Supreme Court New South Wales Medium Neutral Citation: Morrow v Cordell Jigsaw Productions Pty Ltd [2020] NSWSC 1736 Hearing dates: 4 November 2020 Date of orders: 3 December 2020 Decision date: 03 December 2020 Jurisdiction: Common Law Before: Harrison J Decision: (1) Order pursuant to s 56A of the Limitation Act 1969 extending the limitation period for the plaintiff's causes of action for defamation for the publications detailed at subparagraphs (a) to (f) below on the following basis: (a) the limitation period for the matter reproduced at Schedule A of the amended statement of claim dated 8 October 2020 be extended until 11 September 2020; (b) the limitation period for the matter reproduced at Schedule B of the amended statement of claim dated 8 October 2020 be extended until 8 October 2020; (c) the limitation period for the matter reproduced at Schedule C of the amended statement of claim dated 8 October 2020 be extended until 11 September 2020; (d) the limitation period for the matter reproduced at Schedule D of the amended statement of claim dated 8 October 2020 be extended until 11 September 2020; (e) the limitation period for the matter reproduced at Schedule E of the amended statement of claim dated 8 October 2020 be extended until 11 September 2020; (f) the limitation period for the matter reproduced at Schedule F of the amended statement of claim dated 8 October 2020 be extended until 11 September 2020. (2) Order that the costs of the plaintiff's notice of motion filed on 14 October 2020 be the plaintiff's costs in the proceedings. Catchwords: CIVIL PROCEDURE – defamation – where proceedings commenced out of time – whether limitation period to be extended – whether not reasonable for plaintiff to have commenced proceedings within one year of publication of allegedly defamatory material – where proceedings on foot in Equity division – where plaintiff bound by Harman undertaking Legislation Cited: Civil Procedure Act (NSW) s 65 Limitation Act 1969 (NSW) ss 14B, 56A Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 77 NSWLR 136 Carey v Australian Broadcasting Corporation [2012] NSWCA 176 Cassar v Network Ten Pty Limited [2012] NSWSC 680 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Houda v New South Wales [2012] NSWSC 1036 Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483 Category: Procedural and other rulings Parties: Julian Francis Xavier Morrow (Plaintiff) Cordell Jigsaw Productions Pty Ltd (First Defendant) Nicholas Harvey Murray (Second Defendant) Representation: Counsel: S Chrysanthou SC (Plaintiff) L E Barnett (Defendants) Solicitors: Kay & Hughes (Plaintiff) Bird & Bird (Defendants) File Number(s): 2020/264993 Publication restriction: Nil Judgment 1. HIS HONOUR: These proceedings were commenced by statement of claim filed on 11 September 2020, later amended on 8 October 2020. The plaintiff, Mr Morrow, alleges that he was defamed in a series of emails published between 21 May 2019 and 12 August 2019. By operation of s 14B of the Limitation Act 1969, the proceedings were commenced out of time and are therefore not currently maintainable. Accordingly, Mr Morrow has sought an order pursuant to s 56A of the Limitation Act extending the limitation period until 11 September 2020 for the defamation allegedly published in the emails [the Schedule A, C, D, E and F matters], and until 8 October 2020 with respect to an alleged slander made in a telephone conversation on that date in 2019 [the Schedule B matter]. 2. Section 56A provides as follows: 56A Extension of limitation period by court (1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action. (2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication. (3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2). 1. The relevant background and procedural history is briefly as follows. 2. Mr Morrow originally anticipated pursuing the defamation claims particularised in the amended statement of claim by way of amendment to the pleadings in separate proceedings in the Equity Division of this Court, namely The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd. The allegations made by the defendants in the publications relate to the same facts and transactions giving rise to the claims and cross-claim in those proceedings. From 11 September 2020, the publications have also formed part of those proceedings to the extent of claims made against the defendants in injurious falsehood. 3. Mr Morrow first notified the defendants' representatives of his intention to pursue defamation claims against the defendants by amendment to the Equity Division proceedings on 28 May 2020. 4. Mr Morrow maintains that he was unaware before the end of May 2020 of critical information and was unable fully or properly to identify or consider key elements of his claims in defamation, including the number, nature and extent of defamatory matters published by the defendants, the quantum and categories of his damages, or the strength of any defences such as malice or improper motive on the part of the defendants. 5. On 4 and 5 June 2020, orders were made by consent with respect to a timetable for the hearing of the parties' proposed amendments to the Equity Division proceedings, including Mr Morrow's claims in defamation. Under the Court's orders, to the extent the amendments were not agreed, any application to argue the issue was to be heard on 10 August 2020. On 18 June 2020, the defendants' representatives notified Mr Morrow that they disputed his proposed defamation amendments and insisted that the issue be determined by way of motion on 10 August 2020. 6. However, on 30 July 2020, the defendants' representatives indicated that they no longer agreed to that course. They reiterated that position by email to the Court dated 6 August 2020. On 5 August 2020, Mr Morrow filed a notice of motion seeking to amend his claims to include claims in defamation. 7. On 10 August 2020, the Court listed Mr Morrow's notice of motion filed 5 August 2020 for hearing on 28 August 2020. 8. Despite being aware of Mr Morrow's intention to commence defamation proceedings since 28 May 2020, the defendants raised no objection under the Limitation Act until 14 August 2020, or two days after the expiration of the final limitation period. 9. Mr Morrow's solicitors therefore wrote to the defendants' solicitors on 19 August 2020 requesting, amongst other matters, that the defendants agree to an extension of the limitation period pending the determination of the Equity Division proceedings, that the defendants agree to release Mr Morrow from any Harman undertaking in relation to the publications and consent to the use of those materials in separate proceedings. On 21 August 2020, the defendants' solicitors refused that request. 10. Accordingly, on 25 August 2020, Mr Morrow filed an amended notice of motion seeking an extension to the limitation periods for those claims pursuant to s 56A of the Limitation Act as an alternative to the existing motion to amend the Equity Division proceedings to include those claims. 11. On 9 September 2020, Mr Morrow's amended notice of motion dated 25 August 2020 was heard by Stevenson J, who indicated that whilst there was some obvious factual overlap between Mr Morrow's defamation claims and the issues in the Equity proceedings: 1. if he were not persuaded that the defamation proceedings should be incorporated into the Equity Division proceedings, he would be reluctant to embark on deciding the limitation question; 2. the limitation issue was an appropriate matter for the Defamation List; 3. he was very reluctant to have the defamation proceedings incorporated in the Equity Division proceedings, partly because the defendants had foreshadowed that they would require a jury; and 4. if there were to be two separate proceedings, Mr Morrow would need to be able to pursue his defamation claims uninhibited by such things as a Harman undertaking. 1. Pursuant to Stevenson J's directions and orders, Mr Morrow was released from the respective Harman undertakings on 10 September 2020 and 7 October 2020. The test 1. In helpful written submissions, Mr Morrow summarised the applicable principles in applications such as this. They were conveniently summarised by Hislop J in Cassar v Network Ten Pty Limited [2012] NSWSC 680 at [16]: "…(a) the burden that must be discharged is to establish that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication - Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, Rayney v The State of Western Australia (No 3) [2010] WASC 83 at [41]; (b) the onus rests with the plaintiff - Rayney [41], Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676, Carey v Australian Broadcasting Corporation [2010] NSWSC 709, (2010) 77 NSWLR 136 at [45]; (c) the test is objective - Noonan [20], Carey [48]; (d) it is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances - Rayney [41]; (e) if the plaintiff proves the fact then the court is obliged to extend time. Extension in these circumstances is mandatory - Ahmed [28], Carey [45]; (f) section 56A limits the period of extension to an extension 'of up to three years running from the date of publication'. This has been described as involving the exercise of a discretion in the sense of involving a normative judgment - Ritson v Gay and Lesbian Community Publishing Limited [2012] NSWSC 483 at [24], [25]." 1. "The statutory test does not direct attention to whether it was reasonable not to have commenced proceedings. It requires the court to be satisfied it was not reasonable to have commenced an action within one year from the date of publication of the defamatory matter": per Beazley JA in Carey v Australian Broadcasting Corporation [2012] NSWCA 176 at [55]. 2. It is not possible to state exhaustively the circumstances in which a plaintiff might establish that it was not reasonable to commence proceedings within the one year of publication: see Noonan at [17]. The focus must be on the individual circumstances of the case: see Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [42]; Casley v Australian Broadcasting Corporation [2013] VSCA 182; (2013) 39 VR 526 at [54]. The test requires attention to the plaintiff's actual reasons, as they are a vital part of the circumstances pertinent to whether it was reasonable or not to bring the proceedings within the nominated period: Carey v ABC [2010] NSWSC 709 at [48]. 3. A plaintiff does not have to account for every day or week in a limitation year, but must at least in broad terms deal with the whole of the year and must demonstrate why there was no significant period in which it would have been reasonable to commence action: Noonan [49]. The fact that a plaintiff may be pursuing other avenues of redress does not necessarily mean it is unreasonable to commence the civil proceedings: see Ritson at [13]-[27]. 4. Non-exhaustive examples of circumstances where courts have considered that it may not be reasonable for a plaintiff to commence defamation proceedings within one year include: 1. where a plaintiff is unable to ascertain the extent of the defamatory publication: see Noonan at [17]; 2. where a plaintiff is not able to obtain the necessary evidence to commence proceedings: see Noonan at [17]; 3. where a plaintiff is unaware of the existence of the elements of the cause of action: see Houda v New South Wales [2012] NSWSC 1036 at [29]; 4. where a plaintiff is unaware of the likely defences to the claims: see Houda at [29]; and 5. where the offer of amends regime contemplated by the uniform defamation laws was relevant to the pre-litigation resolution of the dispute: see Noonan at [16]. Mr Morrow's submissions 1. Mr Morrow submitted that "the context and number of factors relevant to this motion are unique". Mr Morrow maintained that he encountered a combination of unusual circumstances, the individual and collective impact of which was to make it not reasonable for him to commence defamation proceedings within one-year of the date of the relevant publications. These circumstances are extensively referred to in the affidavits of Benjamin Kay affirmed on 4 August 2020, 24 August 2020 and 14 October 2020. Mr Morrow emphasised the following matters. 2. Despite persistently seeking access to relevant records, Mr Morrow did not have access to the Schedule A, C, D, E and F matters before 13 March 2020, and did not have access to the Schedule B matter before 20 May 2020. With respect to the Schedule B matter, he was only granted access to the document on 20 May 2020, which was approximately three weeks before the expiry of a period of one year after the relevant publication on 12 June 2019. Between the date that Mr Morrow was first provided with access to the respective publications and the end of May 2020, he remained unable fully or properly to identify and consider the number, nature and extent of defamatory matters published, the quantum and categories of potential damages, or the strength of any argument as to malice or improper motive. 3. From the first date of production of the publications until the expiry of the respective limitation period, Mr Morrow submitted that he was also likely bound by an implied Harman undertaking to the Court not to use the materials for a collateral or ulterior purpose, including commencing separate defamation proceedings. He was never released from the Harman obligations before the limitation period expired. In fact, at all times before being released by the Court from the Harman undertakings, the parties who produced the relevant publications expressly rejected his request to be released from them. 4. From around the end of May 2020, Mr Morrow was advised by his solicitor and counsel that it would be unreasonable to commence separate proceedings for defamation and that he should commence those claims by amendment to the Equity Division proceedings, rather than by filing a statement of claim in the Common Law Division. Firm advice to the same effect was repeated after 5 June 2020, and Mr Morrow was informed that commencing separate proceedings would be unreasonable and a departure from the Court's orders, rules and process. 5. In any event, from 4 and 5 June 2020, orders had been made for the making of proposed amendments to the Equity Division proceedings to include Mr Morrow's proposed defamation claims. This was not heard until 9 September 2020. 6. Mr Morrow submitted in these circumstances that there was no significant period within the year following publication in which it would have been reasonable for him to commence an action in defamation. In particular, given the existence of the Harman undertaking, he submitted that it was probably not even possible for him to have done so. 7. Mr Morrow emphasised what he characterised as the following relevant considerations. 8. First, he was unaware of critical information. He did not have access to the Schedule A, C, D, E and F matters prior to 13 March 2020, and did not have access to the Schedule B matter prior to 20 May 2020. 9. Secondly, Mr Morrow relied upon professional legal advice. He was repeatedly advised that commencing separate defamation proceedings would be unreasonable and a departure from the Court's orders, rules and process. That advice did not change before the limitation periods expired in relation to the publications. 10. Thirdly, the Harman obligation. 11. From the time of production of the publications, the parties to the Equity Division proceedings likely owed legal obligations to the Court in regard to those materials according to the principle established in Harman v Secretary of State for the Home Department [1983] 1 AC 280. On that basis, Mr Morrow was bound by an implied undertaking to the Court not to use those materials for any collateral or ulterior purpose. Mr Morrow and his representatives were acutely aware of that principle, and that restriction directly informed their approach to the separate pursuit of his claims in defamation. The relevant publications, being the entire basis of Mr Morrow's defamation allegations, were each produced to him by order and compulsion of the Court, either by order of Hammerschlag J on 21 February 2020 or by the Australian Broadcasting Corporation pursuant to a subpoena to produce on 26 February 2020. 12. Mr Morrow submitted that it would not have been reasonable for him to commence separate defamation proceedings without first obtaining the Court's release from any Harman or equivalent obligation attached to the documents that he intended to use for that purpose. To do so without first obtaining an express release from the Court would have been to risk accusations of contempt. As the proposed defendant was not authorised to release Mr Morrow from the implied undertaking, any view expressed by it to the Court on 9 September 2020 about that approach was beside the point. 13. In fact, on 9 and 10 September 2020, the Court acknowledged that an argument existed in relation to the question Harman undertakings, and released Mr Morrow with respect to the Schedule A, C, D, E and F matters. At the same time, the Court ordered a timetable for Mr Morrow to seek to be released from any similar undertaking in relation to the Schedule B matters, whilst making directions allowing for the ABC to be heard on that question. 14. Mr Morrow was released from the implied undertaking attached to the Schedule B matters by the Court's orders on 7 October 2020. In its decision on costs dated 14 October 2020, the Court expressed the view that there was substance in many of the matters put by the ABC in its opposition to the release of the Harman undertakings: whilst the ABC was unsuccessful, the Court did not consider its opposition to the orders sought by Mr Morrow to be unreasonable. Mr Morrow contends in these circumstances that his cautious approach to the release from the Harman undertakings was prudent and appropriate, and that it would not have been reasonable for him to have acted or proceeded otherwise. 15. I do not understand there to be any suggestion that Mr Morrow unreasonably delayed the commencement of the present proceedings once released to do so. Cordell Jigsaw's submissions 1. Cordell submitted that Mr Morrow's reasons for not commencing proceedings within the limitation period are insufficient to satisfy "the heavy burden" imposed by s 56A. Cordell reasoned as follows. On 13 September 2019, the defendants offered to provide Mr Morrow with copies of the electronic correspondence with the Australian Broadcasting Corporation, subject to Mr Morrow providing the defendants with copies of the correspondence they had been seeking. From 13 March 2020, more than two months before the expiration of the earliest limitation period, Mr Morrow had copies of each of the matters complained of, apart from information sufficient to plead the second matter complained of. From 20 May 2020, Mr Morrow had sufficient information to plead the second matter complained of as well. 2. By 28 May 2020 at the latest, Mr Morrow had formed the view that he wished to amend his pleadings and sue for defamation. By 10 June 2020 at the latest, when proceedings for defamation with respect to only the first matter complained of had expired, Mr Morrow had proposed pleadings ready to file, which he served on the defendants. On and from 18 June 2020, Mr Morrow was aware that the proposed amendments were resisted, including on the basis of the delay they would cause to the Equity Division proceedings. In the letter of 18 June 2020, the defendants' representatives invited Mr Morrow to bring forward any application to amend returnable on 10 August 2020. 3. Mr Morrow did not file a motion seeking leave to make the contested amendments until 5 August 2020. By that time it was too late for the application to be dealt with on 10 August 2020, and at the hearing counsel for Mr Morrow indicated that he did not intend to move on the motion that day. On 25 August 2020, Mr Morrow amended his motion, resulting in the hearing scheduled for 28 August 2020 being adjourned until 9 September 2020. 4. The defendants perceive that Mr Morrow's delay in bringing his amendment application was due to his solicitor's belief that the amendment could be made pursuant to s 65 of the Civil Procedure Act, rendering the limitation period irrelevant, and it was on that basis that he did not seek to bring an application to amend prior to the expiration of the relevant limitation periods. Moreover, he consented to orders on 5 June 2020 providing for any amendment application to be heard on 10 August 2020 rather than seeking an earlier hearing date and did not file an application promptly after being advised on 18 June 2020 that the relevant amendments were contested. Additionally, he left the filing of his notice of motion so late that the application could not proceed on 10 August 2020 and amended it on 25 August 2020 with the result that the hearing had to be adjourned to 9 September 2020. 5. However, whatever may have been the correctness of the belief of Mr Morrow's solicitor about whether the amendment could have been made pursuant to s 65, the defendants submitted that the difficulty for Mr Morrow on this application is that he left his amendment application so late, and not until a time when the Equity Division proceedings were otherwise ready to take a hearing date, that the application was doomed to fail on the basis of delay. The delay that would be caused to the timely resolution of the proceedings by the introduction of claims for defamation was expressly relied upon by the defendants in opposition to Mr Morrow's amendment application. The defendants submitted that Mr Morrow evidently appreciated this, given that the application was abandoned almost immediately at the commencement of the hearing on 9 September 2020. 6. According to the defendants, there is no adequate explanation provided for Mr Morrow's delay in bringing forward and prosecuting his amendment application. His attempt in submissions to rely upon the "circumstances of a pandemic" ought to be rejected. There is no evidence that the pandemic contributed to the delay at all and the suggestion that it did is inconsistent with the evidence as to what was occurring at the time. 7. Further, there is no adequate explanation why, despite Mr Kay's belief and "strong advice", the amendment application was abandoned. The defendants emphasised that Mr Morrow's apparent attempt to explain that by reference to statements made by Stevenson J "does not withstand scrutiny". Stevenson J merely expressed a preliminary thought that if he was not persuaded that the defamation proceedings should be incorporated into the Equity Division proceedings (that is, if the s 65 application failed), he would be disinclined to embark upon the s 56A application. His Honour was not expressing any view, preliminary or otherwise, about the merits of the s 65 application. 8. With respect to the Harman issue, the defendants contended that it is notable that, although Mr Kay deposes that he was conscious of it from at least May 2020, the first time it was raised was 19 August 2020, and then only in the context of a proposed resolution linked to other terms. Mr Kay does not explain why the release was not sought earlier, particularly in circumstances where it was evident from the letter of 18 June 2020 that the defendants considered separate proceedings to be the preferable course. 9. Further, the defendants submitted that it is unlikely to be correct that there was ever any Harman issue: discovery given by the defendants was as a result of an application for preliminary discovery sought for the purpose of bringing proceedings for defamation. To the extent that discovery was subject to an obligation to use the documents only for the purpose of the Equity Division proceedings, it arose as a result of Mr Morrow subjecting himself to it by seeking an order that UCPR Part 21 applied to it. If steps had been taken earlier to resolve the perceived Harman issue, it is likely that Mr Morrow would have been told that the defendants did not consider there was a problem. 10. In addition, in relation to the ABC's position, Mr Morrow has misconstrued its letter of 11 May 2020. The ABC did not indicate, as Mr Kay suggests, that it would not give consent to the documents being used for any purpose other than the proceedings. The ABC merely reminded Mr Kay of the obligation. It says nothing of their preparedness to consent to a release from the obligation in relation to a particular document if they were asked. They were not asked until after 9 September 2020, and no explanation has been provided for this delay. 11. The defendants maintained that it is no answer to the above that Mr Morrow was relying upon legal advice. The evidence as to the advice provided, particularly the timing of that advice, as early as May 2020 and then an unspecified time "after 5 June 2020", does not justify or explain his delay in making the amendment application, his conduct in abandoning the application or his delay in seeking to be excused from the perceived Harman undertaking. 12. In any event, independently of Mr Morrow's explanation for why he did not commence proceedings within the limitation period, he has not explained why he did not agree to the reasonable suggestion of the defendants on 13 September 2019, which would have meant he could have comfortably commenced proceedings within the limitation period without any of the perceived impediments. 13. In these circumstances, the defendants submitted that I could not be satisfied that it was "not reasonable in the circumstances" for Mr Morrow to have commenced proceedings within the limitation period. It could not be reasonable for a plaintiff to decline to accept an offer to provide the documents, and then not commence proceedings in reliance upon an assumption that an amendment would be allowed under s 65, then delay bringing that application until such time as it is doomed to fail and then abandon that application, whilst at the same time failing to take steps to be released from the Harman undertaking in a timely manner. 14. Alternatively, if I were satisfied that it was not reasonable in the circumstances for Mr Morrow to have commenced proceedings within the limitation period, I ought to exercise my discretion to extend time only to a short time after 18 June 2020. That is because by that time Mr Morrow was in possession of sufficient information to plead causes of action in defamation, and had a pleading substantially prepared for that purpose, was aware that the defendants were opposing the contested amendments on the basis of the delay they would cause to the Equity Division proceedings and was aware that their preference was for separate proceedings. 15. Accordingly, Mr Morrow's failure to prosecute his amendment application without delay after this time, and his failure to seek a release from the Harman undertaking, was unreasonable. Consideration 1. It does not seem to me that characterising Mr Morrow's "failure" either to prosecute his amendment application in the Equity Division proceedings without delay or to seek a release from the Harman undertaking as unreasonable directs attention to the correct test. The inquiry is whether it was not reasonable in the circumstances for him to have commenced an action in relation to the matter complained of within one year from the date of the publication. 2. The defendants contended, in essence, that it was unreasonable for Mr Morrow not to have commenced his defamation action within a short time following their solicitor's letter sent on 18 June 2020. It is instructive to consider some of what that letter said. It was written in response to a request to consent to amendments to the Equity Division proceedings to include the defamation allegations: "Our clients do not consent to your clients' proposed Amended Summons… … If your clients wish to proceed with the amendments…they will need to bring a Motion and an affidavit in support. The reasons why our clients do not consent to the Contested Amendments include: (1) The existing claim is a straightforward Commercial List dispute. It is ready to take a hearing date. All that is required is for the parties to quantify their respective damages claims (a relatively simple exercise), and evidence in answer and reply on the Summons and Cross Claim. (2) If the Contested Amendments are permitted, the matter will be subject to substantial procedural delay and complexity (including, without limitation, the question of Mr Murray's right to a jury trial on the defamation claim). The case will get bogged down in the customary procedural mire of the defamation claim process, frustrating the timely resolution of the core dispute between the parties. (3) All of the proposed new claims in the Contested Amendments arise from statements allegedly made by Mr Murray to particular individuals at the ABC after the relevant events in the existing claim. Those claims can await the outcome of the existing proceedings, and will not need to be brought at all if our client succeeds on its Cross Claim. (4) In any event, the proposed new claims in the Contested Amendments are manifestly hopeless. All the alleged statements were of Mr Murray's understanding, and thus undoubtedly true because his beliefs were genuinely and honestly held. To suggest otherwise is both serious, and manifestly untenable. (5) Even if the impugned statements were of fact which the court ultimately finds were untrue (both of which our clients categorically deny), the defamation claim is hopeless because it is difficult to conceive of a clearer case of qualified privilege. (6) Similarly, in respect of the injurious falsehood claims, even if the impugned statements are found to have been untrue, to succeed your clients must prove malice and improper motive. Any sensible reading of the relevant emails from Mr Murray shows that this proposition is hopeless – putting aside the fact that these claims are jarringly improbable having regard to Mr Murray's impeccable character and well-earned reputation. (7) Frankly, these new claims are so lacking in merit, but so certain to cause intractable problems for the just, quick and cheap resolution of the real issues in dispute, that the true purpose behind your clients' attempt to bring these new claims is brought into question. If your clients bring separate proceedings in respect of the claims now sought to be advanced in the Contested Amendments, our clients undertake not to raise any 'Anshun estoppel' as a defence, to the effect that those claims ought reasonably have been brought in these proceedings. In light of this undertaking and the matters articulated above, we cannot see that an attempt to shoehorn the Contested Amendments into these proceedings would be consistent with the obligations of your clients and your firm under section 56(3) and (4) of the Civil Procedure Act. We will rely on this letter in any application to seek the Contested Amendments, including on the question of costs. We will not object to your clients filing an Amended Summons and Amended Commercial List Statement which include only paragraph 3 of the current draft of the Amended Summons, and paragraphs 68 to 78 and 79(c) of the current draft of the Amended Commercial List Statement. However, the Contested Amendments are resisted and, as mentioned above, would need to be sought by way of Notice of Motion returnable on 10 August 2020." (Emphasis added.) 1. The defendants' suggestion in the emphasised paragraph that the contested amendments, being the defamation claims, could await the outcome of the Equity Division proceedings should not pass without comment. It seems obvious to me that the defendants, through their solicitor, were in effect suggesting both that Mr Morrow's proposed defamation claims were not suitable to be added to the Equity Division proceedings, for which reason the amendment application was opposed, and should in any event be put on hold until the Equity Division proceedings had concluded. Moreover, the Anshun estoppel reference clearly acknowledged the prospect that separate defamation proceedings might be commenced at a later time. It was in these circumstances understandable that Mr Morrow did not immediately bring his present claim in this Division. 2. Be that as it may, there was further correspondence passing between the lawyers. The defendants' solicitor replied on 30 July 2020 to some intervening correspondence from Mr Kay in the following relevant terms: "Proposed Amended Commercial List Statement and Summons Our client did not consent to your clients' proposed amendments for the reasons set out in our letter dated 18 June 2020. Your clients' consent to our client's Amended Cross Summons and Amended Commercial List Cross Claim Statement is unrelated to whether our client should permit your clients to file their proposed amendments. As to the writer's affidavit of 25 June 2020, it merely made the point that our client had already brought the necessary Notice of Motion to amend its claim, whilst your clients had not yet filed any amended documents nor made any application to seek the contested amendments. This application ought to have been made immediately after 18 June 2020. We had assumed that your clients were rightly persuaded by our letter of 18 June 2020, and decided not to apply for them. In light of the nature of your proposed amendments – which were not known to us when we agreed to the orders on 4 June 2020, and were not sent to us until after the Court had made the orders on 5 June 2020 – we do not think it will be possible for the dispute over those amendments to be heard at the same half-day hearing as has been set down for our Motion. We therefore suggest that any such Motion will need to be heard separately. It would seem from your letter (in the first paragraph after the heading 'Next Steps') that you accept this." 1. It is apparent that, in the events that occurred, Mr Morrow and the defendants were in a vigorous contest in the Equity Division. There was a close connection between the things alleged by Mr Morrow in those proceedings and the foundation for his defamation claims. Indeed, the defendants contended in correspondence that a loss by Mr Morrow in those proceedings would put paid to his defamation complaints. In that sense, it seems reasonably apparent that Mr Morrow was engaged in the Equity Division in the process of seeking to vindicate his rights arising out of not unrelated circumstances. Mr Morrow wanted to consolidate his claims, presumably with a view to conforming to the overriding purpose, and the defendants were strenuously opposed to that course. Simpson J's reference in Ahmed to a circumstance where it would not be reasonable for a plaintiff to commence proceedings if engaged in non-litigious processes to vindicate his or her rights seems by analogy to apply to the present case. Mr Morrow was not engaged in settlement negotiations in relation to his defamation claims but was involved in an attempt to bring them forward in proceedings already on foot. 2. Finally, but briefly, I do not consider that it was unreasonable for Mr Morrow to have rejected, or not accepted, the defendants' so-called offer contained in their solicitor's letter dated 13 September 2019. The offer was conditional and the conditions were such that Mr Morrow was entitled to decline to agree to them. 3. In my view, it was not reasonable for Mr Morrow to commence his defamation proceedings before there had been a resolution of the contested interlocutory issues in the Equity Division. The defendants emphasise that this occurred before the expiration of the one year limitation period. However, that seems to me to take a far too restrictive view of the relevant time limit. Even if that were not relevant, Mr Morrow was never released from the Harman obligations before the limitation period expired. As already noted, at all times before Mr Morrow was released by the Court from the Harman undertakings, the parties who produced the relevant publications expressly rejected his request to be released or at least reminded him somewhat pointedly of the existence of the undertaking. I agree that Mr Morrow's cautious approach to the release from the Harman undertakings was prudent and appropriate, and that it would not have been reasonable for him to have acted or proceeded otherwise. 4. It would have been in my opinion unreasonable in all of the circumstances for Mr Morrow to have commenced the present proceedings before he did so. It follows that the orders described below should be made: 1. Order pursuant to s 56A of the Limitation Act 1969 extending the limitation period for the plaintiff's causes of action for defamation for the publications detailed at subparagraphs (a) to (f) below on the following basis: 1. the limitation period for the matter reproduced at Schedule A of the amended statement of claim dated 8 October 2020 be extended until 11 September 2020; 2. the limitation period for the matter reproduced at Schedule B of the amended statement of claim dated 8 October 2020 be extended until 8 October 2020; 3. the limitation period for the matter reproduced at Schedule C of the amended statement of claim dated 8 October 2020 be extended until 11 September 2020; 4. the limitation period for the matter reproduced at Schedule D of the amended statement of claim dated 8 October 2020 be extended until 11 September 2020; 5. the limitation period for the matter reproduced at Schedule E of the amended statement of claim dated 8 October 2020 be extended until 11 September 2020; 6. the limitation period for the matter reproduced at Schedule F of the amended statement of claim dated 8 October 2020 be extended until 11 September 2020. 1. Order that the costs of the plaintiff's notice of motion filed on 14 October 2020 be the plaintiff's costs in the proceedings. ********** Amendments 03 December 2020 - [41] Typographical error amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 December 2020