the claimant might very well justify a conclusion that a subsequently published statement that did expressly identify the claimant was not substantially the same. Whether or not a statement expressly identifies the claimant will often be critical to a libel claimant. A claimant who is not expressly identified may have no claim at all, or may have to resort to a “reference innuendo” (a case based on an assertion that certain publishees would have understood the statement to refer to the claimant by reason of their knowledge of specified facts) which may in turn severely limit their ability to establish “serious harm” as required by s1 of the 2013 Act (it being harder to prove a case under s1 where the relevant cohort of publishees is small or consists of people who know the claimant so well that they may be disinclined to believe the published allegations).[57]The Defendant submits that the addition of the Claimant’s name in the quote attributed to it in the MyLondon Article and the Mirror Online Article, is not a substantial difference because, by bringing about the publication of the Sun Online Article and then giving a for-publication quote in response to the Defendant’s statement, the Claimant volunteered himself as the subject of whatever the Defendant said about him.[58]I do not accept the logic of the Defendant’s submission: I do not think that the comparison exercise mandated by s8 can be affected by questions of consent to publication. However, I do agree that, in the circumstances of this case – and on the assumption that the Defendant is responsible for the “first publication” it has identified - the addition of the Claimant’s name in the quotes published in the MyLondon Article and the Mirror Online Article did not give rise to a “substantial” difference between those statements and the verbatim quotation attributed to the Defendant in the Sun Online Article. In libel law, a statement must always be construed in light of the context in which it was published. The quotation in the Sun Online Article plainly refers to the Claimant when that article is read as a whole. Indeed the Claimant’s name is supplied immediately before the verbatim quote begins, and in a statement that is attributed to the Defendant. The Claimant would have had no difficulty in establishing a case on reference if he had chosen to sue on the verbatim quote as published in the Sun Online Article.[59]It follows that, on the facts of this case (and again, assuming that the Defendant was indeed responsible for the “first publication” it has identified) there was no substantial difference between the “first publication” in the Sun Online Article and the statements subsequently published in the MyLondon Article and the Mirror Online Article. To quote the explanatory notes, the “essence of the defamatory statement” is the same.[60]However, I have greater sympathy with the Claimant’s case when it comes to s8(4) & (5). It seems to me that, through publication in the MyLondon Article and the Mirror Online Article, the Defendant’s statement is likely to have reached a group of publishees that was quantitively greater than, and qualitatively different from, the readers of the Sun Online Article. Newspapers, both in hard copy and online, are directed at particular demographic groups. Only dedicated news junkies (and libel lawyers) tend to read more widely. This is an argument commonly run by libel claimants when faced with a submission that their damages should be reduced pursuant to Defamation Act 1952 s 12.[61]This is a matter of which I think I could take judicial notice, if necessary. However, I do not need to go that far. Evidence about the overlap between readerships of different news sources is readily available. It seems to me that there is a realistic prospect of the Claimant obtaining such evidence for trial and demonstrating that, through publication in the MyLondon Article and the Mirror Online Article, the Defendant’s statement reached a wider and different cohort of publishees and was therefore published in a materially different manner from its publication in the Sun Online Article. Conclusion[62]For these reasons I grant summary judgment to the Defendant in respect of the claim concerning the Sun Online Article but refuse to strike out or to grant summary judgment on the claims concerning publication in the MyLondon Article and the Mirror Online Article. There may be many good reasons why those claims should fail, but it is not for me to consider such arguments when ruling on the present, narrowly-framed, application.