This article discusses time limit issues in defamation claims for libel (written) disputes. It outlines some practical considerations and potential remedies to help if the time limit is missed and briefly discusses the court’s approach when considering whether to grant time extensions.
If someone makes a written defamatory comment about you or your business, whether online or otherwise, there is a very limited time frame in which you can bring a claim of 1 year from the date of the initial publication. Section 4A of the Limitation Act 1980 sets this out. This is known as a “limitation period”.
Limitation can prevent a claim
This 1 year time limit for defamation claims catches many people out who do not take prompt legal advice. Regrettably, ignorance of the law is not a defence to it.
The difficulty is that once the limitation period has expired, it may not be possible to bring a claim, even if it has very good merits and even if it has caused serious harm and significant financial loss. The courts can treat the time limit very strictly.
When does time start to run
In defamation, the triggering event for a libel claim (e.g. involving written words) is usually when the untrue and damaging statement is published or communicated to a third party. This publication can be either online, or in a book or newspaper, or some other permanent written form. It can usually be straightforward to work out when the earliest publication was and easy to evidence.
Earliest statement may trigger the time limit
It used to be the case that each and every publication of a defamatory statement could be actioned individually, so that where there is a string of abuse, the last example might serve to extend the time limit.
However, the law has introduced what is known as the “single publication” rule in defamation which broadly says that where there are a stream of defamatory statements all similar in nature, then the earliest of these statements is the triggering point for the 1 year limitation period. This can also catch a lot of people out.
The date of publication may not count
Time often starts to run, not necessarily on the day the defamatory material is published, but sometimes the next day, so that something published on 1 January 2020, may be actionable until 2 January 2021, but not afterwards. If the statement is made at midnight, it may be the time starts to run a day earlier. Early legal advice is essential as delay may prove fatal and the time limit may not be entirely clear.
Filter for less serious cases
This very short timeframe may seem unfair, but it follows a certain logic, that if a person has been defamed and has suffered serious harm, they would probably want to take action as promptly as possible to minimise ongoing loss. An implied suggestion might be if a person doesn’t take legal action soon, then the damage may not necessarily be very serious. There are exceptions to this, such as late discovery of the damage, which may be material. Each case turns on its own facts.
Court can extend the time limit
Fortunately, defamation is one of the few areas of law where the court can potentially disapply the limitation period under the Limitation Act 1980.
S.32 Limitation Act 1980 application
Under section 32A of the Limitation Act 1980 it is possible for a claimant who has missed the time limit for libel claims to apply to the court for permission to bring a claim out of time if it appears to the court that it is just to do so. The threshold is quite high, but is sometimes possible.
When might a court extend the time limit?
The court will assess various issues, including, but not limited to: what is the reason for the delay by the claimant and was this reasonable, how long has the delay been, what is the prejudice caused to the Defendant if the claim is allowed to continue, and how serious is the harm to the claimant. Unnecessary delay can prove fatal.
Recent case law
Case law concerning applications to extend limitation in defamation is relatively sparse. The recent cases of Lokhova v Tymula EWHC 225 (QB) (2016) and the Court of Appeal decision of Reed Elsevier UK Limited v Bewry EWCA Civ 1411 (2014) show that the court can be reluctant to agree to extend limitation in defamation where there is delay or if the merits of the case are not held to be very strong.
Other factors which might assist
Defendant has to take issue with limitation, and plead to this expressly in their claim. If they don’t the court will not apply it automatically. If the Defendant is unaware of this, the claim may continue even if it is strictly out of time.
The time limit might also be reset if another party unwittingly republishes the original defamatory statement, and amends it sufficiently so that they also defame the claimant. It may be possible then still to sue this secondary third party publisher even if the time limit has expired for the original publisher.
It may then be possible to bring defamation claims which appear out of time in certain circumstances.