What’s in a day – quite a lot actually!

April 21, 2017

In a recent English Court of Appeal decision Frank Otuo – and – Watchtower Bible and Tract Society of Britain [2017] EWCA Civ 316 – a defamation action which related to alleged slanderous words uttered in an announcement made at the Wimbledon Congregation of Jehovah’s Witnesses on 19 July 2012 – the Court had reason to consider the seemingly simple issue of computing when a limitation period for the bringing of proceedings expires.

Somewhat bizarrely in a number of interlocutory hearings the courts had managed to overlook what was well defined law on the point, and the matter came before the Court of Appeal on an appeal relating to a court’s discretion to extend the time period when in fact as it transpired, on the law as it stands, the limitation period had never expired, that point not having been appealed.

Interestingly no less than 10 Judges were involved in this particular matter.

The words in question had been uttered on 19 July 2012.

Proceedings for slander were issued on 19 July 2013.

The Defendant applied for the claim to be struck out on the ground that had been brought outside the primary limitation period of one year which applies to claims of slander by Section 4A of the Limitation Act 1980 (the Northern Ireland equivalent being Article 6 of the Limitation (Northern Ireland) Order 1989).  That section provides:

“………no such claim [that is, an action for libel or slander] shall be brought after the expiration of one year from the date on which the cause of action accrued.”

Master Leslie who heard the application held that the one year period ended at midnight on 18 July 2013.

No appeal was brought on that point although an appeal was brought on the question whether the Defendant was precluded from relying on the limitation defence by acquiescence and estoppel.

It was in the course of those proceedings that the Courts revisited the issue of the computation of time for limitation purposes and relying on the decision in Gentoo Group Limited and Another – v – Hanratty [2008] EWHC 627 (QB) the Master’s decision was considered erroneous in law as the day on which the cause of action accrues should be excluded from computation in arriving at the limitation period.  On this basis of computation, the limitation period would not have expired until 19 July 2013 and the proceedings had been properly brought.

At one of the earlier appeal stages in these proceedings, HH Judge Moloney QC gave his understanding of the substantive underlying question as to the date on which the limitation period expired, considering himself bound by various decisions and in particular Gentoo

“I am persuaded that the law is, and for many years has been, that the date on which the tort is committed is disregarded and that the count begins the following day so that the last day on which proceedings can be issued is the corresponding date, that is to say the same date of the same month, one year (or three years as the case may be) after the date of the tort.

I might add that this interpretation of the law accords with my own understanding of the law through many years of specialist practice in defamation. In that field, as the limitation periods were progressively shortened so that they are now much shorter than in other areas of litigation, the knowledge of the precise date on which proceedings must be commenced became of greater and greater importance.  I had the “corresponding date rule” in mind in my previous judgment in this matter when I pointed out that the proceedings were issued exactly 12 months after the date of publication.  The implication of what I was saying was that they had been issued right on the cusp of the limitation period but had not quite gone over it.

I therefore conclude that if the claimant had appealed against Master Leslie’s decision on this question of on what date the limitation period expired, he would have been entitled as a matter of law to succeed in his appeal.”

Could it be any more simple?

Unfortunately that was not the course that the proceedings took, the appeal having been taken on a different point.

It was left to the Court of Appeal, applying HH Judge Moloney’s analysis, to decide that in circumstances where the Judge’s decision was based on the incorrect premise that an Appellant had commenced its proceedings outside the limitation period (rather than within it) the case for disapplication on those very unusual facts was a compelling one.

This decision is an example of how matters can go wrong and simply keep on going wrong.

Litigation lawyers should be encouraged to remember HH Judge Moloney’s “corresponding date rule” although the real lesson to be learned is to ensure that proceedings are brought well in time so as to avoid any doubt both in the minds of the parties and, for that matter, the Judges.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.