LIMITATION: SECTION 33 IN A FATAL DISEASE CASE: CASE ALLOWED TO PROCEED AFTER 25 YEAR DELAY
In Pearce & Ors v The Secretary of State for Business, Energy And Industrial Strategy & Ors  EWHC 2009 (QB) Mr Justice Turner considered the principles relating to Section 33 of the Limitation Act 1980 and granted an application where the claim was brought 25 years out of time. This is an important recap of the basic principles relating to Section 33. There are important observations on the relevance of proportionality in a case where all the costs have already been incurred.
“I also struggle to understand how proportionality will normally be relevant in a case, such as this, in which the determination of the issue of the exercise of the court’s discretion to disapply the limitation period has been deferred to be determined after all the evidence in the trial on both liability and quantum has been heard. The costs have, by then, already been incurred.”
“There is a dispiriting profusion of case law on section 33.“
The judge was considering two cases brought in relation to the development of Chronic Bronchitis as a result of working at coke oven works in South Wales. One claim was brought on behalf of George Nicholls who had died twenty years previously. Mr Nicholls had worked at the site from 1968 to 1985.
THE JUDGMENT ON SECTION 33
The judge found that the “limitation clock” had started in 1983. To succeed this claimant had to rely on Section 33.
Mr Nicholls had the relevant knowledge for the purposes of triggering the limitation clock by March 1983. By then, both he and his wife, on her account, were attributing his coughing to exposure to fumes at work. However, on Mrs Nicholls’ case, further, discrete injury was sustained after 1983 until her husband ceased work at the coke works in 1985. So the primary limitation periods started to run, day by day, over the period between 1983 and 1985 and expired, also day by day, from 1986 until exhausted by 1988. Mrs Nicholls is thus constrained to rely upon the power of the court to disapply this period under section 33 of the 1980 Act.
“33 Discretionary exclusion of time limit for actions in respect of personal injuries or death
(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.”
There is a dispiriting profusion of case law on section 33. Fortunately, this court now has the benefit of the decision of Carroll v Chief Constable of Greater Manchester Police  4 WLR 32 in whihttps://www.bailii.org/ew/cases/EWHC/QB/2018/2009.htmlch Sir Terence Etherton MR set out at paragraph 42 a summary of the general principles applicable to s.33 applications:
“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.
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 consideration by the judge.
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. 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 chances 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.
5. Furthermore, while the ultimate burden is on the claimant to show that it would be equitable 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. 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.
6. The prospects of a fair trial are important. 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. 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.
7. Subject to considerations of proportionality (as outlined in para 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.
8. It is the period after the expiry of the limitation period which is referred to in sub-sections 33(3)(a) and (b) and carries particular weight. 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. 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.
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. 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.
11. In the context of reasons for delay, it is relevant to consider under subsection 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.
12. Proportionality is material to the exercise of the discretion. In that context, it may be relevant that the claim has only a thin prospect of success, that the claim is modest in financial terms so as to give rise to disproportionate legal costs, that the claimant would have a clear case against his or her solicitors, and, in a personal injury case, the extent and degree of damage to the claimant’s health, enjoyment of life and employability.
a) the length of, and the reasons for, the delay on the part of the plaintiff
The delay in this case is in the region of 25 years. When cross-examined about why a claim had not been brought earlier, Mrs Nicholls agreed with the suggestion put to her by counsel that until September 2000, when her solicitor added the words “chronic bronchitis” to the claims questionnaire, it had never occurred to her that she might have a claim in respect of CB and nor had it occurred to her husband at any time before his death. Thereafter, Mrs Nicholls was very much in the hands of her solicitors who were grappling with the enormity of the numbers of compensation claims arising from the BCRDL litigation and, subsequently, the Phurnacite litigation. I had the advantage of seeing and hearing how Mrs Nicholls reacted to cross examination and to the experience of giving evidence generally. She was timid and unassertive. I am entirely satisfied that the delay after her husband’s death was not attributable to any conscious decision on her part not to pursue a case which she knew she could bring. The defendant relies on the fact that Mr Nicholls, having instructed HJ, brought a noise induced hearing loss claim in 1992 which resulted in his receiving compensation in the sum of £1,284. I attach little weight to this. Industrial disease claims are often catalysed by information disseminated by a trades union or by word of mouth within the workforce. This is in emphatic contrast to the suggestion that it would have been reasonable to expect either Mr Nicholls or his wife to show a greater level of initiative in pursuing a CB claim than in fact they did. My conclusion, therefore, is that the period of delay was very long but was not attributable to matters in respect of which Mr and Mrs Nicholls should fairly be criticised.
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 …
The defendant points to two particular respects in which the evidence is or is likely to be less cogent than if the claim had been brought in time. Firstly, Mr Nicholls would have been able to give evidence about his alleged symptoms and could have been challenged on this and on the reasons for his infrequent visits to his doctor. Secondly, the East Glamorgan Hospital records were destroyed eight years after his death in accordance with its policy. The particular relevance of these destroyed records relates to the possibility of shedding further light on the circumstances surrounding the 1983 X-ray and the chance that they would contain greater detail about the history set out in the letter of 26 September 1997 to Mr Nicholls’ GP referring to his dry cough.
I consider that the defendant is correct to assert that the evidence in the case is likely to be less cogent than it would have been if Mr Nicholls had been alive to give evidence. It is, however, a matter of speculation as to whether his hypothetical contribution would have enhanced or diminished the strength of the defendant’s case.
It is also relevant that the question as to whether or not Mr Nicholls had a productive cough which fulfilled the agreed diagnostic criteria does not depend upon the recollection of a single event such as a road traffic accident in respect of which individual memories are more likely to fade very significantly over time. Mrs Nicholls’ evidence in this regard relates to salient medical signs or complaints of symptoms alleged to have stretched over many years. Her evidence is likely to have been less cogent than it would have been if given within the context of a claim brought within the primary limitation period but the extent of the evidential degradation is significantly less than it would have been in respect of an acute as opposed to a chronic condition.
With respect to the controversial reference to “chronic bronchitis” on the radiography report I am prepared to assume, in the defendant’s favour, that this was a rogue entry based on a misconception held by the author that CB can be detected on X-ray films.
The absence of the contemporaneous hospital notes upon which the letter of 26 September 1997 was drafted does render the evidence in the case less cogent to the extent that it may have contained extra detail not set out in the letter and that such detail would have related to the history of Mr Nicholls’ coughing. Once again, however, it is a matter of speculation as to whether the notes would been prejudicial to the claimant or to the defendant or to neither.
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
Although the defendant has been criticised for not taking steps to preserve the hospital records after Mrs Nicholls made her ill-fated BCRDL claim, I am satisfied that this is a counsel of perfection. Indeed it would have been open to HJ to seek to preserve the records at this time and so the allegation is something of a double edged sword.
d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action
This consideration does not arise on the facts of this case.
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
I accept that Mr Nicholls never knew that he could bring a claim for damages in respect of his alleged CB and that Mrs Nicholls found out in 2000 following which the pace of the presentation of her claim was determined by the progress of the successive multiparty claims which unfolded thereafter. I am unable to categorise her actions as being unreasonable or lacking promptness.
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
Mr Nicholls did not obtain medical or legal advice directed towards bringing a claim for CB. It was not until after HJ had made contact with Mrs Nicholls that, eventually, medical and expert advice was commissioned.
The defendant raises the additional argument that the potential value of Mrs Nicholls’ claim is disproportionately low when compared to the costs involved in litigating it. I am not impressed by this contention. As the claimants rightly point out, the Court, when deciding whether to make a GLO, had to consider the issue of proportionality. A key purpose of a GLO, as recognised by the Final Access to Justice Report (July 1996), quoted in the White Book at 19.10.0 (p.657) is to “provide access to justice where large numbers of people have been affected by another’s conduct, but individual loss is so small that it makes an individual action economically unviable.”
I also struggle to understand how proportionality will normally be relevant in a case, such as this, in which the determination of the issue of the exercise of the court’s discretion to disapply the limitation period has been deferred to be determined after all the evidence in the trial on both liability and quantum has been heard. The costs have, by then, already been incurred.
Applying the statutory test and with the guidance in Carroll firmly in mind, I am satisfied that the claimant has discharged the burden of showing that her prejudice would outweigh that to the defendant if the limitation period were not disapplied. In particular, I am satisfied, despite some evidential deterioration over the years, that the passage of time has not significantly diminished the defendant’s ability to fight this claim on either liability or quantum.”