SECTION 33 DISCRETION UPHELD: ERRORS OF THE LAWYERS NOT NECESSARILY LAID AT THE DOOR OF A CLAIMANT

December 1, 2017 · by · in Appeals, Limitation

In Greater Manchester Police v Carroll [2017] EWCA Civ 1992 the Court of Appeal upheld a decision of the circuit judge allowing the claimant’s application under Section 33 of the Limitation Act 1980.  The case is interesting because it supports the proposition that a claimant is not necessarily to blame for delays or mistakes made by his solicitors.  There is an important summary of the relevant principles to be applied to a Section 33 application.

“Delay caused by the conduct of the claimant’s advisers rather than by the claimant may be excusable in this context”

THE CASE

The claimant is a former police officer. His case was during his work as an undercover police officer he became addicted to drugs. This arose as a result of the breach of duty of the defendant.

THE APPEAL

At first instance the Circuit Judge found that the action was not statute barred, in the alternative that it was appropriate to make an order under Section 33.  At the appeal stage it was conceded that the judge erred on the date of knowledge issue.

The claim form was issued on 4 November 2013. At the appeal stage it was conceded that the claimant’s date of knowledge was 31st December 2009.

JUDGMENT IN THE COURT OF APPEAL ON THE SECTION 33 ISSUE
    1. Section 33(3) of LA 1980 requires the court, when exercising its discretion under section 33(1), to have regard to all the circumstances of the case but also directs the court to have regard to the five matters specified in sub-sections 33(3)(a)-(f). There are numerous reported cases in which the court has elaborated on the application of that statutory direction in the context of the particular facts of the case. In many of the cases the court has stated various principles of general application. The general principles may be summarised as follows.
1) Section 33 is not confined to a “residual class of cases”. It is unfettered and requires the judge to look at the matter broadly: Donovan v Gwentoys Ltd [1990] 1 WLR 472 at 477E; Horton v Sadler [2006] UKHL 27, [2007] 1 AC 307, at [9] (approving the Court of Appeal judgments in Finch v Francis unrptd 21.7.1977); A v Hoare [2008] UKHL 6, [2008] 1 AC 844, at [45], [49], [68] and [84]; Sayers v Lord Chelwood [2012] EWCA Civ 1715 [2013] 1 WLR 1695, at [55].
2) The matters specified in section 33(3) are not intended to place a fetter on the discretion given by section 33(1), as is made plain by the opening words “the court shall have regard to all the circumstances of the case”, but to focus the attention of the court on matters which past experience has shown are likely to call for evaluation in the exercise of the discretion and must be taken into a consideration by the judge: Donovan at 477H-478A.
3) The essence of the proper exercise of the judicial discretion under section 33 is that the test is a balance of prejudice and the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant: Donovan at 477E; Adams v Bracknell Forest Borough Council[2004] UKHL 29, [2005] 1 AC 76, at [55], approving observations in Robinson v St. Helens Metropolitan Borough Council [2003] PIQR P9 at [32] and [33]; McGhie v British Telecommunications plc [2005] EWCA Civ 48, (2005) 149 SJLB 114, at [45]. Refusing to exercise the discretion in favour of a claimant who brings the claim outside the primary limitation period will necessarily prejudice the claimant, who thereby loses the chance of establishing the claim.
4) The burden on the claimant under section 33 is not necessarily a heavy one. How heavy or easy it is for the claimant to discharge the burden will depend on the facts of the particular case: Sayers at [55].
5) Furthermore, while the ultimate burden is on a claimant to show that it would be inequitable to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the defendant is, or is likely to be, less cogent because of the delay is on the defendant: Burgin v Sheffield City Council [2015] EWCA Civ 482 at [23]. If relevant or potentially relevant documentation has been destroyed or lost by the defendant irresponsibly, that is a factor which may weigh against the defendant: Hammond v West Lancashire Health Authority [1998] Lloyd’s Rep Med 146.
6) The prospects of a fair trial are important: Hoare at [60]. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims, especially when any witnesses the defendant might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why: Donovan at 479A; Robinson at [32]; Adams at [55]. It is, therefore, particularly relevant whether, and to what extent, the defendant’s ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents: Robinson at [33]; Adams at [55]; Hoare at [50].
7) Subject to considerations of proportionality (as outlined in (11) below), the defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount: Cain v Francis [2008] EWCA Civ 1451, [2009] QB 754, at [69].
8) It is the period after the expiry of the limitation period which is referred to in sub-subsections 33(3)(a) and (b) and carries particular weight: Donovan at 478G. The court may also, however, have regard to the period of delay from the time at which section 14(2) was satisfied until the claim was first notified: Donovan at 478H and 479H-480C; Cain at [74]. The disappearance of evidence and the loss of cogency of evidence even before the limitation clock starts to tick is also relevant, although to a lesser degree: Collins v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 717, [2014] PIQR P19, at [65].
9) The reason for delay is relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction: Cain at [73]. I consider that the latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant’s ability to defendant the claim.
10) Delay caused by the conduct of the claimant’s advisers rather than by the claimant may be excusable in this context: Corbin v Penfold Company Limited [2000] Lloyd’s Rep Med 247.
11) In the context of reasons for delay, it is relevant to consider under sub-section 33(3)(a) whether knowledge or information was reasonably suppressed by the claimant which, if not suppressed, would have led to the proceedings being issued earlier, even though the explanation is irrelevant for meeting the objective standard or test in section 14(2) and (3) and so insufficient to prevent the commencement of the limitation period: Hoare at [44]-[45] and [70].
12) Proportionality is material to the exercise of the discretion: Robinson at [32] and [33]; Adams at [54] and [55]. In that context, it may be relevant that the claim has only a thin prospect of success (McGhie at [48]), that the claim is modest in financial terms so as to give rise to disproportionate legal costs (Robinson at [33]; Adams at [55]); McGhie at [48]), that the claimant would have a clear case against his or her solicitors (Donovan at 479F), and, in a personal injury case, the extent and degree of damage to the claimant’s health, enjoyment of life and employability (Robinson at [33]; Adams at [55]).
13) An appeal court will only interfere with the exercise of the judge’s discretion under section 33, as in other cases of judicial discretion, where the judge has made an error of principle, such as taking into account irrelevant matters or failing to take into account relevant matters, or has made a decision which is wrong, that is to say the judge has exceeded the generous ambit within which a reasonable disagreement is possible: KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 783, [2003] 3 WLR 107, at [69]; Burgin at [16].
    1. There was some debate before us as to the date on which the limitation period began in the light of the claimant’s concession that the Judge was wrong in his approach to section 14(2) and (3) on the facts. Mr Ian Skelt, counsel for the defendant, submitted that the limitation period began in May 2009 when the training session at Sedgley Hall took place, or in June 2009 by which time, as the Judge observed, the GP’s notes showed that the claimant had made a connection between his drug taking in his private life and his exposure to heroin in the course of his employment.
    2. Mr Anderson accepted in the course of his oral submissions that, for the purposes of section 14(2) and (3), the events of May and June 2009 relied upon by Mr Skelt were the starting point for fixing the commencement of the limitation period: the primary injury was addiction to heroin, and the claimant became addicted to (and was aware he was addicted to) heroin shortly after the 6 May 2009 training session. Mr Anderson submitted, however, that section 14(2) would not have been satisfied until after a further period of a few months in which it would have been reasonable for the claimant to seek expert medical evidence prior to the commencement of any proceedings against the defendant. It is not necessary to resolve that debate, which might turn on a detailed analysis of the claimant’s precise state of mind, knowledge and addiction at that time, since I do not consider that it makes any difference to the outcome of the appeal whether the limitation period began to run in May or June 2009 or a month or so later.
    3. Mr Skelt observed that the Judge had addressed the section 33 point only briefly. He submitted that there was no good reason for the delay of up to 18 months prior to the issue of these proceedings in November 2013. He said that the Judge’s mistaken approach to the issue of knowledge for the purposes of section 14(2) had infected the exercise of his discretion under section 33. He submitted that the Judge’s observation that delay gave rise to equal prejudice to both parties was inapposite because it was never argued on behalf of the claimant that he had suffered evidential or procedural prejudice from the delay; and it was inadequate because it failed to address the particular prejudice to the defendant arising from the delay as outlined in the witness statement dated 30 June 2015 of Mr David Finch, the defendant’s solicitor.
    4. In paragraph 23 of his witness statement Mr Finch said that the following documents “have been searched for but which are missing/no longer in the Defendant’s possession or which the Defendant can no longer say ever existed”:
“DC Halliwell’s (cover officer on Operation Bluebeard) daybooks for dates after 26 July 2007.
E-mails between the organiser of the Sedgley Park drug course and the presenter, who was external to GMP. These have been deleted with the passage of time.
Any other e-mails or written notes relating to the structure, format, logistics and organisation of the lecture.
Any record of any feedback that may or may not have been generated in any format.
Notices relating to the lecture if recorded may have been retained in a ‘daily journal’ that was open to all staff in the [undercover] unit. This book has now been destroyed having been ‘weeded’ after 3 years.
The Claimant’s daybooks for the period of ‘Operation Chain’ that covered 19 March 2009 to 2 May 2009.
Any documents relating to the Claimant complaining that he felt strange or unwell after kiting or that he had complained about having to kite (the Defendant’s position on this is as set out in the Defence).
Any text messages between the Claimant and the officer named at paragraph 11 of the Amended Particulars of Claim.”
  1. In paragraph 24 of his witness statement Mr Finch identified the following three categories of documents as those of which “we are unaware as to whether they exist or not because they would be in the Claimant’s possession”: records of relevant text message exchanges between the claimant and other persons attending the training session; documents relating to the NHS drug treatment centre which the claimant attended for hypnotherapy sessions; and any updated medical/GP records post-dating January 2013.
  2. I do not accept that, in carrying out the balancing exercise for the purposes of section 33, the matters mentioned in those paragraphs of Mr Finch’s witness statement amount to real prejudice to the defendant as a result of the claimant’s culpable delay. In the first place, there is no evidence as to when the documents ceased to be available, whether before, during or after the limitation period commenced. It cannot be said, therefore, that the documents were lost, disappeared or were destroyed during any period of delay, let alone any undue delay, by the claimant in commencing the proceedings.
  3. Secondly, in the case of some of the documents, in particular the daybooks, it was for the police force itself to retain them. We were informed by Mr Skelt, on instructions, that the practice was for the police force to retain daybooks indefinitely. No explanation has been given as to why that practice was not followed in the present case.
  4. Thirdly, Mr Finch himself says that the defendant does not know whether certain of the documents specified in paragraph [23] of his witness statement ever existed at all or whether any of the documents in paragraph [24] of his witness statement ever existed. Accordingly, as regards the absence of those documents, any prejudice to the defendant from the claimant’s delay is entirely speculative
  5. Fourthly, there is no evidence that any enquiries have been made of present or former police officers, whether or not attending the training session in June 2009 or participating in Operation Bluebeard or Operation Chain (two police operations in which the claimant was involved and are mentioned in Mr Finch’s witness statement quoted above), as to their recollection of any relevant matters that took place or did not take place, or as to standard practice at that time, including training and risk assessment, or as to whether they have knowledge or possession or had possession of any of the documents specified or can say what became of them and when. There is no evidence that any specific person, who the defendant would have wished to call as a witness, cannot be traced or cannot recall at all or with sufficient clarity relevant events and matters.
  6. Fifthly, evidence presumably is available as to the present practice in relation to training sessions and operations of a similar kind to those which involved the claimant and as to whether or not that practice has changed over time and, if so, when and why.
  7. Mr Skelt next submitted that the Judge was wrong to accept, as he did in paragraphs [20] and [24] of the judgment, the claimant’s argument that it was reasonable for the claimant not to be frank when seeking medical advice. He emphasised that the claimant had a confidential relationship with his doctor and that the claimant had in fact told his doctor on four different occasions that he was an undercover police officer. Mr Skelt observed that the claimant had also told the same to Lifeline and that he was a heroin addict. He submitted that the claimant had intentionally and unreasonably withheld a crucial part of the diagnostic picture. Mr Skelt further observed that the claimant at all times had access to the Police Federation for legal and other advice.
  8. In order to succeed on this point, Mr Skelt had to argue, and did argue, that no judge, acting properly, could have come to the conclusion that it was reasonable for the claimant not to be fully frank when seeking medical advice. I have no hesitation in rejecting that proposition. On the particular facts of the present case, it was undoubtedly a conclusion to which the judge was entitled to arrive. The claimant believed that disclosure of his addiction would have exposed him to the high risk of dismissal from his employment and criminal proceedings. It was not unreasonable for him to try to deal with his addiction without exposing himself that risk. It was not unreasonable for him to seek expert medical advice and legal assistance only when he began to be investigated and was subsequently arrested for criminal activity.
  9. Mr Skelt appeared in his reply submissions to play down suggestions as to what may have motivated the claimant in relation to non-disclosure of his addiction, warning that the court should not go beyond the matters specifically mentioned by the claimant in his evidence. It is necessary to bear in mind, however, that he was a litigant in person before the Judge, and the risk of loss of employment and criminal proceedings was obvious.
  10. It is relevant, and in favour of the claimant, that he instructed his solicitors in November 2012, only some four months after the expiry of the limitation period, those months themselves being a period of turmoil for the claimant when he was under investigation and ultimately arrested for criminal offences. Once again, the distraction of those matters is obvious whether or not they were expressly mentioned by the claimant in his evidence before the Judge when he was a litigant in person.
  11. Further, it is relevant, and in favour of the claimant, that the delay from November 2012 until November 2013, when the claim form was issued, was not the claimant’s fault. It appears from the witness statement of Mr Paul Jackson, his solicitor, that both the claimant’s solicitors and counsel were of the view that the limitation period would not expire until November 2013. That view on the part of the claimant’s advisers doubtless affected the timetable for the commencement of proceedings. Those advisers would no doubt argue that their view was not an unreasonable one, bearing in mind that the Judge himself considered that it was appropriate to distinguish between the physical drug addiction, on the one hand, and consequential depression, on the other hand, and that the limitation period did not begin to run until February 2012 when the claimant’s GP first diagnosed depressive disorder.
  12. Mr Skelt also criticised delay in the prosecution of the proceedings after they were issued. The Judge expressed the view (at [23]) that there had been very little delay by the claimant after the cause of action arose. In any event, there is no evidence that any undue delay after the issue of the proceedings was the fault of the claimant personally as opposed to the actions taken or not taken on his behalf by his lawyers.
  13. On the question of proportionality, Mr Skelt submitted that this is a weak claim, bearing in mind, among other things, that there are only three references to “kiting” in Operation Bluebeard and that, at the end of that Operation, the claimant was, on his own admission, in good health. He also submitted that defence of the proceedings would be expensive, and it would be administratively complicated due to the sensitivities of the activities under consideration.
  14. So far as concerns the legal strength of the claim, it would be entirely inappropriate at this stage to conduct a mini-trial on very limited evidence. It cannot be said that the claim is so weak or inherently implausible that it could be stuck out or dismissed on summary judgment. If the claim is made out, then the claimant will have suffered significant loss and damage as a result of the defendant’s negligence. In any event, the defendant’s points on proportionality are misplaced because, at the appellate stage, the test is not so much proportionality as whether the decision is flawed by an error of principle or is wrong, in the sense that it is outside the bounds of any legitimate exercise of judicial discretion. The points made on behalf of the defendant fall far short of satisfying that test.
  15. Mr Anderson advanced other grounds for supporting the Judge’s exercise of his discretion under LA 1980 s 33, including the public interest in ensuring that police officers are not harmed in carrying out such under-cover operations as feature in the present case. They were not, however, addressed by the Judge and are not essential to uphold his decision, and so it is not necessary to address them here.
  16. For all those reasons, I would dismiss this appeal.
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