Clarity On Limitation and Declarations
A recent judgment by Fogarty J has ironed out some inconsistencies between limitation and non-monetary relief that have bedevilled lawyers seeking clarity.
The Defamation Act gives plaintiffs the option to seek, in addition or alternatively to damages, a declaration or a recommendation by the Court that a correction be published. However, since the enactment of the Limitation Act 2010, a question mark has hung over whether these alternative remedies are subject to the ordinary 2-year limitation period for damages claims. On one hand, s 11 of the Limitation Act provides expressly that limitation is a defence “to a money claim“, but does not mention other relief. This seems to differentiate the application of limitation defences to claims for non-monetary relief. By contrast, s 4(6A) of the Limitation Act 1950 provided that the limitation was a defence whatever the relief sought.
In 2014, Courtney J, when dealing with the case of Rafiq v Commissioner of New Zealand Police [2014] NZHC 814, observed at [13] that the apparent distinction in the new legislation “would seem to be an unintended gap“.
Intended or otherwise, in Maltese Cat Ltd v John Doe [2017] NZHC 1728, Fogarty J addressed the issue head-on. Referencing longstanding principles of declaratory relief, his Honour ruled definitively at [22] that a pleaded limitation defence “does not apply to applications for a declaration“.
The take-away from this otherwise unremarkable decision, is that plaintiffs whose claims for damages are time-barred would appear to be able to maintain their action by seeking a declaration–if not also other non-monetary relief–to at least enable some vindication from defamatory slurs.
One point that remains unanswered–something Fogarty J was able to sidestep on the case before him–is whether, or to what extent, New Zealand’s multiple-publication rule permits a plaintiff to maintain a residual claim for damages when it is otherwise time-barred. This point is most pressing in cases of defamation online where the offending content is first posted over two years before proceedings are issued.