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Lord Williams of Mostyn moved Amendment No. 30:

Page 5, line 41, at end insert ("and
(d) the conduct of the defendant after the cause of action arose including the extent (if any) to which the defendant responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant.").

The noble Lord said: It may be for the convenience of the Committee if I speak to Amendment No. 30 which stands in my name and also indicate the basis of my opposition to the Question that Clause 5 stand part of the Bill because I have indicated my general approach to the Committee earlier.

My fundamental objection to Clause 5 is that it is wrong to take away a plaintiff's right, subject to exceptions, to the three-year period in respect of limitation. Amendment No. 30 includes a further relevant protection for a plaintiff who, if Clause 5 becomes Section 5 of the Act, may need further protection.

Perhaps I may make one or two general observations. If I stand on the pavement outside this House and am run over by the Evening Standard delivery van, I do not understand why I should have three years in which to claim in respect of my broken leg; but if another newspaper defames me, perhaps wounds my life more fundamentally than the break of my leg would represent or imply, I have only the one year. I know it will be said that there are exclusions. I do not see why there should be any reason in principle that a plaintiff should be limited to one year.

There is no legal aid for plaintiffs. Many plaintiffs are private individuals. Very often a plaintiff will want to take action--for instance, if he is a doctor or a member of a profession which is subject to an internal complaints machinery. Very often a plaintiff will have to save quite strenuously to afford the costs. If no legal aid is available, there is normally an inequality of arms between defendants, who tend to be well off, and plaintiffs, who, if they are not a member of a union or a professional organisation, are not well off.

Despite the explanations given on an earlier occasion, it seems to me that there is no proper reason to limit the limitation period to 12 months in respect of false material published which is defamatory as opposed to the personal injury example that I gave earlier.

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I recognise, of course, that there are exceptions. But the court will tend to be rigid if the experience of the Limitation Act in personal injury cases is any guide. For the convenience of the Committee, I have sought to address the matter generally. I beg to move.

8.30 p.m.

Lord Lester of Herne Hill: On this occasion I have the misfortune not to agree with the noble Lord, Lord Williams of Mostyn. It seems to me that there is a major difference between a personal injury case involving an accident and the subsequent trial and a claim for defamation. The two main differences are these. Defamation cases are tried by a jury. The same factors which apply in criminal trials--the need for the trial to be brought on quickly while memories are fresh and the defendant given an opportunity to vindicate himself speedily--apply in defamation proceedings. The other factor is that the burden of proof is upon the defendant in a libel case. That is often a heavy burden and if the defendant has to shoulder it, it is right that he knows there is a fairly short time limit within which he will have to prove his case.

I therefore regard the Bill as sensible in giving one year as the limitation period. I do not think that there is a justification for a longer limitation period. But it enables the plaintiff to gather funds to be able to pursue his course of action.

The Lord Chancellor: I am grateful for the anticipatory support from the noble Lord, Lord Lester of Herne Hill, for what I shall say.

Clause 5 implements one of the major recommendations made by Lord Justice Neill's working group; and I need not remind the Committee of the depth of experience which resided in that group.

I think that I discern a difference between the situation in which, unfortunately, the noble Lord had his leg broken by a newspaper van and in which he was defamed either by that newspaper or another. The injury by defamation is an injury done at the time, and the sooner it is corrected the better for everyone. In so far as the injury to the broken leg heals, that is well and good. But the substitution of damages, which is the remedy, depends a good deal on how the injury turns out. One might hope that the injury would heal quickly and that so good and so straight would be the result that one would hardly notice the difference as the noble Lord walked on in his brilliant career. In that case the damages would be somewhat reduced. Therefore, a three-year period of limitation for personal injuries seems reasonable in regard to these circumstances.

However, as the Neill group said, in its experience it would be in only the most exceptional cases that a plaintiff could be justified in delaying for more than a year before starting defamation proceedings. That is the result of a great deal of experience. I think that all of us agree that the sooner these actions are taken the better for reasons of freshness of evidence and the like.

Looking at the law of limitation generally, I cannot anticipate what the Law Commissioners may say, for example, on the law of limitation on personal injuries.

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As regards Amendment No. 30, we put the measure into the Bill as published for consultation. Following consultation, and in response to many comments on the clause, it was modified so that fewer examples of "all the circumstances of the case" to which the court might need to have regard were provided. The basic and essential provision is that the court shall have regard to all the circumstances, which was not the case under the previous legislation. Although the reason for and length of delay will always be relevant, and lack of knowledge will often be, it is clearly not possible to identify all the kinds of circumstances which could conceivably in any case be relevant for consideration.

Moreover, it was pointed out in consultation that the inclusion of a specific example could raise two expectations which it should not do. One possible expectation was that a plaintiff who could show that his case fell within that example must succeed. That is clearly not right if it is just an example of a matter which could affect the exercise of the discretion. The reason that we took that out in the final form of the Bill as laid before the Committee was in order to avoid those difficulties.

My answer on the main point is that there is an essential difference between the cause of action in defamation and the cause of action in personal injuries. The accumulated experience of the Neill Committee was in favour of, and recommended as a central recommendation, the limitation to 12 months. The discretion should be a completely open one and particular examples are on the whole unwise.

Lord Williams of Mostyn: I cannot detect a true difference in principle in the examples referred to by the noble and learned Lord. I am not employed as a manual worker. Therefore, if my leg heals up after six weeks I have no loss of wages or anything of that kind. If I am employed in a profession where reputation is important I may have special damage. The consequences of the dissemination of the defamatory material may be very wide and difficult to establish. I detect no difference in principle. I could understand a principled approach which said that the limitation period for the personal injury was to be the same as for defamation. But I fail to see any distinction in principle between 12 months for one and three years for the other. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 agreed to.

Lord Lester of Herne Hill moved Amendment No. 31:

After Clause 6, insert the following new clause--

Unjustified proceedings for, or actions in relation to, alleged defamation

"(.--(1) If a person (whether or not the person allegedly defamed) without reasonable cause issues a writ for defamation or by letter, advertisement or otherwise without reasonable cause threatens to issue such a writ, or otherwise without reasonable cause attempts to hinder the publication or further publication of allegedly defamatory material, the person aggrieved (whether or not the person to whom or

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against whom the threats or attempts were made) may bring proceedings against the person issuing the writ or making the threat or attempt, claiming any relief mentioned in subsection (4) below.
(2) In any such proceedings the onus of proving reasonable cause shall be on the defendant or defender but he may discharge it as follows--
(a) if he has issued a relevant writ, by undertaking to the court to pursue the consequent proceedings with due expedition,,
(b) if a relevant writ has not been issued, by undertaking to the court that such a writ will be issued forthwith and that consequent proceedings will be pursued with due expedition.
(3) Breach of any such undertaking mentioned in subsection (2) above shall, in addition to being a contempt of court, revive the plaintiff's or pursuer's right to claim the reliefs in subsection (4) below.
(4) The reliefs are as follows--
(a) dismissal of the writ,
(b) a declaration that the threats are unjustifiable,
(c) an injunction or interdict against the renewal of the writ or the continuance or resumption of the threats or attempts,
(d) damages, including (where appropriate) aggravated or exemplary damages.").

The noble Lord said: The amendment stands in the name of the noble and learned Lord, Lord Simon of Glaisdale, but I have given notice that I wish to move it on his and my own behalf. The noble and learned Lord asked me to apologise that it is impossible for him to be present this evening.

The amendment follows from a point raised by the noble and learned Lord during the Second Reading debate; namely, the notorious practice by some rich and powerful individuals in the commercial world and elsewhere to issue groundless or so-called gagging writs to suppress damaging information about themselves or their malpractices from the public. One of the most notorious examples was the practice of the late Robert Maxwell. He was able to take advantage of the fact that under the law of libel, as under no other branch of the law of tort, the burden is on the defendant to discharge the effective burden of disproving that the words published or to be published are false. That problem would be solved if the burden of proof were shifted. That is the subject of one of my later amendments. On the assumption that the burden remains upon the defendant, I submit that it is fair and reasonable to provide the defendant with an effective remedy for the unwarranted and groundless use of gagging libel writs.

The amendment is based on Section 70 of the Patents Act 1977. Prior to 1883, the position was that the proprietor of a patent could issue threats of proceedings for infringement without rendering himself liable for any damage which he might occasion thereby, provided that those threats were made bona fide. The 1883 Patents Act gave a statutory right of action in certain limited cases to any person damaged by groundless threats of infringement proceedings, whether or not such threats were bona fide. That right of action is substantially reproduced in Section 70 of the 1977 Act. As I explained, the present amendment is based on that section.

If a person were to issue or threaten to issue proceedings for defamation without any cause for doing so, the person to whom those proceedings were issued or the threats were made would be entitled to bring an action

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against him. If the defendant could not prove that he had a perfectly good cause for bringing a defamation action, the plaintiff would be entitled to various remedies, including an injunction to prevent the threats or the writ continuing and, where appropriate, damages.

Groundless threats by public figures to bring defamation actions accompanied by coercive prior restraints represent an unacceptable encroachment on free speech. The amendment would go some way to restoring the balance between the protection of reputation and the freedom of the press to keep the public informed by providing an effective remedy where the issue of proceedings is truly groundless. I beg to move.

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