Delay no bar to libel

It is generally considered that, once the one-year limitation period has expired, a claim in defamation cannot be brought and those at risk of a lawsuit are now safe.

However, in the recent case Powell v Boladz [2003] EWHC 2160, an inordinate delay in pursuing a libel action was held to be excusable and the case was allowed to proceed to trial. This case is, however, going to be appealed.

In 1990, the claimants’ son died.

Shortly after his death, they instigated various complaints and cases regarding his treatment against GPs at the practice he had attended. In 1992, they appeared on a television programme.

Following its transmission, the defendants displayed a notice in their surgery stating that the allegations made in the programme were “lies and complete distortion of the actual facts” and that “some of the allegations belong in the realms of fantasy”.

A libel action was commenced by the claimants in 1995 against the GPs. The action proceeded slowly, partly due to attempts to compromise the claim and partly to await the outcomes of the other cases and complaints instigated.

In 2003, one of the defendant GPs applied to have the claim struck out. He argued that the proceedings were not brought to vindicate the claimants’ reputations, but to preserve a potential forum for the original complaints against the defendants.

Further, he argued that there had been unwarranted delay in prosecuting the claim, which rendered a fair trial impossible, and that allowing the case to proceed would breach the defendants’ rights under Article 6 of the European Convention on Human Rights to a trial within a reasonable time.

This application was summarily dismissed. The court held that the only proper purpose of a libel action was to vindicate reputation, which indicated that a genuine claim would be pursued expeditiously. In the instant case, however, it could not be said that the claimants were seeking a collateral advantage unrelated to the action. They truly wished to defend their reputation.

While there had been inordinate delay in the prosecution of the case, this was held to be excusable in the circumstances and did not, of itself, render a fair trial impossible. The court balanced the defendants’ right to be tried within a reasonable time against the claimants’ right to access to justice. Given that a fair trial was still possible, the injustice which would be caused to the claimants in denying them court access outweighed the injustice which would be caused to the defendants if the trial were to go ahead.

This new, flexible approach could be a concern to publishers, who may see a corresponding decrease in legal certainty.

Ruth Moss is a lawyer in the technology, media and communications department at Lovells

by Ruth Moss

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