AN UNSUCCESSFUL ATTEMPT TO APPEAL JUDGE’S EXERCISE OF DISCRETION UNDER S.33 OF THE LIMITATION ACT 1980 IN FAVOUR OF THE CLAIMANT

In HMG3 Ltd & Anor v Dunn [2019] EWHC 882 (QB) Mrs Justice Yip upheld the findings of a Circuit Judge who exercised their discretion under Section 33 in favour of a claimant.

THE CASE

The claim is brought by a widow whose husband died in 2012, he died from bronchopneumonia, having contracted asbestos as a result of the alleged negligence of the defendant. The claim form was issued in 2015.  At a trial of a preliminary issue the judge found that the deceased’s date of knowledge was 2008. The judge went on to exercise the discretion under Section 33 of the Limitation Act 1980 in favour of the claimant. The defendant appealed the judge’s finding under Section 33.

THE APPEAL

The defendant’s appeal was unsuccessful.  The finding of the Circuit Judge was upheld. Mrs Justice Yip stated:

    1. The judge was therefore right to focus upon the impact of the delay since 2008. That was one of the statutory factors. The passage of time prior to that was relevant, but of less weight, being merely part of the circumstances of the case.
    2. To the extent that any additional prejudice had been caused by the delay since 2008, that was to be treated as a serious matter. Here though the judge found that there was no additional prejudice as a result of the delay since 2008. The real question then is whether that finding is sustainable.
    3. Mr Turton accepts that by 2008 any evidence that may have been available from the defendant companies had gone. He identified two material changes in the evidential picture after 2008. First, the deceased’s death removed the opportunity to obtain any further information from him. Mr Turton argued this was particularly significant since he had not even provided a witness statement. Had the claim been brought before his death, he could have been questioned by the defendants whether by way of a Part 18 request and/or cross-examination or deposition.
    4. The second evidential change relied upon is the destruction of the deceased’s DWP records in about mid-2014. He had applied for attendance allowance and industrial injuries disablement benefit. The defendants point to the fact that the application forms for such benefits are routinely obtained in claims such as this and may provide additional information to assist the defendants’ case.
    5. The thrust of the defendants’ submissions about the deceased’s death and the destruction of the DWP records was that potential evidence allowing them to seek a contribution from another party may have been lost.
    6. I fully accept that the loss of an opportunity to seek a contribution would be an important factor. However, I do not consider that this was a real rather than fanciful possibility.
    7. The deceased’s HMRC National Insurance records are still available and provide details of his employment history, including the names of his former employers. A letter from the chest physician who saw the deceased in 2008 records the employment history, specifically in the context of consideration being given to asbestosis. It seems to me that it is highly unlikely that the defendants would have secured any further material evidence either from the deceased or his DWP records.
    8. Despite Mr Turton’s attractive submissions to the effect that the defendants lost their final opportunities to investigate liability and to see whether they could pursue any claims for contribution after 2008, I am unpersuaded that anything was really lost in this period. I think that the judge ought to have dealt with the loss of the deceased and the DWP records in his judgment since those issues had been raised. However, having examined the available evidence and looked carefully at what the defendants claim to have lost, I conclude that he was right to find that the defendants’ position was no worse in 2015 than in 2008. Not only was that a decision open to the judge, it was the only sensible conclusion.
    9. The defendants also argue that in addressing the cogency of the evidence likely to be adduced by the claimant, the judge erred in not directing himself in accordance with KR v Bryn Alyn Community (Holdings) Limited [2003] 3 WLR 107 that he should take care not to elevate the cogency of the claimant’s evidence by reason of the fact that the defendant was no longer able to properly challenge it.
    10. I do not accept that the judge materially misdirected himself with regard to Bryn Alyn. The difficulty that arose in Bryn Alyn was that limitation was not determined as a preliminary issue and the judge fell into the trap of relying on his substantive findings to assess the cogency of the evidence for limitation purposes, without recognising that the picture might have been very different had the defendant not faced the evidential difficulties caused by the delay.
    11. Here, the judge did what he was required to. He noted that the claimant appeared to have cogent evidence to support the claim. That was relevant to the balancing exercise he was required to undertake since a claimant suffers little prejudice if deprived of a claim that is unlikely to succeed. The judge did not elevate the significance of the cogency of the claimant’s evidence above that. The thread that runs through his judgment so far as sub-section (b) is concerned is that the defendants’ position was no worse in 2015 than in 2008.
Evidence of prejudice
    1. It is right that the burden of proving that the discretion should be exercised in her favour rested upon the claimant. The judge had that in mind, having set out the principles identified in Carroll.
    2. The defendants contend that the judge misdirected himself in relation to what was required to discharge that burden. Their skeleton argument argued:
“The combined effect of the decisions in Cain and in Carr is to confirm that neither the loss of the Defence (for the Defendant) nor the loss of right to pursue the claim (for the Claimant) fall to be taken into account. Rather it is for each party to adduce evidence of additional prejudice in order to justify the resolution of the balancing exercising in Section 33(1) in their favour.”
That argument was based upon the interpretation of what McCombe LJ said at para. 48 of Carr, responding to a submission made by Mr Turton (who also appeared in that case) that the prejudice to a claimant for the purpose of s.33(1), relates exclusively or at least mainly to the prejudice caused by the loss of the claim and not to prejudice in the litigation more generally. McCombe LJ said:
“I do not think that is correct. The wording of section 33(1)(a) is quite general with regard to prejudice to a claimant and is in precisely the same terms as section 33(1)(b) relating to prejudice to a defendant. As I have said already, potential prejudice to a claimant by the loss of his or her claim is the universal consequence of a claimant losing a limitation argument. Further, the Master of the Rolls said in paragraph 42(3) of his judgment in Carroll (supra) that the burden was on the claimant to show that his or her prejudice would outweigh that to the defendant. This must presume that factors of prejudice, beyond mere loss of the claim itself, can be advanced by a claimant in argument on the application of section 33 in any given case in order to satisfy that burden. In the same paragraph of the judgment, the Master of the Rolls said, “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.””
    1. I do not consider that this paragraph can be read as requiring the claimant to adduce evidence of additional prejudice beyond the loss of the claim. Indeed, it is difficult to see what prejudice claimants can generally rely upon other than the loss of the claim. The effect of not exercising the discretion in the claimant’s favour would be to wholly deprive her of her claim. As recognised by the Master of the Rolls in Carroll this necessarily prejudices the claimant. Further the burden on the claimant under s.33 is not necessarily a heavy one. While the ultimate burden is on a claimant to show that it would be equitable to disapply the statute, the evidential burden of showing the evidence likely to be adduced is likely to be less cogent is on the defendant (Carroll para 42.5).
    2. Ultimately, there is a balance to be performed, recognising the prejudice to the claimant in losing her claim set against the prejudice to the defendant in being required to meet the claim out of time. It is for the claimant to show it is equitable to allow the action to proceed. The judgment demonstrates that this was the basis on which the judge approached his discretion.
Conduct and disability
    1. The defendants complain that the judge directed himself that their conduct was “irrelevant”. They say that it is a relevant matter as it is one of the factors that the court is expressly directed to consider. While that is right, not all factors will come into play in every case.
    2. When addressing sub-section (c), the judge might have said that he had in mind that the defendants were not to be criticised in any way. However, the wording of the sub-section suggests that this is a neutral factor, or at best one of limited weight. Describing this factor as “irrelevant” on the facts of this case cannot be said to be a material error such as invalidates the judge’s exercise of discretion.
    3. The judge was wrong to suggest that there was any period during which the deceased or the claimant was under a disability within the meaning of sub-section (d). This sub-section is directed towards incapacity to litigate rather than more general illness or infirmity. That did not arise here. The judge said this:
“Looking at (d), the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action, that must at this stage relate to the deceased, and he became increasingly poorly and incapacitated from 2008. If it relates to the claimant personally, she clearly was a devoted wife and much more concerned with her husband’s ill-health and his decline rather than going to see lawyers.”
    1. Although these matters did not properly fall within sub-section (d), they were relevant considerations. In those circumstances, as in Yates v Thakeham Tiles Limited [1995] P.I.Q.R. P135, the judge’s misconstruction of sub-paragraph (d) did not affect the outcome and does not justify setting his decision aside.
Delay once the deceased and/or claimant were aware of their right to bring a claim
    1. The judge dealt with sub-section (e) by referring back to what he had said when considering sub-section (a). The defendants complain that this is a separate consideration. Sub-section (a) deals with the length of and reasons for the delay and sub-section (e) deals with the extent to which a claimant has acted reasonably and promptly once aware of the possibility of bringing a claim. Mr Turton argues the judge had not in fact dealt with sub-section (e) because he had not addressed the fact that the deceased was advised to consult solicitors in 2008 or to acknowledge that the deceased and the claimant had chosen to delay despite being advised to seek legal advice.
    2. There is some force in this. However, the judge’s view as to the extent to which the deceased and the claimant had acted promptly and reasonably is apparent from the judgment. In my view, the judge ought to have expressly acknowledged that the deceased had been advised to seek legal advice in 2008. However, this was clearly in his mind since he had referred to the letter in which that advice was given.
    3. It has to be said that the deceased was not prompt in seeking advice. However, the judge had determined that he acted reasonably. His finding about the claimant was that she had instructed solicitors a month after the inquest and that thereafter the matter was in the hands of the solicitors. He was entitled then to find that she had acted promptly and reasonably.
    4. Using McCombe LJ’s analogy, if the judge’s treatment of sub-section (e) represents a ‘shaky brick’, it is certainly not an unsound foundation stone.
The seeking of legal or medical advice
    1. Similar points may be made in relation to sub-section (f). While the judge could have spelled out his analysis of this factor more clearly, it is clear when his judgment is read as a whole that, having heard the claimant’s evidence, the judge accepted her explanations for not seeking legal advice at an earlier stage. In human terms, he thought their approach was understandable and reasonable and therefore should not count against them.
The exercise of discretion
  1. The foundation stones on which the judge exercised his discretion were those set out at paragraph 22 above. He arrived at findings that the delay was understandable and excusable, and that the defendant’s position had not materially changed since 2008. I have concluded that those findings were properly open to the judge.
  2. It is true that the judge might have expressed himself more clearly in relation to other matters. However, I consider that the judgment adequately deals with the relevant considerations. Having found that the delay on the claimant’s side after the date of knowledge did not affect the strength of the defence and that it was excusable delay, it cannot realistically be argued that the judge was wrong to conclude that it was equitable to allow the action to proceed.
  3. In the circumstances, I find that it would be inappropriate to interfere with the judge’s exercise of the broad and unfettered discretion under s.33.
  4. It follows that this appeal will be dismissed.