WHAT A DIFFERENCE A DAY MAKES: ACTION BROUGHT IN TIME: COURT’S EARLIER REFUSAL TO EXTEND DISCRETION TO EXTEND TIME OVERTURNED

The judgment of the Court of Appeal in Otuo -v- Watchtower Bible and Tract Society of Britain [2017] EWCA Civ 136 shows the importance of calculating time periods for limitation. It shows what a difference a day makes

KEY POINTS

• The day on which the cause of action arose is excluded from computation when calculating the limitation period.
• Defamation proceedings had been issued in time.
• The Court of Appeal set aside a refusal to extend time on the basis that the judge below did not know that the proceedings had been issued within the relevant time.

THE CASE: THE CLAIM BROUGHT ONE DAY LATE

The claimant brings an action for libel. The limitation period is one year.  The defendant applied to strike out the claim on the basis that it had not been issued within the year.  The Master held that the limitation period expired on the 18th July 2013. Proceedings were issued on the 19th July.  There were a number of subsequent hearings and appeals. The court refused the application to disapply the limitation period.

THE LAW

In fact proceedings were issued within time.

1. 1. On 21 April 2015, the appellant made a second application for permission to appeal Master Leslie’s decision of the 30 October 2014. This application, made out of time, was based on the appellant’s recent discovery of the decision of Eady J (as he then was) in Gentoo Group Ltd and anor. v Hanratty [2008] EWHC 627 (QB). This decision, which had not been cited to Master Leslie, said at paragraph 7 (citing Pritam Kaur v. S Russell & Sons Ltd [1973] 1 QB 336) that the day on which a cause of action accrues is excluded from computation in arriving at the limitation period. ^[1] On this analysis, the Master’s decision was erroneous in law. The limitation period in the appellant’s case had expired on the 19 July 2013, rather than on 18 July 2013 as Master Leslie had found; which meant on the face of it, that the Master had been wrong to hold that the primary limitation period had expired in this case.

However, again, the courts declined to hear the argument, given the earlier findings.  The claimant appealed to the Court of Appeal.

THE COURT OF APPEAL DECISION

For various technical reasons the claimant could not appeal the subsequent orders in relation to the date of issue. However the Court of Appeal  was able to re-open the decision not to grant an extension of time.  The Court decided that the fact that the proceedings were, in fact, issued within time was a compelling reason to exercise the discretion. The claim was allowed to proceed.

1. 1. I start with the renewed application for permission to appeal. CPR 52.17(7) provides there is no right of appeal or review from the decision of the judge on the application for permission (to reopen the appeal under that rule), which is final. Thus, there is no right of appeal from the Order made on 14 May 2015 by HH Judge Moloney QC refusing the appellant permission to reopen the appeal heard by Sir David Eady, against the Order made by Master Leslie. I would add however that, like Lord Justice Moore Bick, I consider there was no arguable error in HH Judge Moloney QC’s reasons for refusing permission. As he made clear, unfortunate though the position was from the appellant’s perspective, he had not surmounted the high threshold which is set, before an appeal can be reopened. In this context, the judge cited these words from para 20 of the judgment of Longmore LJ (with whom McCombe LJ and Sir Stanley Burnton agreed) in R (Nicholas) v Upper Tribunal and anor:

One cannot get away from the fact that this application is based on lawyers’ mistakes and that the Taylor v Lawrence jurisdiction (only invented by this court in 2002 to cater for glaring injustice) is not intended to cater for such mistakes, however reasonable and understandable they may be. Law is a complicated business and mistakes will inevitably be made. Usually they will not matter because mistakes by lawyers can often be corrected or minimised by judges and mistakes by judges will be corrected by this court and this court can be corrected by the Supreme Court; but once a decision becomes final, at whatever level, it must be accepted as final in the absence of exceptional circumstances. Mistakes are, regrettably, not exceptional at all.”

1. 1. The Taylor v Lawrence route to reopen the substantive issue of limitation by way of appeal is therefore firmly closed to the appellant. This does not mean that the appellant’s claim is extinguished, but it prohibits his right to pursue it, subject only to the issue of the discretionary disapplication of the time bar pursuant to section 32A of Limitation Act 1980. This of course, is the issue we are concerned with in the appeal.

   2. As I have indicated, there was no argument before HH Judge Parkes QC that the Master’s conclusions on the limitation issue were wrong, since the premise of the hearing before him, was that the Master was correct, and the claim had been brought one day outside the limitation period. But HH Judge Moloney QC took the opposite view, and I consider he was right to do so.

   3. In this connection, it is sufficient to refer briefly to the decision of the Court of Appeal in Pritam Kaur. Pritam Kaur concerned a claim for damages for negligence and breach of statutory duty under the Fatal Accidents Acts 1846 to 1959 and the Law Reform (Miscellaneous Provisions Act 1934) by the widow and administratrix of a foundry worker who had been killed at work, against her late husband’s employers. Section 2(1) of the Limitation Act 1939 as amended provided (in similar wording to that of section 4A of the Limitation Act) that the action “shall not be brought after the expiration of three years from the date on which the cause of action accrued.” Lord Denning MR, with whom Karminski LJ agreed said at p.348:

“The Act of 1846, as amended by the Act of 1854, says it shall be commenced within three years after the death. Nothing turns on the difference in wording. The period is the same in either case. The first thing to notice is that, in computing the three years, you do not count the first day, September 5 1967, on which the accident occurred. It was so held by Havers J in Marren v Dawson Bentley… The defendants here, by their cross-notice, challenge that decision, but I think it was plainly right.”

1. 1. See further, the observations of Megarry J, at p. 350, where he agreed with the judge below that the day of the accident should be excluded from the computation.

   2. Excluding issues that might arise in connection with section 1 of the Defamation Act 2013, which are immaterial in this case, in my view, following Pritam Kaur, the day on which a cause of action for libel and slander accrues is excluded from the computation in arriving at the limitation period. The position is therefore accurately stated by Eady J as he then was in Gentoo v Hanratty.

   3. Two things flow from this. First, the claim in this case was brought in time. Secondly, the application before HH Judge Parkes QC proceeded on a false basis, namely, that the proceedings were issued out of time when they were not. Albeit the point was not argued below, the appellant submitted before us that this raises a pure matter of law, which he should be permitted to rely on in the appeal (for which he required permission to amend his grounds of appeal) see Glatt and ors v Sinclair [2013] EWCA Civ 241.

   4. Mr Simon Achonu for the respondent did not seek to argue before us that HH Judge Moloney QC’s conclusions on limitation were wrong; indeed, the argument before us proceeded on the basis that his interpretation of the law was correct. He submitted however that this is irrelevant to this appeal, which should proceed as it did below, on the basis that the appellant had brought his claim marginally out of time, with the result that there is no conceivable ground to attack the judge’s exercise of his discretion.

   5. I am unable to accept Mr Achonu’s submissions. This court now knows, as HH Judge Parkes QC did not, that the appellant’s claim for slander was brought (marginally) within the time limit specified by section 4A of the Limitation Act 1980, rather than (marginally) outside it; and in my judgment, it would be quite wrong for us to exclude these matters from our consideration. It is apparent that the issue of timeliness was highly material to the exercise of the judge’s discretion (as can be seen from the reasons he gave for refusing to disapply the time bar, outlined at paras 15 and 16 above). Whilst no criticism can be made of the way the judge dealt with the matter at the time, the short point is that, the case before him plainly proceeded on a false basis, which in my opinion flawed the exercise of his discretion; and led him to make a decision that was wrong.

   6. The discretion afforded by section 32A is largely unfettered: see Steedman v BBC [2001] EWCA Civ 1534, [2002] EMLR 17 where Sir David Steel (with whom Brooke LJ agreed) said at para 15 that the section:

“… 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.”

1. A number of factors which potentially told against the exercise of discretion in the appellant’s favour were correctly identified by the court below; but in circumstances where the judge’s decision was based on the (incorrect) premise that the appellant had commenced his proceedings outside the applicable limitation period, rather than within it, the case for disapplication on these very unusual facts was in my judgment a compelling one.