Defamation limitations

A practitioner was asked to advise a client about a potential defamation claim. The practitioner took instructions eight months after the first of a series of allegedly defamatory statements were said to have been made.

He promptly briefed Counsel for advice and wrote to the client highlighting the limitation period under section 5(1AAA) of the Limitation of Actions Act 1958 (Vic) would start to expire in three months. He asked the client for details of the allegedly defamatory publications and witnesses.

One month later the client provided a list of names of potential witnesses but not details of the defamatory statements.

A further two months later the client provided the practitioner with additional instructions about the statements and witnesses. Counsel reviewed this material and wrote to the practitioner, noting the limitation periods regarding the alleged publications were progressively expiring, and advised the claim otherwise had weak prospects and should not be pursued.

The client did not accept Counsel’s recommendation. The practitioner prepared and sent a statutory notice of concerns to the relevant party complaining about the allegedly defamatory statements.

When proceedings were eventually issued, more than 12 months had elapsed since most of the statements were made. Consequently the action relied only on some of the statements, which occurred later in time and for which the allegations of defamation were especially weak. The client subsequently changed lawyers and shortly after agreed to discontinue the action.

The client then sought from the practitioner reimbursement of costs paid, the second lawyers’ costs and damages on account of the lost opportunity to pursue a successful defamation action.

Although the practitioner advised the client at the outset of the 12 month limitation period he then allowed the time limits for each statement to expire. The practitioner said later that he thought the claims had little chance of success and he was hopeful of convincing the client to drop the matter. He failed to properly document the advice and failed to stop acting when the client refused to take his advice. This left him exposed to allegations of failing to issue proceedings within time.

Lessons

• Identify and diarise applicable limitation dates at the start of each matter and advise the client of the dates and importance of acting before then.
• Be careful not to let matters drag on. If the client will not respond to requests for instructions or accept your advice terminate the retainer.