Court sounds warning to claimants: no guarantee of success for applications to substitute party after limitation expiry

The High Court last week issued a powerful reminder of the importance of limitation periods, and more generally of the court’s reluctance to extend limitation or to exercise its discretion in favour of claimants who sue the wrong party despite there being no confusion as to identity.

News Corp UK & Ireland Ltd had libel proceedings issued and served against it by several individuals complaining of an article published in The Sun. The publisher of The Sun is News Group Newspapers Ltd – not News Corp UK & Ireland, which is a holding company in the News UK structure.

The claimants failed to give notice of the claim to The Sun in line with the pre action protocol for defamation. The claim form was issued against the wrong defendant just two days before the expiry of the 12 month limitation period. The claimants delayed a further three months in serving the claim, eventually serving the proceedings just 4 weeks before the deadline for service. By the time the claimants had applied to substitute the correct defendant party (NGN) under CPR 19.5, the limitation period had expired.

In exercising his discretion in favour of the Defendant, Master Gidden refused to allow the claimants to substitute the correct publisher, and struck out the Claimants’ claim against News Corp UK & Ireland bringing the matter to an end for The Sun. In his judgment, Master Gidden placed considerable reliance on the claimants’ failure to comply with the pre action protocol, their delay in both issuing and serving the claim, and the lack of evidence supplied showing that the Claimants would suffer prejudice despite the acknowledged “generous ambit” normally given to parties where identity is not in issue and a simple mistake was made in wrongly identifying, in this case, the publisher of the newspaper.

The decision sounds a strong warning to all claimants, and a reminder of the importance of engaging in the pre action protocols. Leaving issue of claims until the last minute has always been regarded as ill-advised and hazardous and is even more so now. Courts have consistently shown their reluctance to make orders which would de facto shift the expiry of a limitation date and this recent decision shows they are willing to exercise discretion against claimants, even where it results in a strike out of the entire claim.

Louis Charalambous and Erica Henshilwood represented News Corp UK & Ireland in this case.