Limitation of Actions Consultation - Law Commission

eduction in recent years to the limitation period for defamation actions. 56
The
concern was that the original period of six years was “unjust and oppressive to
defendants who have the anxiety, expense and inconvenience of a possible
defamation action hanging over them for many years after the publication of the
matter complained of.” 57
In addition, the nature of the claim was felt to justify a
reduction in the limitation period, as “a plaintiff is or should be concerned to
vindicate as speedily as possible the reputation which he claims has been damaged
by defamatory material and to obtain compensation for any injury he has
sustained.” 58
Similar considerations moved the Neill Committee to recommend the
further reduction to one year. 59
13.39 The question must be whether an action for defamation is sufficiently distinct
from other actions to justify special treatment, if a general limitation period of
three years from the date of discoverability were to be introduced. Some factors
may be thought peculiar to defamation actions. If the defendant wishes to defend
the action on a plea of justification, the burden of proof that the publication in
question is justified rests on the defendant - the plaintiff does not have to prove
that the defamatory statement is false. The defendant may therefore suffer greater
prejudice through evidentiary difficulties than the plaintiff if the plaintiff is able to
issue proceedings just before the end of a long limitation period. However, there
are also reasons why a short limitation period would be unjust to plaintiffs. As the
Neill Committee recognised, the fact that legal aid is not available for defamation
actions can prevent a plaintiff bringing proceedings against the defendant until the
plaintiff has managed to save the necessary money. A plaintiff may also be unable
to start proceedings until disciplinary proceedings against him or her in relation to
the matters which are the subject of the defamatory publication have been
resolved. 60
13.40 No law reform body in the other common law jurisdictions which have recently
reported on limitations has recommended that such actions should receive special
treatment. 61
The reasons given in the Faulks Report and the Neill Report for
56 The Administration of Justice Act 1985 reduced the period from six years to three years,
implementing one of the recommendations of the Report of the Committee on Defamation
(1975), Cmnd 5909 (“The Faulks Report”). See para 1.15 above.
57 The Faulks Report, para 536.
58 The Faulks Report, para 536.
59 “We have canvassed opinion and found a wide measure of agreement (not surprisingly)
among media representatives that the same reasoning would justify an even shorter period.
Memories fade. Journalists and their sources scatter and become, not infrequently,
untraceable. Notes and other records are retained only for short periods, not least because
of limitations on storage”: Supreme Court Procedure Committee, Report on Practice and
Procedure in Defamation, July 1991, p 81, para VIII 2.
60 These financial difficulties and the possible impact of disciplinary proceedings were cited as
the main reasons for opposing the reduction of the limitation period when the Defamation
Bill was debated in Parliament. See, for example, Hansard (HL) 16 April 1996, vol 571, col
639 - 640.
61 Though the Law Reform Committee of Western Australia did not feel it appropriate to
abolish the rule applying in that jurisdiction that the limitation periods for actions against
newspapers should be limited to one year because of the scope of its terms of reference, it
did note that one year was too short a period. See Report on Limitation and Notice of Actions,
336