Libel: Extension of time for service of particulars of claim

In the case of Gregory v Benham [2012] EWHC 2971 (QB), the Appellant, Gregory appealed against a masters decision to strike out his claim for libel and malicious falsehood against the respondent and refusal to grant an extension of time.

Gregory had served his claim form within the 12 month limitation period but had failed to serve his particulars of claim within 14 days of serving his claim form, serving them 2 months later. The master refused Gregory’s application for an extension of time for service of the particulars of claim and struck out his claim.

The master mistakenly said in his judgement that Gregory’s claim had been brought outside of the limitation period and that the particulars of claim were filed nearly 3 months late.  However he made it clear that as the point had not been taken he put it to one side. The master also said that if he exercised his discretion to allow an extension of time, he would be “flying in the face of authority” and he would be “depriving Benham of his accrued rights” which had accrued to him because of Gregory’s “wholesale failure to comply with the rules”.

The judge was wrong. The claim was in fact issued within time. Gregory had 4 months to serve the claim form and a further 14 days after that to serve the particulars of claim. The master and everyone else appeared totally confused as to the rules as to service and limitation.

The Appeal was dismissed.

The master was not taken to have concluded that he was bound by authority to strike out the claim or to have believed that he was deprived of any discretion.When he said that extending time would fly in the face of authority, the master was referring to the numerous cases in which it had been urged, specifically in defamation claims, that claimants should act with expedition.

The master did not believe that he had no discretion and was bound to strike the claim out.  He was merely pointing out that there had been a failure to comply with the Civil Procedure Rules (CPR) and there was no proper explanation why.

Further the master’s statement as to Benham’s accrued rights was not a reference to his mistaken belief that Gregory’s claim had been issued outside the limitation period. Although it was unclear what the master meant by Benham’s  “accrued rights” there was nothing to justify granting an extension other than that otherwise, Gregory would lose his claim.

Mr Justice Eady said

“In referring to the “wholesale failure to comply with the rules”, which the Master undoubtedly took into account in the exercise of his discretion, I would take him to have had in mind the three factors already identified; namely, (i) the failure to comply with the pre-action protocol, (ii) the omission of the details required on the claim form by PD 53, para 2.2(1), and (iii) the long delay in serving the particulars of claim. I consider that the Master was entitled to characterise the failures as he did.”
The master was entitled to characterise those failures as he did.  Eady said he had not erred in fact or law in any material sense so as to vitiate the exercise of his discretion nor had he stepped outside the bounds of the generous ambit within which reasonable disagreement was possible.

Even if the  court had misinterpreted the master’s comments and he had made a material error of law such that it had exercised its discretion afresh it would have come to the same conclusion on Gregory’s application for an extension of time. Whilst the court had sympathy with him, in claims for Malicious falsehood and Libel the Claimant needed to get on with the claim.

It is important if you have a claim to bring you do so promptly. There is a one year period to bring a claim. Time will expire very quickly and errors made in procedure could be catastrophic with little sympathy from the court.



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