[2025] EWHC 2114 (KB)

Section 4A of the Limitation Act 1980 provides that limitation period in defamation claims is one year after the date on which the cause of action accrued, namely, the publication of the alleged defamatory statement.

Section 8(1) of the Defamation Act 2013 provides, in essence, that the publication of a statement is its first publication to the public if any subsequent publication is “substantially the same”. Section 8(3) of the 2013 Act provides that, for the purposes of section 4A of the Limitation Act 1980, any cause of action against a person for defamation in respect of a subsequent publication is “to be treated as having accrued on the date of the first publication”. This is known as the “single publication rule”.

Section 8(4) of the 2013 Act disapplies the single publication rule if the manner of a subsequent publication of an alleged defamatory statement is “materially different from the manner of the first publication”. Section 8(5) provides that a court, in determining whether a subsequent publication is “materially different from the manner of the first publication”, may have regard to the level of prominence the statement is given and the extent of the subsequent publication.

Section 8(6) of the 2013 Act makes clear that the single publication rule does not limit the court’s discretion under section 32A of the Limitation Act 1980, so the Claimant’s Limitation Application, which I deal with below, is not excluded by that rule. In its skeleton argument, the defendant has referred me to the Explanatory Notes to the 2013 Act at paragraph 63 and to paragraphs 7-007 – 7-008 of Gatley on Libel and Slander (13^th edition) in relation to the single publication rule and the question of whether a subsequent publication is “materially different”. I have had regard to those commentaries.

In brief, it is clear that the single publication rule means that any cause of action arising from the broadcast of the Documentary arose on 31 October 2012, such that the last date for issuing proceedings was 1 November 2013. In relation to Episode 1 of the Drama, any cause of action arose on 28 September 2020, such that the last date for issuing proceedings was 29 September 2021. In relation to Episode 2 of the Drama, any cause of action arose on 29 September 2020, such that the last date for issuing proceedings was 30 September 2021.

Finally, I note that the Documentary was shown again on ITV1 on 29 September 2020. In my judgment, it is not arguable that the re-broadcast of the Documentary on ITV1 on 29 September 2020 was “materially different from the manner of the first publication” in 2012, but even if it were, the last date for issuing defamation proceedings in relation to that re-broadcast was 30 September 2021.

I have no hesitation in concluding that the availability of the Drama on ITV Hub/ITVX does not amount to a subsequent publication that is “materially different from the manner of the first publication” nor does the subsequent availability of the Drama on Netflix or, for that matter, on Amazon Prime.

Accordingly, even if, contrary to my finding in relation to Ground 1 of the Summary Judgment Application, the claimant has an arguable cause of action in defamation against the defendant, any such cause of action is well outside the relevant limitation period for defamation. Accordingly, ignoring for the moment the Claimant’s Limitation Application, the Summary Judgment Application would also have succeeded on Ground 2.

Turning to the Claimant’s Limitation Application, I note that section 32A of the Limitation Act 1980 gives the court discretion to disapply the one-year limitation period on the application of the claimant if it appears to the court that it would be equitable to do so. Section 32A(2) sets out the circumstances to which the court should have regard in making its determination as to whether it would be equitable to allow an action to proceed, including, the length of and reasons for the delay on the part of the claimant and other factors.

The first point to note about the Claimant’s Limitation Application is that it was made more than three years after the expiry of the limitation periods for a defamation claim arising out of the two episodes of the Drama and more than 11 years after the limitation period for a defamation claim arising out of the Documentary. The Claimant’s Limitation Application was also only made 16 months after the claim form was issued and only after repeated prompting by the defendant’s legal team, for example, in paragraph 30 of Mr Fox’s first witness statement, to which I have already referred, and in paragraph 41 of Mr Fox’s second witness statement, which was dated 16 May 2024. The claimant was also prompted by Master Dagnall to consider making such an application.

The primary reasons given by the claimant for his delay in bringing the claim and in making the Claimant’s Limitation Application relate to his imprisonment, his difficulties obtaining legal advice, his ignorance of what was required to bring such a claim, and, to a certain extent, his deteriorating physical and mental health.

The claimant has also asserted at paragraph 14 of his fourth witness statement, which is dated 6 February 2025, that allowing the claim to proceed will somehow be beneficial for Banaz Mahmod and her family because, if the claim is successful, it will help to remove “the stigma” that the alleged rape allegation has brought on them.

The defendant characterises these reasons in its skeleton argument as “obviously poor ones and inconsistent with a genuine desire to vindicate his reputation”. I agree. None of this comes close to evidence of the sort of exceptional circumstances that would make it equitable to disapply the limitation periods. I also note, a fortiori, that if I were to disapply the limitation periods, the prejudice to the defendant would be considerable, given the length of time since the original broadcasts, the fact that both the Documentary and the Drama were produced by separate production companies independent of the defendant, and the fact that the passage of time would make any defence under section 4 of the 2013 Act very difficult.

Were there any merit in the claim, it would still not be equitable, in my judgment, for the court to disapply the limitation periods that apply and allow the claim to proceed. Accordingly, had it been necessary to determine it, the Claimant’s Limitation Application would have failed.

In light of the foregoing conclusions, it is not necessary to deal with the Amendment Application.