Bewry v Reed Elseveir (UK) Ltd & Anor [2013] EWHC 3182 (QB)

[2013] EWHC 3182 (QB)

Case No HQ13D00512

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Venue Royal Courts of Justice

Date Thursday, 10 th October 2013

Before

HIS HONOUR JUDGE MOLONEY QC

(Sitting as a Judge of the High Court)

Between

BewryClaimant

Reed Elseveir (UK) Ltd & AnorDefendant

B E T W E E N:

RAYMOND RUSSELL BEWRY Claimant

-and-

REED ELSEVEIR (UK) LIMITED & Anor.Defendants

Transcribed by BEVERLEY F. NUNNERY & CO

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MR. D. F.SOTO-MIRANDA (of counsel) appeared on behalf of the Claimant.MISS Y. TAKATSUKI (of counsel) appeared on behalf of the Defendant.

J U D G M E N T(Approved)

[1]This is a libel claim. The claimant is a professional foster carer. He brings this claim in respect of reports of a previous High Court case concerning him, those reports being published online by the first and second defendants who are of course (particularly the first defendant) a very well-known legal publishing firm and particularly law reporting firm. There are two interlinked applications. The claimant seeks the permission of the court to extend the limitation period back past 6th February 2012 (which is the date twelve months before the issue of his claim form in this action when the normal libel defamation limitation period of twelvemonths would bite) - to extend that period back into late 2010 when, as he says unknown to him, the first publications of which he complains appeared online. Conversely, the defendants seek to dismiss the existing claim in respect of the period within the limitation period from 6th February 2012 for a few weeks in respect of one publication and a few months in respect of the other before they were voluntarily taken down. During that period, they say few if any actual publications in the form of hits on the relevant websites took place, so that the claim in respect of publications within the normal limitation period is not worth pursuing.

[2]The starting point for present purposes is the claimant’s dispute with Norfolk County Council which led to the litigation of which the words complained of are purportedly a report or summary. The details of that litigation can be very conveniently found in the judgment of Mr. Justice Holman in that case, given on 6th October 2010 under the number

[2010] EWHC 2545 (Admin)

. That judgment has been available on the public BAILLI website since a short time after it was delivered and, so far as is necessary, I refer to and incorporate what is said in that judgment as far as a detailed summary of the initial dispute is concerned.

[3]The salient points are these: In or about February 2006 the claimant became an approved foster carer for Norfolk County Council. (I should say that, in his career prior to that time, the claimant had on several occasions been involved in various classes of litigation which had gone to the attention of the Higher Courts, as indeed a search under his name on the BAILLI website will demonstrate. So, though not a lawyer, he is somebody not unfamiliar with the ways of the civil courts).

[4]In February and then later in May 2009, respectively, two fifteen year old boys were placed with him by the council as foster children. Not long afterwards, on 17th August 2009, the Social Services department of Norfolk County Council held a meeting, which was kept secret from the claimant and which he was not invited to participate in, the purpose of which was to consider and ultimately to decide to terminate his position as a carer for the boys. The two boys were away from him on holiday or respite care at that time, so the effect of the decision was that the boys were not to be returned to his care. I should emphasise because of the way in which the claimant puts his case that there is, so far as I am aware, no suggestion whatever that the council’s concerns that led to their taking that decision had anything to do with allegations of abuse, whether physical or sexual, by the claimant of any children in his care. I think it is important for all parties concerned that I should make that very clear.

[5]The claimant was extremely aggrieved when he was notified of this secret decision, unsurprisingly as it affected his livelihood and perhaps his reputation. As I have said he is fairly familiar with the ways of the courts and he commenced a Judicial Review claim, which was the claim that came before Mr. Justice Holman on6th October 2010. On that day Mr. Justice Holman gave an extempore judgment which was later transcribed and issued, among other places, on the BAILLI website. The fact that it was an extempore judgment is relevant because it may have presented certain difficulties to the defendants’ court reporters in reporting the case. Essentially (and nothing I say now should be taken as in any way substituting for the terms of the judgment itself) he upheld the Judicial Review claim, saying that under the relevant legislation the claimant was plainly a person affected by the decision who had a right to have been consulted prior to its being taken and ought to have been consulted. Mr. Justice Holman was scrupulous in his decision to avoid any findings about or, as far as possible, discussions of the merits of the case, so far as the council’s decision was concerned, let alone any question of the claimant’s fitness or otherwise to be a carer. He was only concerned with the procedural defect that the claimant had not been allowed to play any part in this important decision affecting him, but, on that point, he unhesitatingly found in the claimant’s favour.

[6]The next issue, chronologically speaking, concerns the manner in which the defendants reported that case (and I use the word “case” rather than “judgment” because the reports that were published are not merely purported transcripts of the judgment, but they are in the form of summaries of the case, setting out the nature of the dispute, the terms of the ruling and indeed some observations about the ruling). On the very next day, 7th October 2010, the first defendant published its case report on their well-known Lexis Nexis website. This is a subscription website intended (I think it is fair to say) primarily for the legal profession. It is important to emphasise that it is a subscription website because that means that its contents are not generally available to the public, for example, by a Google search unless the person happens to be a subscriber or otherwise have access to Lexis Nexis.

[7]A few months later, on 10th January 2011, the second defendant published a similar, I think identical report on a separate website called Community Care Inform (“CCI”). As its name suggests, this is a subscription website aimed not so much at lawyers as at professionals in the field of Community Care and specifically child care. Again, that would not be available to the public at large, though it can be seen that it would be targeted at a class of persons who might be concerned with the claimant since that is the area of work in which he practises. He is not a subscriber to that website, but he believes that people who know him and with whom he has contact in the professional sphere may well be readers of that website.

[8]On the same day, 10th January 2011, the second defendant also published on the open internet (i.e. available to all the world and not merely to subscribers) what has been described as a “snippet”. That snippet consists, as far as I can see, of essentially the first nine paragraphs or so of the report itself. That I should read in because it sets out the essence of the passage of which the claimant complains. It runs as follows:

“Details of the case The claimant was a single man who, in February 2006, became an approved foster carer for the defendant Local Authority. Subsequently he was approved as a level five foster carer, which was the highest possible level. He had looked after two children, RS since 6th March 2006 and SP since 27th May 2009. In August, the claimant required a respite break and both young men were moved to respite accommodation for two weeks. From early June, concerns were raised about the claimant's inappropriate behaviour [and I interject that those words “The claimant's inappropriate behaviour” are perhaps at the heart of his complaint in this case]. The defendant Local Authority began to have concerns regarding the suitability of the claimant to act as a foster carer. He was emailed in July, and asked to co-operate with the Authority, who specifically registered their concern that "you are refusing to be supervised in caring for the boys". Further correspondence was sent by the Authority on 29th July, registering a further concern that the social worker and the claimant had not spoken "face to face" since 9th June. The authority appointed a social worker to investigate. However, the claimant refused to co-operate with her.”

[9]The snippet ceases there, though (and I accept this for present purposes) the defendants say there would have followed a note to the reader to this effect “You may find the whole text of this case on the subscription part of our website”. And of course, informed readers might have been aware that such a decision could be found on BAILLI, though the snippet does not indicate, for example, whether this is a High Court case or what sort of case it may have been. I pause to observe that, whilst the publication of a purported full report of a court case on a legal website presents certain risks if one should make a mistake in the reporting or the emphasis, the publication of a snippet of this case poses obvious and considerable risks because the snippet does not go on to explain what the case was about or perhaps above all what the outcome was and that it was favourable, if anything, to the claimant in the case. It is as if a report of a criminal case were to set out a charge but not the verdict , and without making it very easy for the reader to discover what the verdict was. This comment is not intended to be any expression on the overall merits of this case as to which I, like Mr. Justice Holman in his case, am not going to express any view; but it does indicate that there is a legitimate defamation issue here and that it is perhaps not surprising that when these reports, and in particular the snippet, came to the claimant’s attention, he was aggrieved by them and did not regard them as a fair report of the proceedings in which he had been concerned.

[10]The claimant in his claim takes exception both to this snippet and to the fuller reports themselves which contain similar words. He attributes to them a high defamatory meaning, suggesting that the words “inappropriate behaviour” are used in a context where their natural and ordinary meaning would be understood to suggest that the claimant was a paedophile. I should emphasise that that is the meaning that he seeks to attribute to the words. It is what is known as an inferential meaning. The word “paedophile” or any words bearing a similar dictionary meaning are not used anywhere in any of the documents complained of. In fairness to both parties I should emphasise that. But the issue of meaning, like the issue of any defences that may apply, does not arise before me on these applications.

[11]As I say the snippet was published on the open internet on 10th January 2011, but it is the claimant’s position (and there is no reason on the evidence before me to doubt it) that he did not hear about the snippet, let alone the subscription publications, for about a year. He does in his evidence before me suggest that, during that time, he heard rumours about himself, which he now believes were attributable to people having read one or more of these documents online, but it is far too early to make any adjudication on that.

[12]By October 2011 a year had elapsed since the first publication of the first report on Lexis Nexis, but it is important to note that the publications were continuing publications and that this case arises under the pre-2013 law. The new Act will apply the “single publication” rule in respect of web publications, but this case arises under the old law where - even if the first date of publication of an internet libel has elapsed - still one can sue within the limitation period on subsequent continuing publications within the limitation period. but, in any event, the earliest publications began (if I can so put it) to “fall off the edge” in terms of the twelve month period from October 2011 on.

[13]The next period of chronology concerns what happened upon the claimant finding out about the publications. His evidence is that, on or very shortly before 27th February 2012, he found the snippet on the web and almost immediately complained. I should say that everything suggests to me that the claimant is someone who would certainly complain as soon as he found out about something published to his discredit. Therefore, I have no difficult for present purposes in accepting that he had not known anything about these publications until about the end of February 2012. Almost as soon as he complained, perhaps on 28th or 29th February 2012, CCI “took down” both the snippet and the full case report, so there is only a very short window between the anniversary of their first publication and the taking down of the words from CCI. The publications remained up on Lexis because of course the snippet had only taken the claimant’s attention to CCI and not necessarily to Lexis itself. Discussions then began to take place concerning the publication of a correction and so forth.

[14]On 11th May 2012, the claimant having found about the Lexis publication, that too was taken down and indeed a correction was published in the following words to go with an amended version of the case summary:

“Lexis Nexis would like to state that this digest has been amended in accordance with the official transcript from the Queen's Bench Division Administrative Court and regret any embarrassment caused to Mr. Bewry as a result of the original report.”

[15]The claimant was not satisfied with that and continued discussions with regard to redress for the publications that had been made. These culminated on 30th November 2012 in a settlement meeting. I should say that the claimant’s view was that the publications may not have been merely careless errors but may have been positively incited by malice, since there may be some connection between officers at Norfolk County Council and the editorial panel of CCI. Those are not issues that arise at this stage, but they are relevant as an indication of the concerns the claimant had during the period of the negotiations.

[16]Towards the end of 2012, perhaps in December, the claimant began to consult lawyers. I accept that it is likely that it was not until early 2013 that he became aware of the existence of a twelve month limitation period for libel cases. On 6th February 2013 he issued his present claim, which harks back to the very beginning in October 2010 and covers the whole period in question and all of the three publications complained of.

[17]The claimant’s application (which it is convenient for me to consider first) is based on section 32A of the Limitation Act 1980, which I should read in full because it is of central importance:

“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.” (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.” 18. (I interject that it is section 4(a) which imposes the twelve month limitation period for defamation.) “(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 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, orto be less cogent than if the action had been brought within the period mentioned in section 4A.” (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 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, orto be less cogent than if the action had been brought within the period mentioned in section 4A.”

The section is fairly detailed, emphasising that this is a discretionary exclusion based on equitable grounds and the balance of prejudice, and indicating that, whilst all the circumstances of the case should be had regard to, there are certain particular circumstances which the court should have regard to in reaching its decision.

[18]The section has been subject of consideration by the higher courts over the years and the relevant authorities were very conveniently summarised for me in paragraph 9 of Miss Takatsuki’s skeleton argument on behalf of the defendants. The principal authorities which she has cited to me and which I have considered are Steedman v. BBC [2002] EMLR 17, Buckley v. Dalziel [2007] EMLR 23, Adelson v. Associated Newspapers

[2007] EWHC 3028

and Brady v. Norman

[2010] EWHC 1215 (QB)

. The propositions that the authorities establish (so far as they are relevant to this application) are in particular that the discretion of a Judge dealing with an application under this head is largely unfettered, but, so far as defamation claims are concerned, the policy of the law as manifested in the twelve month limitation period is that defamation claims should be pursued with vigour and expeditiously. In balancing prejudice the court should bear in mind that a loss of a limitation defence is always a prejudice to a defendant who would otherwise be able to rely upon it.

[19]Taking into account those authorities and seeking to apply them to my exercise of analysis and discretion under the section, it seems to me that it is convenient in this case to go through the section as a checklist setting out my findings on the particular matters to which the section guides me, but also bearing in mind other factors special to this case that may be relevant to it.

[20]The first matter that I am asked to take into account under subsection (2) is the length of the delay. I have already indicated that it is fairly substantial. From the first publication complained of in October 2010 to the issue of the claim form in February 2013 is some two and a half years and progressively less for the later publications, so it is (at least initially) a substantial period though of course growing less with the continuing publication as the year goes by.

[21]Next and importantly I should consider the reasons for the delay on the part of the claimant, particularly delay in issuing proceedings, but one also takes into account other delays. I have already indicated that I accept as a matter of fact for the purposes of this application that the claimant was not aware until about 27th February 2012 that any of these articles had been published. That is not surprising given that the majority of the publications would have been on subscription websites which are largely unavailable to persons such as himself who do not subscribe. So the initial period of up to some fifteen months delay may be explained by his unawareness of the article. But the subsequent period of almost a year between February 2012 and February 2013 is a period of delay before issuing proceedings during which he was aware of the facts necessary to enable him to sue- that is to say the words of the publications and when and where they had been published. He spent that time in negotiation and, again, I accept that he spent it unaware that there was a one year limitation period which was beginning to gnaw away at his claim.

[22]The next question to which the section directs me is, once the claimant knew the relevant facts (that is to say from 27th February 2012), did he act: first, promptly and secondly, reasonably. As to promptness, he certainly acted promptly in laying his complaint. He complained immediately upon finding out about the snippet; and this is important because once a defendant has notice of a serious complaint of this kind that has or ought to have the effect of stopping the clock so far as certain forms of prejudice are concerned, because the defendant is now alert to the claim and is in a position then to take steps as to preserving evidence or making enquiries or otherwise acting in its own defence that it might otherwise reasonably have failed to take in ignorance of the claim. The claimant acted with rather less promptness so far as the negotiations were concerned. They took about a year, they rather dragged on. The defendant complains of particular periods of several weeks when its letters were sent and not replied to, but, on the other hand, I think it is fair to say that the claimant never turned his back on the process and he kept the correspondence up though it was not pursued with the urgency with which no doubt it would have been pursued if he had been aware of the limitation period. So I cannot describe his conduct as prompt, but, on the other hand, I would not describe it as gross or excessive delay.

[23]The next question is did he act reasonably once he knew the facts? My answer to that is allowing for the fact that he was ignorant of the limitation period: yes. I do consider that as a general proposition it is eminently reasonable to seek to negotiate a settlement to the libel claim rather than to issue proceedings at once. This view is supported by the terms of, for example, the defamation pre-action protocol. There is of course a tension between the desirability of negotiation and settlement of claim to that litigation on the one hand and the short limitation period on the other. If a person was fully advised as to the limitation period then, in the claimant’s situation, he would have issued a claim form immediately for protective purposes and negotiated with the defendant for an extension of time for service, thus preserving his rights whilst leaving open the opportunity for negotiation; but, for the reason that I have already given, the defendant was in fact in a not dissimilar situation by reason of the claimant’s original complaint in February 2012.

[24]The next question is an important one because it goes directly to the issue of the balance of prejudice: is relevant evidence likely to be unavailable or less cogent thanks to the delay? The defendant’s case on this is that they have suffered prejudice by reason of the delay. Obviously, on any view it is now some three years since the original judgment was handed down and, insofar as mere memory (memory unaided or uncorroborated by documents) is concerned, memories will obviously have faded over that time and would even have faded substantially by the time of the complaint. But it is their evidence that their reporter would not, in any event, have retained the notes of the hearing for the one year limitation period. The notes would probably have been disposed of once the approved transcript had been published on BAILLI well within that time. So it cannot be said that the delay outside the limitation period has occasioned that prejudice. That prejudice would already have existed if proceedings had been commenced, for example, at the end of the limitation period. Secondly, they say that the reporter has since left their employment and, as I say, they emphasise that recollections will fade. There are, however, factors bearing the other way. As I have said much of this prejudice would have accrued within the limitation period, in any event. They were put on notice from February 2012, which is only a short while outside the period from the first publication. Of course this was a case of continuing publication and, so long as they continued to publish and until the 2013 Act takes effect, they should have been aware that they remained at risk even outside one year from the original publication. Thirdly, and I consider this perhaps the most important point on evidential prejudice, the subject matter of the words complained of here is previous court litigation. By its nature it is a heavily documented subject matter. The hearing itself, not merely the judgment, will have been taped and it is probable that those tapes are still available (or at least they were available at the time of the first complaint). The case papers are certainly still available on the court file and in the hands of Norfolk County Council and it would appear likely they are in the hands of the claimant as well. So there is a great deal of documentary material available if required, which I have no reason to doubt continues to exist, on the basis of which the claim and the defence can fairly proceed.

[25]I now turn to the balance of prejudice. I accept, of course, that the loss of a limitation defence is a real and substantial prejudice to a defendant and that that applies to this case as much as to any other. However, I consider that, for the reasons that I have already given, that prejudice in this case is relatively limited, whereas the prejudice to the claimant from shutting him out from what is obviously the most valuable part of his claim - both in terms of duration and in terms of proximity to the original court decision - is a more substantial prejudice and therefore, on its face, outweighs the prejudice to the defendant from permitting them in the special circumstances that I have indicated to rely upon the limitation defence.

[26]Lastly, I come to the exercise of judicial discretion in assessing whether it is equitable to allow the action to proceed in all these circumstances. Overall, I emphasise particularly that the claimant did not know of the libel until the first year had gone by. Upon his learning of it he gave immediate notice of his complaint and then entered into bona fide negotiations for a further year in ignorance of the limitation period. The defendants as a well-known legal publishing firm either were or ought to have been aware of the limitation period throughout that time. In these circumstances, equity clearly indicates to me that this is one of the exceptional cases where it would be right for the court to extend the limitation period, given the claimant’s ignorance of the matter for the first year and his bona fide negotiation for the second, combined with the fact that the element of prejudice to the defendant in this case is less than it would be in many others.

[27]I would like to emphasise that in taking this decision I have not made any enquiry into the merits of the claim, whether as to the question of what (if any) defamatory meaning is borne, what (if any) defences - whether, for example, of justification or fair and accurate report might be available – or what damages might be recoverable. Applications, particularly in respect of meaning, were not before me; the case has not been pleaded to the defence stage; and it did not appear to me to be right or appropriate even to attempt to take those factors into account. But I emphasise this now in case it should be suggested in the future that anything I have said today pre-judges one way or the other the issue of meaning, for example, or the issue of a fair and accurate report. It is not intended to and I do not do so.

[28]Having made that ruling in respect of the limitation application, I can deal shortly with what is commonly described as the Jameel application to strike out the claim as disclosing no substantial tort. That application is directed solely to the very limited publications that appear to have taken place within the one year limitation period prior to issue of the claim form in February 2013. The defendant has produced evidence suggesting that only a very small number of hits were made on the words complained of on their various websites during that time, bearing in mind that the words were taken down shortly after February 2012 so that the period of publication within the year before the issue of the claim form is short. The defendant says that there were perhaps only five publications and that it considers it probable that most, if not all, of those were either outside the jurisdiction or publications to the parties themselves so that any actionable publication damaging to the claimant within that period would be very slight. The claimant seeks to challenge that evidence, though the evidence that he put forward against it did not appear to me to be of great weight. If I had formed a different view on the limitation application then it is very probable that I would have allowed the Jameel application, because the claim within the limitation period is very small and would probably not be worth pursuing, particularly bearing in mind that the likelihood is that any real damage done to the claimant’s reputation would have been done during the previous period so that these later publications would have added little or nothing to it. But, having decided to permit the claimant to pursue his complaint for the earlier periods, no useful purpose in terms of costs or in terms of the administration of justice would be served by severing and excluding the more recent publications (whatever they might prove to be) within the limitation period. The defendant would gain little or nothing practical by such a decision and it would merely complicate the litigation for the future. So in the light of my finding on the limitation application, I dismiss the Jameel application, which, as I say, was only premised on the later publications and would not have affected the earlier publications in any event.

[29]I have already mentioned that the claimant brought a second application for summary disposal, based essentially on the proposition that no defence has been served by the defendants. It may be that the defendants should have served a defence before now, though the rules prevent an application for default judgment against them whilst their Jameel strike-out application was alive. I have already indicated, however, that, though no defence has been entered, it is eminently understandable why none has been. It would not be appropriate to hear an application for summary disposal in this case prior to now giving the defendant a reasonable opportunity to file such a defence. I have therefore already indicated that I am going to adjourn that application unheard, to be restored at a later stage, if appropriate, after the service of defence.