THE KIMATHI DECISION 5: REVIEW OF SECTION 33 PRINCIPLES: WHY LIMITATION WASN’T HEARD FIRST

August 16, 2018 · by · in Civil evidence, Civil Procedure, Limitation

This is the fifth in the series that looks at the decision of Mr Justice Stewart in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB).  The judgment contains a useful review and survey of Section 33 and recent case law.  Here we look at that review.  The next post on the case will look at the application of those principles to this case.

 

THE EARLIER DECISION REFUSING THE DEFENDANT’S APPLICATION FOR LIMITATION TO BE HEARD AS A PRELIMINARY ISSUE

Given that the trial took almost two years of court time and the claimant lost on limitation it is worthwhile reviewing the earlier judgment refusing the defendant’s application that limitation be heard as a preliminary issue,Kimathi & Ors v Foreign & Commonwealth Office [2016] EWHC 600 (QB).

THE APPLICATION

The defendant’s application was made relatively late in the proceedings. The case had already been costs budgeted and timetabled to trial.  The decision not to order a split trial was done, primarily, applying the overriding objective. The judge noted:-

    1. “…  the most important rules are:
  • The overriding objective: rule 1.1(1), (2)(b), (c), (d) and (e).
  • Rule 1.4: Court’s duty to manage cases. Rule 1.4(1), (2)(c) and (d).
  • The Court’s general powers of management Rule 3.1(1), (2)(i) and (j).”

It is a useful judgment in terms of examination of the authorities and principles relating to a split trial generally.

 THE JUDGMENT ON A SPLIT TRIAL
The judge held that certain issues relating to the date of limitation should be heard as a preliminary issue (after the claimants had given evidence). However the Section 33 issue should not be heard as a preliminary issue.
    1. Tenthly there is the question of overall justice. This must be considered in the light of the overriding objective and other rules to which I have made reference. It also has to be decided in the context of the guidance given by the Court of Appeal in the KR case. Various matters here arise and I deal with them:
(a) From the first hearing before Senior Master Whittaker in July 2013 the Claimants’ case has been that limitation be dealt with at the conclusion of the evidence. It was not until November 2015 that the Defendant applied for limitation to be tried as a preliminary issue. Nevertheless, it consistently indicated from early 2014 onwards that it was likely to ask for a preliminary issue trial, but would only be able properly to decide after pleadings and disclosure were sufficiently advanced. The Defendant says that it has become clearer as the problems have emerged in obtaining documentation, seeing the Claimants’ pleadings and evidence and difficulties in obtaining their own witness evidence, that its view that limitation should be dealt with preliminarily has been reinforced.
(b) If limitation is decided in the Claimants’ favour then there will be no saving; perhaps there would be a moderate increase in cost and delay.
(c) If limitation is determined in the Defendant’s favour then there may be an appeal. Potentially this could hold up the litigation for 2 – 3 years if the matter fell to be decided by the Supreme Court. This is only a risk, but it is a realistic risk which cannot be discounted. Normally it would not be a factor. This case is, however, different.
(d) In the event of an appeal the case may well have to resume 2 – 3 years after the test Claimants had given evidence. This would be extremely unsatisfactory, to say the least. Further, the rest of the evidence, including that of the doctors, corroborative witnesses to be called on behalf of the Claimants and such evidence as the Defendant has (they have so far served 18 statements of witnesses of fact and suggest they may have up to 50 witnesses) would probably be compromised. The vast majority of the lay witnesses for both sides are very elderly and may not be capable of giving evidence in 3 – 4 years’ time. If the hearing did resume and finished within a further 9 – 12 months of a Supreme Court decision on limitation then, given the numerous other legal issues in the case, there could well be further appeals with the potential that the litigation would not finish until some 5 – 6 years hence. [Indeed it is possible that, because of the further lapse of time, that limitation would be raised afresh because of death/incapacity of witnesses.] If the Claimants were ultimately successful they would have been kept out of their money and many are likely to have died before receiving it. I am told that during the course of this litigation 1500 of the cohort represented by the Lead solicitors (about 7%) has died. Of the 40 test Claimants, 3 have died.
(e) An additional risk in proceeding effectively part heard after hearing the evidence of the test Claimants is that I would be tied to the case potentially for some 3 years longer than if the case was heard as a whole. If for any reason, e.g. ill health or death, I was not able to continue then that would have a disastrous effect on the continuation of the litigation in a resumed trial after a successful appeal. The whole process of selecting test Claimants, having them medically examined in Kenya and giving evidence would have to be gone through again. This has been a difficult and time-consuming process so far.
(f) Even if the test Claimants’ evidence was not heard in the summer (contrary to everybody’s expectation and agreement), so that the case was not part heard, in the event of a successful appeal in 2 – 3 years time, it is likely that a number of the test Claimants would not be then able to give evidence. Again the process of selection, medical examination and evidence would then have to be gone through.
(g) Nor would it be possible to hear section 33 as a preliminary point and, if the Defendant succeeded, to continue with the trial. By definition I would have determined that a fair trial could not take place.
(h) It has to be accepted that if section 33 is not heard as a preliminary issue then, at the end of a full trial, I need to address whether a fair trial has been possible. If I determine this then it seems illogical then to decide that, had it been possible, the Claimants would have succeeded. Although there is the theoretical possibility of appeal by the Claimants with a consequential requirement to make findings afresh on other issues, this possibility is much more remote.
(i) The Defendant submits that it cannot be right that because the Claimants started late and are very old, that that should militate against hearing s33 as a preliminary issue. I see some logic in this but have to look at the overriding objective as a whole.
  1. This is an extremely difficult decision. I have had due regard to the authorities and in particular the strong guidance given by the Court of Appeal in KR. Assessing the various risks depends on a substantial amount of crystal ball gazing. I have not lost sight of the fact that an early ruling in section 33 (particularly if in the Claimant’s favour) may result in negotiations and settlement. Nevertheless I have come to the clear conclusion that it would not be in accordance with the overriding objective and would not be just in the particular circumstances of this highly unusual case for me to try limitation as a preliminary issue. I have balanced the pros and cons of all the relevant factors put before me as best as I can at this stage of the litigation. I will in due course in the litigation remind myself very strongly of the guidance in KR, paragraph 74(vii) set out earlier in this judgment.

THE JUDGMENT AT TRIAL REVIEWING SECTION 33

In the judgment given after the trial the judge reviewed the principles relating to Section 33.  This is one of those “cut and out keep” parts of a judgment that will be useful to review if you are involved in a Section 33 application,particularly in relation to “non-accident” claims such as clinical negligence or abuse claims.

Section 33 Limitation Act 1980
    1. S33 of the Limitation Act 1980 (“the Limitation Act”) provides, so far as material:
“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a) the provisions of section 11 … of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
…
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11……….;

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

Application of Section 33 in the present case
    1. Section 11 of the Limitation Act 1980 is applicable where damages are claimed for negligence, nuisance or breach of duty and “consist of or include damages in respect of personal injuries…”. By section 38 “”Personal injuries” includes any disease and any impairment of a person’s physical or mental condition…”. In the Fear Judgment I ruled that fear alone did not amount to personal injury.
    2. In respect of claims arising after 4 June 1954, subject to the section 33 discretion, all the personal injury claims were statute-barred three years after they were alleged to have occurred. The only exception to this was that, for those TCs who were minors, who do not include TC34, the claims were not barred until they achieved majority, some of them in the 1960s.
The Court’s approach in determining section 33 discretion
    1. In AB v Ministry of Defence[57] the Court of Appeal said this:
“96. 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…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.”
    1. How is the Court to determine the section 33 issue when it has heard all the evidence on the substantive issues? In B v Nugent Care Society and others[58] the Court of Appeal at [12] reproduced the starting points set out at [74] of the Bryn Alyn case, having said at [11] that they were still relevant, subject to amendment in the light of A v Hoare.[59] The most significant starting points at this stage are:

“(iii) Depending on the issues and the nature of the evidence going to them, the longer the delay the more likely, and the greater, the prejudice to the defendant.

(iv) Where a judge is minded to grant a long “extension” he should take meticulous care in giving reasons for doing so.

(v) A judge should not reach a decision effectively concluding the matter on the strength of any one of the circumstances specified in section 33(3), or on one of any other circumstances relevant to his decision, or without regard to all the issues in the case. He should conduct the balancing exercise at the end of his analysis of all the relevant circumstances and with regard to all the issues, taking them all into account.

(vii) Where a judge determines the section 33 issue along with the substantive issues in the case, he should take care not to determine the substantive issues, including liability, causation and quantum, before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. Much of such evidence, by reason of the lapse of time, may have been incapable of being adequately tested or contradicted before him. To rely on his findings on those issues to assess the cogency of the evidence for the purpose of the limitation exercise would put the cart before the horse. Put another way, it would effectively require a defendant to prove a negative, namely, that the judge could not have found against him on one or more of the substantive issues if he had tried the matter earlier and without the evidential disadvantages resulting from delay.

(viii) Where a judge has assessed the likely cogency of the available evidence, that is, before finding either way on the substantive issues in the case, he should keep in mind in balancing the respective prejudice to the parties that the more cogent the Claimant’s case the greater the prejudice to the defendant in depriving him of the benefit of the limitation period. As Parker LJ showed in Hartley v. Birmingham City District Council [1992] 1 WLR 968, 979 G-H, such a finding is usually neutral on the balance of prejudice:

‘…in all, or nearly all, cases the prejudice to the plaintiff by the operation of the relevant limitation provision and the prejudice which would result to the defendant if the relevant provision were disapplied will be equal and opposite. The stronger the plaintiff’s case the greater is the prejudice to him from the operation of the provision and the greater will be the prejudice to the defendant if the provision is disapplied …as the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the Defendant’s ability to defend.”
The Court of Appeal in B continued:
“We should not leave these remarks of Parker LJ without noting that they were qualified in Nash v Eli Lilly & Co… where this Court said that there could be instances of weak claims where disapplication of the limitation provision could cause Defendant’s considerable prejudice in putting them to the trouble and expense of successfully defending them and then not being able recover costs against impecunious Claimants.”
    1. The Court in B endorsed the previous comments about the order in which the judge should determine the issues. However, at [22]-[25] they clarified the relevance of the cogency of the Claimant’s case including the oral evidence. Dealing with the Hartley case and referring to other authority, the Court continued:
“All he[60] was intending to say was that the prejudice to the defendant of losing a limitation defence is not the relevant prejudice to be addressed. The prejudice to be addressed is that which affects the defendant’s ability to defend. Clearly the strength of the Claimant’s case is relevant…If the action in a case, where liability has been admitted, is commenced a day late but the Defendant is in no way prejudiced in defending the claim, the limitation defence would be a windfall and so as in Hartley the discretion will be exercised in favour of the Claimant…”
The Court later referred to the judgment of Smith LJ in Cain v Francis[61], saying that her formulation was consistent with the Court’s approach when she said at [73]:
“It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the Defendant to meet this claim on its merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the Defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the Defendant and partly because the reasons for the delay (or its length) are not good ones.”
    1. Finally, in B the Court of Appeal said:
“25. In considering the exercise of his or her discretion under section 33 the judge must consider all the circumstances including of course any prejudice to the Defendant. That involves considering what evidence might have been available to the Defendant if a trial had taken place earlier or it had learned of the claim earlier. We accept Mr Faulks’ submission that it is not sufficient for the court simply to hear the evidence of the Claimant, and indeed any other evidence now available, and to decide the issue of limitation on the basis of it, without considering what evidence would or might have been available at an earlier stage…”[62]
    1. A more recent authority which is entirely consistent with the above principles is Bowen and the Scouts Association v JL[63]. In that case the Court of Appeal criticised the trial judge on the basis that he had not taken into account adverse factual findings which he had made against the Claimant. Two short citations deal with this:

i) Burnett LJ (as he then was):

“It is not realistic to shut one’s eyes to findings and conclusions reached following a full trial. It is what is done with them in the context of the substance of the reasons for the limitation decision that matters….”

ii) Sir Ernest Ryder SPT:

“It is simply unreal to fail to appreciate adverse findings and conclusions reached at the end of a trial where limitation is in issue i.e. where it has not been dealt with as a preliminary issue. The correct approach is to adopt an overall assessment of the evidence and the effect of the delay on the same.”
    1. Burnett LJ pointed out[64] that the logical fallacy with which paragraph 21 of B was concerned:
“…was proceeding from a finding on the (necessarily partial) evidence heard that the Claimant should succeed on the merits of the conclusion that it would be equitable to disapply the limitation period. That would be to overlook the possibility that, had the Defendant been in a position to deploy evidence now lost to him, the outcome might have been different.”
    1. Thus, it is apparent:

i) That the legal burden under section 33 rests throughout upon the Claimant.

ii) That I must approach section 33 as guided by the Court of Appeal in B and subsequent authority.

iii) That the issue is whether “It would be equitable to allow the action to proceed.” That is the language of section 33(1). As Burnett LJ said in Bowen:

“18. The language of section 33(1) is clearly discretionary (may direct etc.) but the question for the court is whether it would be equitable to allow the action to proceed. The Court may allow the whole or part of the claim to proceed. But it cannot be doubted that if a judge concluded that it would be equitable to allow the claim, or part of the claim, to proceed having regard to the relative prejudice to the parties, he should do so. The breadth of the discretion comes from the untrammelled evaluation of relevant factors that a judge may take into account, and the weight he gives to each. The factors identified in section 33(3) are all relevant but the decision on whether it is equitable to proceed will be based upon a broad consideration of all the circumstances.”
    1. It is clear from the authorities that:

i) The central question is therefore whether it would be “equitable to allow an action to proceed”, having regard to prejudice to the Claimant and prejudice to the Defendant. Whether a fair trial can still take place is a very important question. So in McDonnell v Walker[65], Waller LJ said

“In Cain v Francis the Court of Appeal allowed the appeal and disapplied the limitation period under s.33 but it is important to stress that the court was not simply applying some rather broad test as to whether a fair trial was still possible. The fact that the defendant could not show any forensic prejudice and that the limitation defence would have been a complete windfall was the key feature”

If a fair trial cannot take place it is very unlikely to be “equitable” for the Defendant to meet the claim. But if a fair trial can take place that is not the end of the matter. The possibility of a fair trial is a necessary but not sufficient condition for the disapplication of the limitation period. In RE v GE[66] McCombe LJ said:

57. Ms Gumbel argues that…..the judge went wrong in failing to put at the centre of his consideration the question whether a fair trial of the claim was possible and in asking whether it was fair for a trial to take place……

58. Having had the benefit of argument on the point, I do not consider that this first ground of appeal is a good one. The question for the court under section 33 is whether it “would be equitable to allow the action to proceed”, notwithstanding the expiry of the primary limitation period. That question is to be answered by having regard to all the circumstances of the case, including in particular the factors identified in section 33(3).

59. Whether it is “equitable” to allow an action to proceed is no different a question… from asking whether it is fair in all the circumstances for the trial to take place …. That question can only be answered by reference (as the section says expressly) to “all the circumstances”, including the particular factors picked out in the Act. No factor, as it seems to me, can be given a priori importance; all are potentially important. However, the importance of each of those statutory factors and the importance of other factors (specific to the case) outside the ones spelled out in section 33(3) will vary in intensity from case to case. One of the factors will usually be the one identified by the judge in paragraph 29, by reference to the judgment of Bingham MR in Dobbie v Medway HA [1994] 1 WLR 1234, 1238D-E, namely that statutory limitation rules are

“…no doubt designed in part to encourage potential claimants to prosecute their claims with reasonable expedition…but they are also based on the belief that a time comes when, for better or worse, a defendant should be effectively relieved from the risk of having to resist stale claims”.

Nor must it be forgotten that one relevant factor is surely the very existence of the limitation period which Parliament has decided is usually appropriate.”

Lewison LJ agreed with McCombe LJ and said:

“75. ……Organisations maintain document destruction policies fashioned according to limitation periods….

78. Whether a fair trial can still take place is undoubtedly a very important question. However, it seems to me that if a fair trial cannot take place it is very unlikely to be “equitable” to expect the defendant to have to meet the claim. But if a fair trial can take place, that is by no means the end of the matter. In other words, I would regard the possibility of a fair trial as being a necessary but not a sufficient condition for the disapplication of the limitation period. Nor is it the case that in Cain v Francis …the court applied a broad brush test as to whether a fair trial was still possible. That was expressly disavowed by the Court of Appeal in McDonnell v Walker ….at [21]”

ii) The basic question is whether it is fair and just in all circumstances to expect the Defendant to meet the claim on the merits notwithstanding the delay in commencement[67].

iii) Prejudice to the Defendant involves asking whether the Defendant has been disadvantaged in the investigation of the claim and/or the assembly of the evidence in respect of issues of both liability and quantum[68].

    1. Two quotations from A v Hoare[69] are of assistance in this regard. These are:

i) Baroness Hale of Richmond

“60. …A fair trial can be possible long after the event and sometimes the law has no choice. It is even possible to have a fair trial of criminal charges of historic sex abuse. Much will depend upon the circumstances of the particular case.”

ii) Lord Brown of Eaton-under-Heywood

“86. …through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that would be one thing; if, however, a complaint comes out of the blue with no apparent support for it… that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations – see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay.”[70]

    1. In B[71] the Court of Appeal pointed out that Lord Hoffman and Lord Walker had agreed that the paragraphs in which Lord Brown expressed caution were “particularly valuable” and that they agreed with them. This followed the Court saying that A v Hoare had made it easier for claimants in historic sex abuse cases in that (i) it was no longer necessary to establish systemic negligence and (ii) evidence of the claimant that he or she was inhibited by the abuse was now relevant to the discretion whereas previously it was not, adding: “This is an important point because it stresses the broad nature of the discretion and that it does not focus solely on whether there has been prejudice to the defendant.”
A helpful recent summary
    1. In Chief Constable of Greater Manchester Police v Carroll[72] the Master of the Rolls provided a helpful summary of the general principles upon which the Court must act. He said:
“42. 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 BoroughCouncil [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 (12) 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 defend 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. I have already dealt in some detail with principles 1-7. Principle 5 must be at the forefront of the Court’s mind in respect of the evidence as to prejudice relied on by the Defendant. It will be further considered under section 33(3)(b).
    2. I would add one further citation as to principle 6: Lord Wilson in AB v Ministry of Defence[73] said:
“6. The statutes of limitation, which stretch back to 1540, have been in place for two main reasons. One is to protect defendants from being vexed by stale claims. They are Acts of peace…The other is to require claims to be put before the court at a time when the evidence necessary for their fair adjudication is likely to remain available, or, in the words of the preamble to the 1540 Act…, at a time before it becomes “above the Remembrance of any living Man …to…know the perfect Certainty of such Things”.”
    1. Principles 8-11 fall for consideration under section 33(3)(a). Principle 13 is not a matter for me. That leaves principle 12. I shall deal with this briefly later.
Other factors
    1. In having regard to all the circumstances of the case, the Claimants rely on two particular matters:

i) They say that the case involves consideration of conduct that breaches Articles 3, 4, 5 and 8 ECHR, and that to the extent that the UK Government may be responsible for widespread and deliberate breaches of voluntarily assumed international obligations to its own citizens, it is repugnant to public justice that it should seek to prevent a trial. In this regard they rely also upon Article 73 of the UN Charter and the UN Convention against torture, as well as the Forced Labour convention. The submission is that this is more than the resolution of a private dispute, and that any argument that the Claimants have only a limited time to ask the Courts to enforce their international rights is diminished by this analysis.

ii) They say this is group litigation which the Claimants have brought to trial within five years of the first contact between clients and solicitors. Therefore they say that the speed of litigation has been truly remarkable. They accept this does not affect the cogency of the evidence. They submit it affects whether there ought to be a trial in the sense that the Claimants have unquestionably both exerted themselves and succeeded in moving an enormous legal action through its preparatory stages, and to substantive trial, in an impressive period of time.

    1. In response to the first point, the Defendant refers to the AB case in the Court of Appeal. The first instance Judge had relied upon there being a public interest need for the issues to be ventilated. In this regard the Court of Appeal said this:
“110. The Judge also appeared to think that there is a public interest in the claims being tried out. We would agree that there can be said to be a public interest in establishing whether or not appropriate precautions were taken to protect servicemen and also whether servicemen have suffered ill health as a result of service in the tests. No doubt it was in order to investigate the latter that the NRPB studies were commissioned. We accept that there has been no public investigation into the adequacy of the precautions taken. We note that there does not appear to have been a Coroner’s inquest into any veteran’s death which raised these issues. If it were thought that there should be an investigation, an attempt should be made to persuade the governments to order a public enquiry or some other form of investigation. However, we do not think that it is for the Court to form a view that there should be such public investigation and to take that perceived need into account when deciding whether to exercise the section 33 discretion.”[74]
  1. Similar arguments were raised by the Claimants in Mutua. McCombe J considered them in detail and rejected them.[75] The net result is that it is not permissible for me to take such factors into account.
  2. As regards (ii), there has been reasonable speed in getting such a massive case through the litigation process from the time of the case’s inception in 2013. However, I do not regard this of itself to be a relevant factor in the exercise of my discretion.”
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