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Lord Williams of Mostyn moved Amendment No. 3:


Leave out Clause 4.

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The noble Lord said: My Lords, this amendment reflects the same approach as underlay my previous amendment. At present Clause 4(3) indicates in respect of offer to make amends:


    "There is no such defence if the person by whom the offer was made knew or had reason to believe that the statement complained of--


    (a) referred to the aggrieved party or was likely to be understood as referring to him, and


    (b) was both false and defamatory of that party".
The simple proposition I put forward is that if the defendant's defamer repents, discovers different information and comes to a different conclusion, why should the offer of amends not be available to him? It would be of benefit to him, to the plaintiff in many cases and certainly to the benefit of the system generally. I beg to move.

Lord Lester of Herne Hill: My Lords, once again I respectfully agree with the noble Lord, Lord Williams of Mostyn. One should bear in mind that the burden of proof is cast upon a defendant. No one wants to encourage newspapers to be irresponsible. The law is strong in preventing that. However, it seems to me that this is again an unnecessary limitation upon the new procedure. For the reasons given I support what has been said.

The Lord Chancellor: My Lords, it must be my fault that two such experienced practitioners press upon me such an obviously simple and highly desirable change. However, that is not the way that I see the effect of this amendment. As I understand, its effect would be to undermine the whole purpose of the offer to make amends which has been widely welcomed and is designed to encourage defendants who realise they have erred to take immediate steps to right admitted wrongs. Everyone will benefit if there is an incentive for the defendant to make an offer and for the plaintiff to accept an offer for amends which will provide a satisfying conclusion making conventional proceedings unnecessary.

But in making an offer the defendant must commit himself to making appropriate amends, which may include money compensation assessed by a judge. The incentive to commit himself in this way is provided by the knowledge that he will have an absolute defence if the offer is not accepted (unless it is shown that he knew or had reason to believe that he was defaming the plaintiff). The effect of taking that defence away--which is the effect of leaving out Clause 4--would be that once the defendant has made an offer, the plaintiff must win and has nothing to lose by disregarding the offer and insisting on a trial. The amendment removes a carefully prepared balance. If the plaintiff has nothing to lose by disregarding a genuine offer, I find it difficult to see how the defendant has anything to gain by making it. The machinery provided in Clauses 2 and 3 would have very limited usefulness and would not, without Clause 4, have the desired effect of encouraging sensible settlement. Therefore it seems to me that Clause 4 is an essential part of the mechanisms of Clauses 2 and 3.

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However, that does not seem to be the basis on which this amendment has been proposed. That gives me cause for concern, but at the moment that is my position.

Lord Williams of Mostyn: My Lords, I am sure that the amendment could have been more felicitously phrased but I think that the purpose behind it is quite plain. Both I and my noble friend Lord Lester of Herne Hill have tried to explain it. The noble and learned Lord the Lord Chancellor said that the purpose of the new and improved procedure is to right admitted wrongs. We entirely agree. The noble and learned Lord also said that its purpose is to bring about sensible settlements. We entirely agree with that. It is not the whole clause that one is focusing on--although the amendment is crudely put--it is Clause 4(3). I say with great respect that we are simply suggesting that, if one wants to right admitted wrongs and produce sensible settlements, one should shut the door on no one who wishes to avail himself or herself of that opportunity. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Limitation of actions: England and Wales]:

Lord Williams of Mostyn moved Amendment No. 4:


Leave out Clause 5.

The noble Lord said: My Lords, this is now our old friend; namely, the matter of limitation being reduced from three years to one year. I put forward my stance on the previous occasion we discussed this matter. I am not sure that I can advance my case by putting it further at any great length except to say the following few words. First, plaintiffs have no legal aid in libel cases. Defendants are often wealthy and powerful. To limit a defendant to 12 months to take action is therefore capable of being unjust. Secondly, I see no distinction in principle between a limitation for personal injury of three years and a limitation of one year for libel.

Thirdly, there is a category of persons--doctors, prison officers and police officers, to take a few examples at random--who are often subject to internal disciplinary complaints procedures which are frequently not concluded before the one year is up. It is always open to a judge, and judges frequently direct juries, that if a plaintiff has delayed in bringing his action that may have some effect, first, in damages, and, secondly, as to whether or not they believe the plaintiff in his complaint that he has been wounded, or even that his complaint is genuine. Most plaintiffs--as I believe was said on the last occasion--bring their actions fairly quickly, but many are not able to do so either because they lack financial resources or because other extraneous matters such as disciplinary procedures or criminal cases disable them from bringing their cases within the one-year period. I beg to move.

8 p.m.

Lord Lester of Herne Hill: My Lords, I shall not take up your Lordships' time by repeating what I said last time. On this occasion I respectfully disagree with the noble Lord, Lord Williams of Mostyn.

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Perhaps I may clarify one point. The noble Lord referred to disciplinary procedures taking a long time. It is a long time since I looked at the Limitation Act 1980. In replying, can the noble and learned Lord the Lord Chancellor explain whether in such a situation the court would have a discretion to extend time in relation to the limitation period? Although the cause of action will accrue, is there not a discretion to extend time in circumstances where real hardship could be shown? I have the impression that that was the position. In any event, I support the stance taken in the Bill and would not wish to change it in any way.

The Lord Chancellor: My Lords, I have always found some difficulty about limitation generally. There is always a question about precisely what purpose it serves and what the principle should be on which it should proceed. A good deal of concern has gone into that subject matter over the years. The more I have seen of detailed provisions of limitation, the more complicated they look.

The amendment would amount to the rejection of one of the major recommendations by Lord Justice Neill's working group--namely, that the limitation period both for actions in defamation, and actions for malicious falsehood, should be reduced to one year, but that there should be a discretion to extend the period. Therefore there is in the Bill, in this situation, a completely open discretion to extend the period.

I have considered quite carefully, in particular in relation to some of the examples that the noble Lord, Lord Williams of Mostyn, gave last time, whether the discretion should be in some way elaborated so as to indicate what might be done in particular situations. However, I have concluded that that would be unwise. On the whole, judicial discretion in this area without any circumscription would be the right answer. I am comforted in the view that that is correct when I consider the attempts made to limit judicial discretion in other types of limitation. They produce tremendous complexity and metaphysical distinctions of comparative fineness.

The recommendation of Lord Justice Neill's working group was made after careful consideration of the reality and all the issues arising in considering the time limits which should apply to defamation proceedings. Your Lordships will remember that the personnel of the working group were extremely experienced in this area of the law. The group pointed out that only in the most exceptional circumstances could a plaintiff be justified in delaying for more than a year before starting proceedings. It is almost always in his own interest to do so as soon as he knows that he has been defamed. If he acts at once, his action can minimise or even prevent any substantial damage, which is why he has a cause of action, and presumably why he chooses to take proceedings.

This is very different from a personal injuries claim, where it may not immediately be apparent to an injured person that his injury is attributable to some other person's fault, and his action, however prompt, cannot halt, minimise or prevent the injury: indeed it may be

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impossible to assess the inexorable long term effect of the injury. It is right, therefore, to require particularly swift action as the norm in defamation cases.

The group gave examples of circumstances (other than the plaintiff's lack of requisite knowledge during the running of the limitation period) which would justify extension. The present law allows extension only in the narrow case of when the plaintiff in defamation (not malicious falsehood) did not acquire the relevant knowledge until after the period had expired. Thus this clause is in two ways more generous to plaintiffs than the old ones, since the strict limitation rule may be relaxed, for instance, in favour of a plaintiff who only acquired the requisite knowledge at the eleventh hour, or a plaintiff who had some other good reason for not starting proceedings within the period prescribed.

In my submission, the balance of a very ample judicial discretion is the answer in relation to those cases where there is a special reason for not taking action within the year. I therefore think that it is right that your Lordships should give effect to the recommendations of the Neill Committee having regard to the reasons which it has given and which I have sought both to summarise and to elaborate.


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