MYTHS ABOUT LIMITATION 7: A SECTION 33 APPLICATION REQUIRES AN “EXCEPTIONAL INDULGENCE” FROM THE COURT

I still come across arguments that a claimant seeking an order under Section 33 of the Limitation Act 1980 requires an “exceptional indulgence” from the court. This is another myth that has an historical basis, but has  been dispatched to the history books . The use of this phrase has been disavowed by the Court of Appeal on several occasions.

THE HISTORY OF THE PHRASE

The phrase first occurs in KR & Ors v Bryn Alyn Community (Holdings) Ltd & Anor [2003] EWCA Civ 85, a passage which is still cited on occasion.

    1. We take the following to be well-established and/or uncontroversial starting points for the exercise of the discretion:
i) In multiple claims of this sort, a judge should consider the exercise of his discretion separately in relation to each claim; Nash v. Eli Lilly & Co. [9193] 1 WLR 782, CA, per Purchas LJ at 808F-810E.
ii) The burden of showing that it would be equitable to disapply the limitation period lies on the claimant and it is a heavy burden. Another way of putting it is that it is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it; “

It is easy to see why a defendant, opposing a Section 33 application, will be attracted to this passage.

THE PHRASE ROBUSTLY DISPLACED

In Kew v Bettamix Ltd[2006] EWCA Civ 1535  Leveson LJ considered this argument and observed:

  1. It is important to underline that Auld LJ was not seeking to place a gloss on the observations of Lord Diplock and I read the words “exceptional indulgence” as meaning no more than an indulgence that represents an exception to the general rule that a claim should be brought within the primary limitation period. Inevitably, that casts a burden on the claimant to demonstrate good reason to justify the exception but, again, that burden is itself not intended to suggest that it has necessarily become more difficult since it was first introduced. The discretion remains unfettered but its exercise requires justification the reasons for which are articulated by the judge’s judgment.

CAIN -v- FRANCIS IS STILL THE STARTING POINT

 

In MOD v AB [2010] 117 BMLR 101, Smith LJ said:

“The judge began this section of his judgment by observing, correctly in our view, that the burden of proof under section 33 lies on the claimant (see Thompson v Brown [1981] 1 WLR 744,742) recognising that the suggestion made in KR v Bryn Alyn Community Holdings Limited [2003] QB 1441 that it is a heavy burden is no longer good law. The discretion to disapply section 11 is unfettered and the court’s duty is to do what is fair: see Horton v Sadler [2007] 1 AC 307 and A v Hoare.”
25. The fundamental question is whether it is fair and just in all the circumstances of the particular case to expect the defendant to meet the claim on the merits, notwithstanding the delay in commencing the proceedings: see Smith LJ in Cain v Francis [2009] QB 754. The discretion whether to grant permission is wide and “In resolving an application under section 33 the court must make a decision of which the inevitable effect is either to deprive the defendant of an accrued statute-bar defence or to stifle the claimant’s action against the tortfeasor who caused his personal injuries. In choosing between these outcomes the court must be guided by what appears to it to be equitable, which I take to mean no more (but also no less) than fair, and it must have regard to all the circumstances of the case and in particular the six matters listed in subsection (3). These are, as Lord Diplock observed in Thompson [1981] 1 WLR 744,751, ‘a curious hotchpotch’…” per Lord Bingham Horton v Sadler [2007] 1 AC 307, 323-4.

WHICH IS NOT TO SAY THAT SECTION 33 IS EVERY EASY OR AUTOMATIC

A claimant attempting to rely on Section 33 always bears the burden of persuasion. This is not a discretion that is exercised automatically, or necessarily easily. However any notion that the exercise of a Section 33 discretion is an “exceptional indulgence” is wrong.