Considerations in Defamation Claims - Essay Example

?Case Brady v. Norman1 Identity of the Parties The claimant and appellant in this case is Shaun Brady, and the defendant and respondent is Keith Norman. Mr. Adrian Davies, instructed by Petersfield Llp, represents the appellant and Mr. Jonathan Crystal, instructed by Thompsons Solicitors, represents the respondent. Material facts that gave rise to the dispute: The case arose from internal disputes within the Associated Society of Locomotive Engineers and Firemen (hereafter, ASLEF), where the claimant Mr. Brady was elected as General Secretary of the Associated Society of Locomotive Engineers and Firemen in 2003. His stint was cut short, however, when he got into a scuffle with the President of ASLEF, Mr. Samways on 20th May 2004 at a barbecue. After five days, he was suspended. In July of that same year, he was accused of forgery for signing a cheque in the name of the Assistant General Secretary, with the latter’s consent and knowledge. In August 2004, he was dismissed as General Secretary using the forgery and the barbecue scuffle as grounds. A claim for unfair dismissal was brought against the ASLEF by Mr. Brady, and the Employment Tribunal ruled in his favour. Upon appeal before the Employment Appeal Tribunal, the appeal was likewise dismissed. However, on June 5, 2006, the respondent Mr. Norman, who was the General Secretary voted to replace Mr. Brady, uttered these words before the ASLEF”S Annual Assembly of Delegates on 5th June 2006. The following words were made the basis of the defamation charge brought by Mr. Brady against Mr. Norman: “… the facts are, Conference, that the General Secretary was involved in a fight; the General Secretary was forging cheques and it is a matter of opinion – you can draw whatever opinion you like – as to whether his actions in the media brought the Union into disrepute. What you cannot possibly walk away from is that he was involved in a fight with the then President, and he forged cheques. You cannot get away from that. That is the situation. Unfortunately, because the Union did not get it right, he won his tribunal on the basis of unfair dismissal, on the basis that he was dismissed, believedly by the tribunal, for reasons other than that put forward by the employer.”2 There was an earlier libel action which prospered, that was based on a July 2006 report in the ASLEF magazine. Mr. Brady was awarded indemnity because the following words were deemed libellous: “ASLEF conference delegates declined to debate a proposition calling for former General Secretary Mr Brady to address Conference, coupled to efforts to consider his reinstatement. They felt it was pointless to discuss “a past era”. One compelling reason was that the Certification Officer had ruled the previous week that Mr Brady had legitimately been excluded from ASLEF membership for bringing the Union into disrepute. …”3 However, the words spoken during the Assembly (the first quoted paragraph) did not come to the knowledge of Mr. Brady until September 2008. In 2009, or when the first libel action was concluded, Mr. Brady brought suit for defamation. Under the Defamation Act 2006, the statute of limitations to bring suit runs for only one year, and this likewise appears in section 4A of the Limitation Act 1980 as amended. Mr. Brady filed a Part 8 claim seeking disapplication of the one-year limit. Section 32A of the 1980 Act “enables the court to disapply section 4A if it appears to the court that it would be equitable to allow the action to proceed having regard to the degree to which the time limit prejudices the claimant and to the degree to which disapplying the time limit would prejudice the defendant.4” The Master ruled against disapplying the time limit and consequently moved to dismiss the claim, ruling that doing so would be prejudicial to the defendant. The case is then brought up on Appeal. Point of Law: The crux of the issue on appeal is whether or not there is merit in waiving the time limit in the case under Section 32A, considering that the jurisprudence used by the Court, which was Cain v. Francis5, was inconsistent with the ruling in Steidman v. BBC6, and the Court of First Instance therefore erred in finding that the prejudicial effect of a loss of limitation defence on the defendant should be taken into consideration in exercising discretion under s32A. To quote the case itself: The ground of appeal is that Steedman v BBC and Cain v Francis cannot be reconciled, being concerned with two very similar and sequential sections of the 1980 Act; that Cain v Francis should be preferred; and that the judge was wrong to hold that the Master was entitled to proceed on the basis that the loss of a limitation defence can itself constitute prejudice to a defendant. Mr Davies submits that Mr Brady’s explanation for the delay in bringing the proceedings should be accepted as reasonable. He submits that the only defence ever contended for was qualified privilege and that this was bound to fail because there were people at the meeting whose presence would not sustain privilege. The ability of the defendant to defend himself had not been compromised. He submits that this was a very serious slander and that there has been no evidential prejudice.7 Finding: The Appeal was dismissed. The Court held that it was possible to reconcile the ruling in Cain with the ruling in Steedman. In Cain, the ruling relied upon by the current claimant/appellant Mr. Brady is the finding made by this Court that the first instance judge considered that the loss of limitation defence would be prejudicial to the defendants and that therefore, there was meritorious ground for allowing the disapplication of the time period. On the other hand, in Steedman, the Court held that the discretion of the Court to disapply the time period was a largely unfettered discretion and should be applied by looking at the circumstances at hand. According to the Court, quoting Lord Diplock in Thompson v. Brown8, “because prejudice resulting from the loss of a limitation defence will almost always be balanced by prejudice to the claimant from the operation of the limitation provisions, the loss of the defence as such would be of little importance. What was of paramount importance was the effect of the delay on the defendant’s ability to defend.” Steedman was used as a basis of the Court in this present Court to dismiss the defendant’s appeal, on the ground that upon an appraisal of the circumstances, the explanation for the delay was not very persuasive. Quoting the Court, “It is not a case in which the prejudice to the defendant from the loss of the limitation defence is so fortuitous that it is balanced out of existence by prejudice to the claimant in losing a claim which the defendant ought in justice and fairness to meet.”9 The Court held that it was possible to reconcile the two cases because Cain was a personal injury case involving a road traffic accident where the delay was only one day and the defendant was given enough opportunity to investigate the facts and has in fact admitted liability. In that case, there was extreme prejudice to the claimant if the limitation rule was not disapplied. However, the Court held that considerations in defamation claims are different and there is a reason or policy behind the shorter time period. In the words of the Court, “The defamatory impact of libel or slander is likely to be transient and Parliament evidently intended that a claimant should assert and pursue his need for vindication speedily.10”These were considerations that were taken into account by the Supreme Court Procedure Committee when it revised the rules and shortened the time period for defamation cases. In sum there is no contradiction between Cain and Steedman, as they “represent differing manifestations of the application of the same principles to be derived from the different circumstances to which adjacent sections of the 1980 Act are applicable.11” I agree with the decision taken by the Court. Indeed, there is a policy behind a shorter time period. Because the grounds for the charge are to be found in spoken words and are therefore ephemeral, the evidentiary requirements to prove the existence of defamation require that the case be filed at the soonest possible time. Moreover, it is to be expected that a party besmirched by a defamatory statement demand redress immediately. Given that Mr. Brady had taken an interminable time, or two years, within which to bring suit, and given further that his excuse on not having enough funds to pay his solicitors is unconvincing, I therefore concur with the decision that this Court has taken. Word count: 1499 References Brady v. Norman. [2011] EWCA Civ 107 Cain v. Francis. [2008] EWCA Civ 1451; [2009] QB 754 Steedman v. BBC. [2001] EWCA Civ 1534, [2002] EMLR 318 Thompson v. Brown. [1981] 1 WLR 744 Defamation Act 2006 Limitation Act 1980 Read More