No 'hack' to issuing out of time: a warning to Claimants from the High Court

In Duke of Sussex & others v MGN Ltd [2023] EWHC 3217 (Ch), the latest twist in the ongoing saga over phone hacking, the alleged hacking of celebrated individuals' phone lines was naturally the headline. However, buried in that decision was a discussion of limitation of particular interest to Chambers, after the decision in Smith & Burrell v RBS plc [2023] UKSC 34 brought limitation back to the forefront of a great many Consumer Credit claims.

Among the famous faces bringing claims against MGN were Nikki Sanderson and Fiona Wightman, whose claims were included as test cases along with the Duke of Sussex (commonly referred to as 'Prince Harry') and considered by Mr Justice Fancourt concurrently at an extended trial in the summer of 2023. While finding that all four Claimants had been subject to unlawful intelligence gathering, the Judge nevertheless dismissed Ms Sanderson and Ms Wightman’s cases, on the basis that their claims were statute-barred.

This appears at first blush to be a harsh blow to Claimants who had otherwise made out not just any cause of action, but one stemming from reprehensible conduct by the Defendant. However, a deeper look into the Judge’s decision reveals that it may be that the Claimants have only themselves to blame.

The law and the general case

This case provides a useful summary of case law that has come to define this question [1384 – 1400], and a very useful Judgment for practitioners on this basis alone. The summary is essentially that the Court has settled on an objective "ordinary person" standard for reasonable diligence, and that trigger points (events that may put a Claimant on notice) play a key, but not definitive, role.

Both Claimants here admitted that primary limitation (six years) had expired by the time of issue. They instead relied upon section 32(1)(b) of the Limitation Act 1980. This provides that where deliberate concealment has taken place, the period of limitation can be extended until that concealment is discovered or could have been discovered with reasonable diligence.

It is the concept of reasonable diligence on which cases such as this so often turn. In essence, the question is whether a Claimant could have brought their claim sooner on the basis that they could have discovered the concealment before they did. In this case, both Claimants needed to show that reasonable diligence could not have uncovered evidence of the Defendant’s conduct prior to six years before they issued the claim.

Ms Sanderson and Ms Wightman

Ms Sanderson advanced the argument, in essence, that she was an individual who did not follow the news, and it would not have occurred to her to go and look into these topics, despite their direct applicability to her circumstances.  

The Judge accepted that Ms Sanderson was a person who lacked curiosity [1468] and therefore accepted the factual basis of her assertions. However, Fancourt J was equally clear that this was not relevant to his considerations. He considered that while a lack of interest or knowledge might mean the information genuinely did not come to her attention, this was the not the test to apply.

The Judge was clear that an ordinary Claimant in Ms Sanderson’s position would have been investigating these stories. He highlighted that her lack of interest in newspapers does not mean the 'reasonably diligent person' standard would not apply, but instead that she simply failed to meet it [1482].

Ms Wightman’s case was markedly different. Her case was that rather than simply being inattentive, she was actively distracted by her very ill parents for whom she was caring. Again, albeit with a perhaps more sympathetic tone, Fancourt J again stated that this was not sufficient to engage the extension under section 32(1)(b).

At [1516] he said, “Ms Wightman had a very difficult year in 2015. Many people are unlucky and experience such difficulties in family life; others are more fortunate. But there are not two categories of claimant”. This was a statement of the fundamental principle that when dealing with an objective test, a Claimant’s personal circumstances will only take them so far.

Pitfalls for Claimants

On their respective cases, both Claimants suffered a great injustice, and were in principle deserving of redress from the Court. So where did these Claimants go wrong, and what might be learned from their example?

Firstly, both Claimants appeared to suggest that the reasonable diligence test must be, at least in part, subjective or at the very least, their circumstances should be given greater weight when considering what a reasonably diligent person could uncover. This was a view that the Judge wholly rejected. Whether it was Ms Sanderson’s unusually inattentive nature, or Ms Wightman’s deeply difficult family circumstances, there is only one standard of reasonable diligence.

Of particular interest to practitioners may be the comments of Fancourt J at [1493] where there is a discussion as to how long after the appropriate trigger - in this case, media coverage of the scandal - is appropriate to afford someone, before they ought to have taken suitable advice about the possibility of a claim. Fancourt J notes a lack of clear case law and suggests four weeks in Ms Sanderson’s case. The Court can be generous when considering this question in the cases of unsophisticated litigants, but it proves another reminder that Claimants cannot rely on undue generosity from the Court.

Secondly, the Claimants appeared to treat their concerns around limitation as an afterthought. They both seemed to be of a mind, whether intentionally or otherwise, that this represented a procedural point that they could argue around, with generic statements or token submissions. Fancourt J’s judgment reminds us that limitation is a burden placed upon Claimants and that the period already given is “generous” [1421]. A Claimant must be actively investigating, and as with any question of fact, must be providing proper evidence of this to the Court.

Thirdly, the statutory construction of section 32(1) is clear that deliberate concealment and reasonable diligence are two separate limbs of a test. While this may seem obvious, both these Claimants - and many others - rely on the mere fact of concealment to justify why they could not have uncovered their cause of action. This attempt to merge the two limbs, or use the former as evidence for the latter, is fundamentally misguided.

The fundamental rationale behind this Judgment can be distilled from the key passage at [1423]. Here Fancourt J says:

“The onus of proof in relation to these issues lies on the claimant, and none of these questions is answered or sidestepped by proving that the claimant was in fact unaware of any relevant publicity, as the claimants seemed to think.”

The Court overwhelming rejected the Claimants’ argument that they could clear the section 32(1)(b) hurdle by obfuscating, deflecting and attempting to push the onus on to the Defendant. Fundamentally, it is for the Claimant to prove that reasonable diligence could not have permitted their action to be brought sooner, and attempting to push any element of this onto the Defendant is a fatally flawed approach.

Conclusion

In addition to providing some useful practical guidance in considering a section 32(1)(b) argument, this case serves as a timely reminder that Claimants are rightly held to a high standard by section 32(1)(b). While the engagement of this section only applies where the Defendant has in some way erred, this does not mean that the Court will take a generous approach to Claimants in this position.

Anyone confronting an argument pertaining to section 32(1)(b) would do well to avail themselves of this case, and consider careful whether the Claimant has properly pleaded and evidenced their case.

This article was written by 25 Canada Square Chambers Member Sam White.