Keeping journalists’ notes and evidence is vital, in case m’learned friends take an interest in a story.

Since the general rule in English law is that a libel claim must be brought within 12 months of the date of publication, reporters are well accustomed to retaining the paperwork for at least a year. In practice, many keep notebooks and material for longer, to be on the safe side.

After all, the court has a discretion under the Limitation Act to extend the libel limitation period and allow a claimant to sue at a much later date if there are good reasons for the delay – for example, the claimant did not become aware of the defamatory publication until after the 12 months had expired.

So sometimes journalistic evidence is actually needed far longer to deal with claims issued, or belatedly pursued, many years in the future.

Another factor is the rise in the number of privacy claims for which the limitation period is generally accepted to be six years.

Usually, privacy complainants take legal action swiftly, immediately before or after publication when the intrusion is likely to seem most distressing. But technically, there is little to prevent such a claim being started six years down the road.

By then, key personnel may have left the relevant media organisation, and evidence may have been discarded or lost, making it very difficult to defend a claim.

An even more extreme scenario arose in a recent libel case against the Irish Daily Mirror, involving a delay of seven years in pursuing the claim. Although the case was decided under Irish law, it illustrates potential problems.

The newspaper was sued by businessman Dermot Desmond over articles that it published in January 1998 which suggested he helped fund the “champagne lifestyle” of Charles Haughey, the former Taoiseach (Prime Minister).

Mr Desmond issued the libel claim in 1998, but after the paper decided to defend on the basis of justification and the pleadings were finalised, he took no further action to pursue the case (apparently awaiting progress in a separate tribunal enquiry, related to the articles’ subject matter).

The paper thought he had dropped the claim but in 2005 his lawyers said he intended to proceed. The paper tried, unsuccessfully, to persuade the High Court to dismiss the case because of the delay.

It then appealed to the Supreme Court, by which time the reporter who wrote the articles, and the Irish Daily Mirror’s editor and editor-in-chief, had all left the paper’s employment. What is more, the reporter’s notes could no longer be found.

The court agreed the delay was inordinate and inexcusable but, by a two-to-one majority, decided Mr Desmond’s claim could proceed.

Justice Macken said: “It is axiomatic that there is an obligation on a party pleading justification to remain at all times in possession of all the evidence, including notes, which go to support the plea, as well as all the meanings contended for, at the time of the delivery of the defence.

“A failure to do so in my view may well constitute, depending on the circumstances, negligence, even gross negligence, on the part of the party invoking such a plea who fails to ensure that the evidence is in fact maintained, at least to the expiry of a limitation period.”

The dissenting judge, Justice Kearns, said that in light of the delay of “approximately seven years from the inception of proceedings” he was unwilling to allow Mr Desmond’s claim to proceed, particularly where some matters complained of in the articles happened as long ago as the late 1980s. But he was out-numbered.

A different outcome might have been achieved under English law because its Civil Procedure Rules require courts to manage cases actively and intervene if they are drifting into unreasonable delay.

And, of course, it must be remembered that Mr Desmond’s case involved delay that occurred after, not before, the claim was commenced, so the bone of contention was not about delay beyond a limitation period.

Nevertheless, in view of English judges’ discretion to extend the libel limitation period well beyond 12 months, the rise in privacy claims which have a six-year limitation period, and the startling example of a permitted seven-year delay in Mr Desmond’s libel claim against the Irish Daily Mirror, the legal purist might suggest it is time for newsrooms to review their archive strategies and keep notes and evidence for longer.

In the real world, however, is this asking too much of hard pressed reporters and editors? As ever, it all comes down to balancing the risk and making a judgment call.

Comments

Michael Whelan (02/12/2008 14:50:52)
I can’t understand why a reporter wouldn’t keep their notes for at least a year. I have notebooks going back three or four years all kept in a big cardboard box in my office. They take up hardly any space and it’s come in useful on any number of occasions when I’ve remembered speaking to someone in previous years whose name has cropped up again (I’m also a bit anal about dating my notes!).