Court of Appeal allows appeal against decision not to exercise discretion under s 32A of Limitation Act 1980 to exclude time limit for bringing action for slander

On 19 July 2013, the claimant, Mr Frank Otuo, issued proceedings for slander against the Watchtower Bible and Tract Society of Britain, the representative body of the Jehovah’s Witnesses, in respect of an announcement made in July 2012 at the Wimbledon Congregation of Jehovah’s Witnesses, by Mark Lewis, a local congregation elder. The words said to have been spoken were: “Frank Otuo is no longer one of Jehovah’s Witnesses” (or “disfellowshipped” as it is described). Mr Otuo alleged that the words meant by innuendo that he was remorselessly engaged in one of the following activities: fraud, paedophilia, theft, adultery, fornication, and drunkenness.

The Watchtower asserted in its defence, amongst other things, that the claim was not justiciable, that the words were not defamatory of Mr Otuo, and that they had been published on an occasion of qualified privilege.

Section 4A of the Limitation Act 1980, as amended, provides that: “… 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”.

Following service of its defence, the Watchtower applied to strike out the claim on the ground that it had been brought outside the primary limitation period of one year.

On 29 July 2014, Mr Otuo issued an application to disapply the primary limitation period made pursuant to s 32A of the Limitation Act.

On 30 October 2014, Master Leslie found in favour of the Watchtower and the claim was struck out. He held that the one-year period expired on 18 July 2013, i.e. one day before Mr Otuo had issued the claim. He did not consider Mr Otuo’s application.

On 9 March 2015, His Honour Judge Parkes considered Mr Otuo’s application, but declined to exercise discretion under s 32A to disapply the one-year limitation period. He held that Mr Otuo’s reasons for failing to apply within the time limit were inadequate. Mr Otuo appealed.

On 21 April 2015, Mr Otuo applied for permission to appeal Master Leslie’s decision of the 30 October 2014, based on Mr Otuo’s recent discovery of the decision of Mr Justice Eady J (as he then was) in Gentoo Group Ltd v Hanratty [2008] EWHC 627 (QB), which had not been cited to Master Leslie, and which said that the day on which a cause of action accrues is excluded from computation in arriving at the limitation period. On this analysis, Mr Otuo said that the Master’s decision was erroneous in law: the limitation period had expired on the 19 July 2013, rather than on 18 July 2013, as the Master had found. Permission was granted.

Hearing the appeal on 14 May 2015, His Honour Judge Moloney QC found that the limitation period had indeed expired on 19 July 2013, not 18 July 2013.

Hearing Mr Otuo’s appeal in relation to s 32A of the Limitation Act, Lady Justice Sharpe (giving the lead judgment in the Court of Appeal) found that the day on which a cause of action for libel and slander accrues is excluded from the computation in arriving at the limitation period, as Eady J had held.

Two things flowed from this, Sharpe LJ said. First, the claim in this case had been brought in time. Secondly, the application before HH Judge Parkes QC had proceeded on a false basis, namely, that the proceedings had been issued out of time when they had not.

Sharpe LJ held that, since the Court of Appeal now knew, as HH Judge Parkes QC had not known, that Mr Otuo’s claim for slander had been brought (marginally) within the time limit specified by s 4A of the Limitation Act, rather than (marginally) outside it, it would be “quite wrong for us to exclude these matters from our consideration”. The issue of timeliness had been highly material to the exercise of the judge’s discretion. Whilst no criticism could be made of the way the judge dealt with the matter at the time, the short point was that, the case before him had plainly proceeded on a false basis, which flawed the exercise of his discretion and led him to make a decision that was wrong.

Sharpe LJ noted that the discretion afforded by s 32A was largely unfettered and required the court to balance any prejudice to the claimant or defendant in allowing the action to proceed or not, taking into account all the circumstances of the case (Steedman v BBC [2001] EWCA Civ 1534).

Sharpe LJ said that a number of factors that potentially told against the exercise of discretion in Mr Otuo’s favour had been correctly identified by the court below. However, in circumstances where the judge’s decision was based on the (incorrect) premise that Mr Otuo had commenced his proceedings outside the applicable limitation period, rather than within it, the case for disapplication on these “very unusual facts” was “a compelling one”. (Frank Otuo v The Watchtower and Tract Society of Britain [2017] EWCA Civ 136 (9 March 2017) — to read the judgment in full, click here).