SECTION 33 IN AN INDUSTRIAL DEAFNESS CASE: COURT OF APPEAL SAYS NO

We are looking again at the decision in  Carr v Panel Products (Kimpton) Ltd [2018] EWCA Civ 190     This was the first time the Court of Appeal had considered Section 33 of the Limitation Act since the decision in Carroll v Chief Constable of Manchester Police   in December last year. The Court of Appeal upheld the decision not to make an order under Section 33 and stated that, in any event, it would have come to the same decision. These two recent decisions are likely to be presented to the court in most applications under Section 33.

THE CASE

The claimant brought an action alleging hearing loss as a result of exposure to excessive noise at work between 1974 and 1981.  The judge found that the action was brought outside the limitation period. The judge went on to refuse an application under Section 33 of the Limitation Act 1980.

THE DECISION OF THE TRIAL JUDGE

The judge’s decision was summarised in the Court of Appeal judgment.

1. “The judge then considered whether he should exercise his discretion to disapply the limitation period under section 33 of the 1980 Act. He declined to exercise that discretion and addressed in turn each of the (non-exclusive) statutory factors identified in section 33(3).

2. He found that the claim had been issued between one and three years late and that that delay had been unexplained. He considered that the defendant’s audiology evidence would have been more cogent had it been undertaken earlier; he noted that Mr Carr’s expert contended that his audiometry was more accurate than that of Panel’s expert for a number of reasons, some of which would not have been open to him if Panel’s expert had been instructed earlier. The judge considered that, even after Mr Carr clearly knew that his problem might be attributable to his work for Panel, there were delays in instructing the medical expert and in the commencement of proceedings to restore Panel to the register; these delays were unexplained.

3. Relying upon the speech of Lord Oliver of Aylmerton in Donovan v Gwentoys Ltd. [1990] 1 WLR 472, the judge said that he took into account prejudice to Panel both before and after the delay in question, while giving more weight to prejudice accruing during the post-limitation delay period.

4. Looking at the prejudice to Panel overall, the judge pointed to the lack of detailed information that could be presented to Mr Garry, the expert engineer. He noted that the machines were long gone and witnesses were no longer available. The documents as to the deployment of workers on particular tasks (which Mr Carr accepted had once been kept) were no longer available. The judge found that Panel was “left at the mercy of the Claimant’s recollection” (paragraph 30 of the judgment).

5. The judge dismissed the claim accordingly and he did not determine any of the other issues in the case.”

THE DECISION IN THE COURT OF APPEAL

The claimant appealed against the decision under Section 33.  This aspect of the claim was considered by Lord Justice McCombe.

1. 1. “That brings me to the question of the discretion under section 33 of the Act and the criticism of the judge’s decision not to exercise that discretion in Mr Carr’s favour.

   2. Mr Hester makes the overarching submission that the judge failed to exercise his discretion correctly in the light of a number of factors, identified in paragraphs 3 to 10 of the Grounds of Appeal.

   3. Mr Hester immediately acknowledges in his skeleton argument that the court does not lightly interfere with a first instance judge’s decision as to the exercise of discretion. He quotes Smith LJ in AB v Ministry of Defence [2010] EWCA Civ 1317 at paragraph 94 as follows:

“It is axiomatic that this court will not interfere with the exercise of discretion by the judge below unless he has misdirected himself in law, takes an irrelevant factor into account, omitted to consider a relevant factor or otherwise reached a conclusion that is irrational or clearly wrong”.

1. 1. The trial in this case and the judge’s decision antedated the decision of this court in Carroll v Chief Constable of Manchester Police [2017] EWCA Civ 1992, in which Sir Terence Etherton MR drew together the general principles to be derived from the various authorities on this subject in paragraph 42 of his judgment. That paragraph was the subject of detailed submissions before us and will no doubt now form the starting point for any court’s consideration of issues arising under section 33 of the Act. The Master of the Rolls said this:

“42. … 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].

9) 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. 1. While, of course, counsel directed argument to the individual issues pointed up by section 33(3) of the Act and in the Master of the Rolls’ recent judgment, it is clear from that judgment that the court’s discretion is unfettered and requires the matter to be looked at broadly; all the circumstances of the case have to be considered: paragraph 42(1) and (2) of the judgment.

   2. The court has to perform an overall assessment and, in my view, in considering the decision of a trial judge, this court must not assume that each and every factor mentioned by such a judge was treated by him or her, or should be treated by this court, as having had equal weight in the overall assessment. Allowances need to be made for judges who, having heard evidence, produce judgments on such issues, giving to the parties a clear explanation of why one has won and the other has lost, without running the danger of finding that the possible “shakiness” of one or other brick in the wall undermines the overall conclusion, unless, of course, it is a foundation stone that proves to be unsound.

   3. Mr Hester attacks, first, what he says was the failure by the judge to consider prejudice to Mr Carr, presumably owing to the passage of time in conduct of the proceedings and in the potential loss of his claim, although these features were not expressly identified in the grounds or in the skeleton argument. In oral submissions, Mr Hester made clear that he relied on both aspects of prejudice to his client.

   4. The second element of potential prejudice (the potential loss of the claimant’s claim) hardly needs mentioning in any case of this type. That is what limitation issues are about. In my judgment, the issue does not need to be expressly raised by a claimant in pleading or argument; it can be “taken as read”. For the same reason, a judge does not have to mention that point expressly in a judgment on the point to avoid criticism of his evaluation later.

   5. In his oral submissions, Mr Turton argued that the prejudice to a claimant, for the purposes of section 33(1), relates exclusively or at least mainly to the prejudice caused by loss of his or her claim and not to prejudice in the litigation more generally.

   6. I do not think that 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. 1. However, in my judgment, I do not consider that the judge can be faulted on this aspect of the case. This is simply because Mr Carr did not raise, either in his pleadings or in his evidence, any specific issue of prejudice caused to him by the passage of time to meet the burden that was on him in this respect. Indeed, the witness statement said nothing at all as to why any discretion under the Act should be exercised in his favour. When in the course of argument, Mr Hester was asked to direct us to areas in which specific points of prejudice had been advanced on Mr Carr’s behalf either in the documents or in argument, it seemed to me that he could only direct us to other issues raised in his closing submissions at trial (e.g. paragraphs 65 and 67) attacking the elements of prejudice which had been specifically raised not on behalf of Mr Carr but on behalf of Panel.

   2. In the absence of identified elements of litigation prejudice having been raised on the part of a claimant, I do not consider that a judge can be faulted for simply addressing those points that had been advanced by the parties, as the judge seems to have done here.

   3. The relative prejudice suffered by each party in this case permeated the arguments of counsel raised in their helpful written material and oral submissions. Before proceeding further with individual isolated points raised in the grounds of appeal, it seems to me to be convenient to bring out some further general points that were canvassed in argument by both counsel.

   4. In particular, Mr Hester argues with force that much of the prejudice advanced by Panel, as redounding to its disadvantage, would have been inherent even in a claim begun within the limitation period. This is, he says, a feature present in many cases of historic noise induced hearing loss. In this case, he submits that even in an action begun in 2010, the witnesses would have gone as would the machines and the documents. There was really no difference now.

   5. Mr Hester accepted, of course, that, once the primary limitation period was passed, earlier delay can be relevant, as emerges most clearly from the speech of Lord Oliver in Donovan v Gwentoys Ltd. (supra) which was cited by the learned District Judge at paragraph 27 of his judgment. The passage in Lord Oliver’s judgment is as follows:

“The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff’s claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses’ memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within the prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff’s failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant. It is clear from the judge’s judgment that, because sub-paragraphs (a) and (b) of section 33(3) of the Act of 1980 focus particular attention on the time elapsing after expiry of the limitation period, he felt constrained to regard the time which had to been allowed to pass prior to that date as something which had to be left wholly out of account. In my judgment, he was wrong to do so and that necessarily vitiated the exercise of his discretion.”

1. 1. Obviously, however, as appears from paragraph 42(8) of the judgment in Carroll, it is the period after the expiry of the limitation period that carries greater weight than periods after the claimant has “knowledge” for the purposes of section 14(2) or any period prior to that: see Collins v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 717 at [65] per Jackson LJ.

   2. I return now to the further individual grounds of appeal.

   3. In ground 4, Mr Hester argues that the judge failed to take into account the date of which Panel was first notified of the claim. The date was June 2012. On that date Mr Carr’s solicitors sent the letter of claim and Panel’s insurers could be taken to know of the nature of the matters alleged. This might have been only about 2 years from the expiry of the limitation period and thereafter proceedings were begun only a year later in August 2013.

   4. It is true that notification can be of relevance to the exercise of the section 33 discretion and the judge did not specifically mention it in his judgment in this case. However, the question must always be the extent of the relevance in the individual case. Here, it is not clear what it is that Panel was supposed to make out of the notification of the claim. The insurers had no materials against which to gauge the strength or otherwise of Mr Carr’s claim; that could only begin to emerge once proceedings began, when Mr Carr’s statement was served and the expert evidence began to be gathered in. As Mr Garry’s first report exposed, Mr Carr’s claim was woefully short of detail, a point to which I return below in considering the possibility of a fair trial of this claim.

   5. On the facts of this case, it does not seem to me that the date of the notification of the claim could have borne any particular relevance in the exercise facing the judge.

   6. In Grounds 5 and 6, Mr Hester argues that the judge erred in taking into account, in Panel’s favour, of a particular feature of the medical evidence. The judge’s point was made in paragraph 25(b) of the judgment as follows:

“(b) The extent of which, having regard to the delay the evidence adduced by the Claimant or Defendant is or is likely to be less cogent than if the action had been brought in time. In that regard there is in my judgment a diminution in the cogency of the medical evidence that has arisen as a result of the period of the delay. The Claimant’s medical expert, Mr Parker, contends that his audiometry (undertaken in 2012) is more accurate than that undertaken on behalf of the Defendant’s expert, Mr Jones (in 2014), for a number of reasons, but for these purposes because it was undertaken closer in time to the alleged exposure to noise. His evidence was that there remains noise induced hearing loss within the audiometry undertaken for Mr Jones, but that its presence is effectively “masked”, chiefly by additional low frequency losses. It follows that on the Claimant’s own case, Mr Jones’ audiometry would have been more cogent had it been undertaken earlier; …”

1. 1. Mr Hester argues that the judge’s point was simply wrong on the evidence. He submits that in a further test (a speech audiogram) conducted by Mr Jones, at the same time as his audiogram showed that there was no difference in Mr Carr’s hearing over the two year period from 2012 to 2014. There was thus no prejudice to Panel in a lack of cogency in Mr Jones’ evidence and the judge should not have taken it into account. Mr Hester also criticises the judge for not bringing this point to the attention of the parties before relying upon it as part of the route to his final decision.

   2. Mr Turton argues that the judge was not wrong in noting that the audiograms conducted by Mr Parker in 2012 and that of Mr Jones in 2014 were different, in that Mr Jones’s first test did not support a diagnosis of noise induced hearing loss. To that extent, the flaws in Mr Jones’s testing emerged in a way which would not have occurred if his testing had been done in 2012. He was to that degree at a disadvantage, even if the speech audiogram manifested no change in Mr Carr’s hearing in the two year period.

   3. Mr Turton accepts that the point had not been adumbrated by the judge before judgment. However, he argues that the case had reached a point where other factors were sufficiently weighty to defeat Mr Carr’s argument that the discretion should be exercised in his favour.

   4. In my judgment, the point raised by the judge here was (at best) of limited validity and clearly it should have been raised by him with the parties and submissions should have been invited upon it. The question remains, which I address below, whether it is a matter that vitiates the judge’s decision to refuse to exercise discretion in favour of Mr Carr.

   5. In Grounds 7 and 8, Mr Hester attacks the judge’s approach to the features of delay and lapse of time, as it affected the relative prejudice to Mar Carr and to Panel.

   6. With regard to delay on Mr Carr’s part, the judge noted his failure to take advice, medical or legal, after he became aware that his hearing loss was attributable to his work (paragraph 25(e)). Indeed, he had already recited (at paragraph 13) that Mr Carr had consciously avoided taking medical advice when his hearing loss became apparent, simply because he did not wish to use hearing aids when only in his early 50s.

   7. The judge also took into account the fact that Mr Carr did not consult solicitors at all until January 2011 when he was solicited by the unexpected advertising “flyer” that arrived at his home (even though he was aware generally of “no win, no fee” arrangements for personal injury cases). Thereafter, there was unexplained delay prior to Mr Parker being consulted in February 2012. There was then a further period of 11 months, noted by the judge, between the receipt of Mr Parker’s medical report and the inception of the proceedings to restore Panel’s name to the Register of Companies. Only then, in late August 2013 (2 ½ years after the first instruction of solicitors) was the claim form in this action issued.

   8. Mr Hester criticises the absence of evidence adduced by Panel as to the prejudice suffered by it as a result of the passage of time in the various periods. The judge was clearly influenced by the overall length of time that had passed since Mr Carr’s period of employment and the loss of witnesses and documentation relating to the precise activities carried out by Mr Carr when in this job.

   9. At paragraph 28 of the judgment, the judge said this:

“28. Mr Hester further submits that the Defendant has not adduced any specific evidence of prejudice, which, he contends, pursuant to “Horton” (above) should be held against the Defendant. However, and bearing in mind that the Claimant’s employment ceased around 30 years prior to the issue of proceedings, I consider that I am entitled to draw the inference that the Defendant has been seriously prejudiced in their ability to enquire about the nature of the Claimant’s employment (which was a roving one within the factory rather than his being assigned to an individual machine or machines), the extent of the Claimant’s use of the machines, the noise levels emitted etc. The fact that the Claimant had to apply restore this company to the register, following it being dissolved in 1986, would tend to suggest on a balance of probabilities, that there have not been other claims, or at least litigated ones. They may have afforded the Defendant the benefit of the knowledge obtained in their investigation. The report of the jointly instructed engineer, Mr Garry, which appears at page 248 of the trial bundle, provides further evidence of prejudice at paragraphs 4.1, 4.2, 4.4, 4.8, 4.14, 5.2, 5.3, and 5.6. The difficulties encountered by Mr Garry in calculating NIL levels impinges not just on the issue of breach of duty, but also upon the very foundation of the medical evidence, with both medical experts agreeing that a diagnosis of noise induced hearing loss cannot be sustained in the present case without an NIL level of 100 dB.”

1. Mr Hester submits that the judge was overplaying the difficulties caused to Panel in the action by the passage of time (pre-limitation period) in the case. However, while noting in this context what the Master of the Rolls said in paragraph 42(6) of his judgment in Carroll, which I have quoted and will not repeat, it seems to me that there was a clear example of the disadvantage to Panel in this respect by what occurred after receipt of Mr Garry’s first report.

2. As I have already noted, Mr Garry’s report of 12 November 2014 brought out a number of difficulties in expressing an opinion about the noise exposure that might have been experienced by Mr Carr in this case. The difficulties arose entirely because of the extremely sketchy description in Mr Carr’s statement (which had been made 4 years earlier) of the machines used at the works and periods in which he had worked on each machine. This resulted in the solicitors going back to their client and obtaining from him some more information tailored to meeting the gaps in his case that had been identified in Mr Garry’s report. This new material was put to Mr Garry, in a letter of 24 November 2014, in the guise of a question under CPR Part 35: “Please confirm whether this tool usage exposed the Claimant to noise levels above the threshold limit of 90db(A), Leq”.

3. As mentioned above, Mr Carr was permitted by the judge to adduce further evidence to supplement his witness statement, in accordance with the information given in the letter of 24 November 2014. There is no criticism of the judge’s decision to allow this further evidence. However, in my judgment, it demonstrated the truth of the judge’s conclusion (at paragraph 30 of the judgment) that, “The delay is such that the Defendant is left at the mercy of the Claimant’s recollection”. It was evidence that Panel could not counter, save by reference to Mr Carr’s general credibility.

4. In ground 9, criticism is levelled at the judge’s perceived failure “to take into account, or consider at all, whether any evidential difficulty in now assessing noise levels was due to a historic failure in breach of duty by the Defendants”.

5. For my part, I cannot find any fault by the judge in this respect. The question of breach of duty (presumably in noise testing and/or record keeping) is entirely speculative. No conceivable criticism can be levelled at Panel in the present circumstances.

6. The final ground of this appeal is ground 10 in which it is submitted that the judge failed to take into account the period that was required to obtain from the Inland Revenue copies of documents evidencing Mr Carr’s periods of employment, as required to be provided to a potential defendant by the Pre-action Protocols. We were told by Mr Hester, without reference to any evidential material before the judge, that this period was from February to July 2011. It is submitted that this partly accounted for the delay which the judge regarded as having been “unexplained”.

7. In my judgment, however, the judge was correct to identify the periods which he did as being unexplained. There was no reason why this inquiry of the Inland Revenue had to hold up the instruction of a medical expert in the period between January 2011 and February 2012. Nor does it explain why there was further delay in initiating proceedings for the restoration of the company’s name to the register and the ultimate issue of proceedings.

8. I have already mentioned above, in relation to grounds 5 and 6 that the judge may have erred in putting into the scales his own point arising out the differences in the audiogram results. I ask myself whether that vitiates his decision as to the exercise or otherwise of the section 33 discretion. I do not think that it does.

9. In my judgment, one must not overemphasise any particular element in the list of criteria set out in section 33(3). Nor is the helpful guidance given by the Master of the Rolls in Carroll to be read as a statute. The essential question, as the Master of the Rolls put it, “is a balance of prejudice and the burden is on the claimant to show that his or her prejudice would outweigh that of the defendant”.

10. It was to be taken as read that Mr Carr would be prejudiced by the loss of his claim if Panel’s limitation defence succeeded. Mr Carr was able to rely on his own testimony, without fear of contradiction by any witness or documents from Panel’s side. This is amply illustrated by the leeway given to Mr Carr to bolster the obvious weaknesses in his own original evidence by expressly dealing with the gaps in his evidence pointed up in Mr Garry’s first report. He had a distinct advantage over Panel in this respect. Short of challenge to Mr Carr in the witness box and some material arising from the expert evidence, Panel could have no idea of the strength or weakness of Mr Carr’ case. The judge was entitled to have regard to the elements of prejudice to Panel which he identified.

11. The claim was a very old one. The judge had disbelieved Mr Carr on the questions of when he first noticed hearing loss (2010- as pleaded- or 2007/8) and when he began to attribute any such loss to his employment. Mr Carr had taken no medical advice and had deliberately refrained from doing so for no better reason than to avoid the possibility of having to use hearing aids at a relatively young age. He did nothing about the matter until solicited to make a claim against his former employer.

12. The judge correctly identified the periods of unexplained delay in the pursuit of the claim from January 2011 until August 2013. He correctly found that Panel’s own conduct could not be subject to criticism.

13. In my judgment, the judge correctly took into account the various factors which he identified, with the possible omission of the point arising out of the audiometry which he should have canvassed with counsel before deploying it as part of his decision. However, as Mr Turton submits, the other material upon which the judge relied for his ultimate decision demonstrated that he was fully entitled to decide not to exercise his discretion in Mr Carr’s favour.

14. In my judgment, on overall consideration of the judge’s decision, I do not consider that he went outside the bounds of his reasonable discretion in the matter.

15. If and in so far as any criticism can by properly levelled at the judge’s decision, I consider that this court could properly re-make the section 33 decision and should reach the same conclusion as did the judge. In my judgment, the cumulative features of this case to which I have already referred in this judgment, excluding the factor relating to the audiometry results, added in by the judge of his own initiative, amply justified his conclusion not to exercise discretion in Mr Carr’s favour. My reasons for so holding appear from what I have said above.

16. In a case such as the present, I would add into the scales the question of proportionality in permitting this very old, low-level claim to proceed further: see paragraph 42(12) of the Master of the Rolls’ judgment in Carroll. The claim has already given rise to costs far in excess of what could conceivably be justified in pursuit of a claim for £7,000.

17. Mr Hester argued that this was not a case in which limitation was decided as a preliminary issue and all the costs had been expended by the end of the trial. The judge, therefore, had no reason to bring “proportionality” into the limitation equation. He further argued that we should not do so either, if we reached the conclusion that the judge had reached a decision to which he had not been entitled to come in the exercise of his discretion and if we had to exercise the discretion afresh.

18. In my judgment, in exercising any discretion of our own, I consider that it would be very material that, if we were to reverse the judge’s decision on the limitation point, (as was common ground) the case would have to go back to the County Court for further consideration and very possibly for the hearing afresh of the evidence and submissions relating to at least some of the factual, medical and engineering issues. It is as though we were considering the limitation points as a preliminary issue. One factor for our consideration, therefore, would be the prospect of further costs being expended in pursuit of and in defence to this low level claim, which has been pursued far from actively by Mr Carr in the period since he became aware of his hearing loss and since he became aware that it was attributable to his employment with Panel.

19. I have found that the judge was entitled to reach the conclusions that he did and that it is not necessary, therefore, for us to remake the decision in the exercise of our own discretion. However, if it had been so necessary, I would also decline to allow the claim to proceed outside the primary limitation period.”