SECTION 33 APPLICATION ALLOWED IN ACTION ISSUED 4 YEARS AFTER LIMITATION EXPIRED

In Tyers v Aegis Defence Services (BVI) Ltd & Ors [2023] EWHC 896 (KB) Mr Justice Martin Spencer allowed an application under Section 33 of the Limitation Act 1980 in a case where the proceedings were issued 7 years after the accident and 4 years after the expiry of the limitation period.  The judgment contains a detailed consideration of the Section 33 criteria.

“whilst I consider that it was highly unfortunate that the defendant did not receive notification of the claim until service of the proceedings on 10th August 2020, more than 8 years after the accident, the claimant has persuaded me that this is a case where it remains possible for there to be a fair trial and in which I should exercise my discretion to disapply the limitation period, and, accordingly, in my judgment, the claim of Mrs Tyers should be permitted to proceed.”

THE CASE

The claimant issued proceedings on her own behalf, under the Fatal Accidents Act 1976, on behalf of a minor dependant and as executrix of the estate of her deceased husband. The action that caused the death occurred in May 2012.  Proceedings were issued on the 29th May 2019, 7 years after the accident and 4 years after the expiry of the limitation period if it ran from the date of the accident.  There was an issue as to the date of the limitation, however regardless of the date of limitation the adult claimant required an order under Section 33 of the Limitation Act 1980.  The minor claimant, however, was subject to a different limitation period.  The limitation period would not start to run until her 18th birthday and she did not require an order under Section 33.

THE JUDGMENT ON LIMITATION

The judge did not accept the claimant’s argument that the limitation period ran from a date later than the date of death.

Discussion

Date of Knowledge

59. The starting point for the Claimant’s date of knowledge is section 14 of the Limitation Act 1980 (see paragraph 34 above).  The court needs to consider when the Claimant first had knowledge that:

(a)  that the injury in question was significant; and

(b)  that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c)  the identity of the defendant;

taking into consideration that knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

60. As Mr Blakesley submitted, it would be an unusual case where, in the case of a fatal accident, the date of knowledge is later than the date of death.  Clearly, Mrs Tyers knew that the injury was significant immediately.  Furthermore, she knew that this was an accident which had occurred at work, arising from her husband’s working conditions, and in particular the fact that a gate fell and crushed the deceased: so much was imparted to her by Jo Anthoine soon after the accident when Mrs Tyers was informed what had happened.  The identity of the Defendant has never been hidden: Mrs Tyers has known at all material time that Aegis were her husband’s employers (or the people to whim her husband was contracted).

61. The only factor which could conceivably prevent the limitation period from running from the date of death would be if it could be said that Mrs Tyers did not know that the injury to her husband “was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty.”  However, the authorities show that the bar for satisfying this test is set low.  As Mr Blakesley submitted, the issue is effectively decided by the decision of the CA in Dobbie v Medway Health Authority [1994] 1 WLR 1234 where Sir Thomas Bingham MR said at 1240G:-

“Time starts to run against a claimant when he knows that the personal injury on which he founds his claim is capable of being attributed to something done or not done by the defendant …. This condition is not satisfied where a man knows that he has a disabling cough or shortness of breath but does not know that his injured condition has anything to do with his working conditions. It is satisfied when he knows his injured condition is capable of being attributed to his working conditions, even though he has no inkling that his employer may have been at fault”.

62. In my judgment, on the above basis, the primary limitation period in this case started to run from the date of death and expired on 29 May 2015.  So far as Ms Crowther’s argument that Mr Tyers “only had vague and general knowledge of the accident circumstances until the AIP report was released to her in September 2013, she did not know enough of the facts to establish a complaint against Aegis before the AIP was released”, this does not, with respect to her, encapsulate the test to be applied by the court.  The purpose of the three year limitation period is to give a potential Claimant the time to carry out the necessary investigations and to establish the details of the accident circumstances in order to draft a protocol Letter of Claim or, if necessary, Particulars of Claim: the detailed knowledge which was provided by the AIP report in this case was not the knowledge required for the purposes of sections 12 and 14 of the Limitation Act, but the knowledge required for the drafting of proceedings.  In a sense, the 3 year limitation period achieved the very purpose for which it is provided: it gave the Claimant the time to investigate the matter, obtain the AIP report and then consider that report with her lawyers and decide whether to issue proceedings.  The fact that the Claimant did not in fact instruct and consult the appropriate lawyers does not detract from the basic proposition that she had the necessary knowledge for the purposes of sections 12 and 14.

63. Given my decision above, it is unnecessary for me to decide on whether the Claimant is estopped from relying on a later date of knowledge by reference to the doctrine of “estoppel by convention” but I can indicate that I was persuaded by Mr Blakesley’s arguments (see paragraphs 36 and 37 above) in this regard too.

THE JUDGMENT ON LIMITATION

The judge considered the relevance of the fact that the child’s claim under the Fatal Accidents Act was not statute barred. This was not necessarily a decisive factor.  However after considering the relevant criteria in detail he granted the application under Section 33.

Section 33: the relevance of Georgina’s Claim

64. In her submissions, Ms Crowther was careful to limit her argument as to the relevance of the fact that there will be a trial of Georgina’s claim in any event by reference to the principle of proportionality.  In this regard, cost is a relevant consideration and the addition of Mrs Tyers’ claim will not result in a significant inflation of the costs of the action. However, in my judgment, this is of limited effect on the exercise of discretion under section 33 in this case. If Mrs Tyers’ claim is to proceed, the main effect will be on the quantum of damages and this will be substantial should the claim succeed.

65. What is clear, however, is that the fact that Georgina’s claim is to proceed in any event cannot, by itself, make it fair that there should be a trial in the case of Mrs Tyers’ claim.  In Cain v Francis [2009] QB 754, Smith LJ expressed the basic question to be asked, in considering whether to exercise the discretion to disapply the limitation period, as “whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement.” The effect of section 28 of the Limitation Act 1980 is to extend the limitation period in the case of claimants under a disability whether or not delay in commencement has made it unfair or unjust to expect the defendant to meet the claim on the merits: a form of “statutory fairness” is thus imposed on the proceedings so far as the person under a disability is concerned irrespective of the actual fairness. However, the claimant who is not under a disability does not enjoy that statutory fairness and it is difficult to see how, if it would not be fair and just in all the circumstances to expect the defendant to meet Mrs Tyers’ claim on the merits because of the delay, her claim can be transformed into one which it is fair and just to expect the defendant to meet, not when it is fair and just for the defendant to meet Georgina’s claim in fact, but simply because the statute says so.  As Mr Blakesley submitted (see paragraph 35 above), the effect of section 13(3) is to exclude consideration of the fact that Georgina’s claim remains in when looking at the section 33 considerations in respect of Mrs Tyers.  He further submitted in writing the following with which I agree and which I adopt:

“That affords justice between the parties.  The purpose of the section and of LA80 s.28 (extension of time for those under a disability) is met as the infant dependant, for example, remains (in principle) permitted to bring a claim against the defendant, while the defendant is relieved of the obligation to satisfy a claim brought by an adult who is guilty of significant and/or unexplained delay, but who is rescued by virtue of the fact that she has a dependant whereas an identical but childless claimant would be time-barred.”

Section 33: Exercise of Discretion

66. In my judgment, the starting point in considering whether to exercise my discretion to disapply the limitation period should be, as Ms Crowther submitted, the principles as espoused by the Court of Appeal in Carroll v Chief Constable of Greater Manchester [2017] EWCA Civ 1992 [2018] 4 WLR 32 at paragraph 42, which encapsulates all the relevant authorities including those relied on by Mr Blakesley:

“42 Section 33(3) of the 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 subsections 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, 477E; Horton v Sadler [2007] 1 AC 307, para 9 (approving the Court of Appeal judgments in Firman v Ellis [1978] QB 886); A v Hoare [2008] AC 844, paras 45, 49, 68 and 84; Sayers v Hunters [2013] 1 WLR 1695, para 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’s case,pp 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’s case, p 477E;Adams v Bracknell Forest Borough Council [2005] 1 AC 76, para 55, approving observations in Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128, paras 32 and 33; McGhie v British Telecommunications plc [2005] EWCA Civ 48 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’s case, para 55.

5. Furthermore, while the ultimate burden is on a 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:Burgin v Sheffield City Council[2005] 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: A v Hoare, para 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’s case, p 479A; Robinson’s case, para 32; and Adams’s case, para 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’s case, para 33; Adams’s case, para 55; and A v Hoare, para 50.

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:Cain v Francis[2009] QB 754, para 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’s case, p 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’s case, pp 478H and 479H–480C; Cain’s case, para 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] PIQR P19, para 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’s case, para 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 Metallising Co Ltd[2000] Lloyd’s Rep Med 247.

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:A v Hoare, paras 44–45 and 70.

12. Proportionality is material to the exercise of the discretion:Robinson’s case, paras 32 and 33;Adams’s case, paras 54–55. In that context, it may be relevant that the claim has only a thin prospect of success (McGhie’s case, para 48), that the claim is modest in financial terms so as to give rise to disproportionate legal costs (Robinson’s case, para 33; Adams’s case, para 55); McGhie’s case, para 48), that the claimant would have a clear case against his or her solicitors (Donovan’s case, p 479F), and, in a personal injury case, the extent and degree of damage to the claimant’s health, enjoyment of life and employability (Robinson’s case, para 33; Adams’s case, para 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] QB 1441, para 69; Burgin’s case, para 16.”

67. Applying these principles, and focusing on whether the delay in this case has seriously compromised the ability of the defendant to defend the claim, I take into account, and make findings, as follows:

                 (i)            As Ms Crowther submitted, and as Mr Ignatiev conceded, there is little or no dispute in this case as to the circumstances of the accident to George Tyers and how he came to meet his death.

              (ii)            Immediately after the accident, the defendant carried out a probing investigation which included the taking of relevant witness statements and thus the preservation of the evidence which a court might require.

            (iii)            Although it is true that witnesses have disappeared or become unavailable, and in respect of those witnesses who remain available, their memories will have faded, I consider that this is not a consequence of the delay in this case to any great extent: had proceedings been brought within the three year limitation period, it is unlikely that a trial would have taken place less than about five years after the accident by which time many of the witnesses, particularly those in Iraq, would probably have disappeared or become unavailable in any event, and those witnesses who remain available would have been largely dependent upon the contemporaneous statements they made at the time, as will still be the case.

             (iv)            Although documents were destroyed in flood damage caused to the container in which they were stored, the relevance of those documents is speculative. In any event, given the defendant’s knowledge of the claim and the possibility of contributory proceedings between the defendant and Cameron, the defendant should have taken better care to protect and preserve relevant documents, and I refer to principle 5 in Carroll’s case above and the reference to Hammond’s case.

               (v)            On my assessment of the evidence, the claim on behalf of Mrs Tyers (and Georgina) appears to be a strong one: it is important, of course, for me not to pre-judge the claim which remains to be tried on its merits, but insofar as the merits of the claim are a relevant consideration – which must be the case when the court must assess the effect of the delay on the ability of the defendant to defend the claim – the prejudice to the defendant diminishes as the claim gets stronger. Whilst I do not necessarily subscribe to Ms Crowther’s submission that what the defendant has tried to do in this case is “throw up dust” and I recognise the validity of some of the arguments raised, in the end I do consider that the effect of loss of evidence has been over-stated by the Defendant.

             (vi)            I turn to the reasons for the delay, which are an important consideration. Given Mrs Tyers’ recognition at an early stage that there was fault or negligence involved in the death of her husband, and given her enlistment of professional help including from Mr Sarkin, Mr Bennett and Mr Majid, it is difficult to understand why she did not consider consulting an English solicitor earlier than she did, particularly given that she knew that the defendant was her husband’s effective employer, the contract was governed by English law and her husband had travelled to London to be interviewed for the job.  I consider the explanation lies in her reliance on Ms Anthoine, with whom she clearly had a close and trusting relationship, and her misplaced assumption that all would fall into place with the conclusion of the Iraqi investigation. It is likely that Mrs Tyers was genuinely shocked when led to understand by Ms Anthoine in 2016, when the Iraqi investigation was complete, that they had reached the end of the road, and it is no coincidence that it was shortly after this that she first sought assistance from English lawyers.  I also take into account the effect of the difficulties on Mrs Tyers which she faced: not only the death of her husband but also the death of her father-in-law and her prioritisation of the needs of Georgina for whom she was now the principal breadwinner.  Mrs Tyers, in the circumstances, placed her trust on those around her including her family and those professionals with whom she was in contact, and I find that none of them advised her to consult an English lawyer. As she and her mother-in-law said, it was as if the scales had fallen from their eyes in 2016. In the circumstances, I do not find the delay before the instruction of Leigh Day in October 2016 to be so egregious as to count heavily against the claimant.

          (vii)            As for the delay thereafter, there were, in my judgment, undoubtedly errors on the part of the solicitors and in particular their failure to ensure that the Letter of Claim/Introduction of 17th January 2017 had been received by the defendant: the fact that the address of their registered office in London had changed should have been ascertained. However, I do not consider it right or appropriate to visit upon Mrs Tyers the errors of her solicitors and I refer to principle 10 in Carroll’s case above and the reference to Corbin’s case.  It is worth setting out the relevant part of the judgment of Buxton LJ in Corbin’s case:

“22. The main difficulty about that approach is the emphasis that is placed upon the failings on the part of the defendant’s solicitors, because in his analysis of whether the Claimant had acted diligently, the Judge undoubtedly attributes − and entirely attributes − the actions of the solicitors to the Claimant himself. Unless the Claimant is, as a matter of law, bound by and bears the responsibility for that which is done by his solicitors, that attribution is plainly not right because, on the evidence, Mr Corbin did what a man in his position might be expected to do, which is to go to his solicitors, who are apparently efficient and responsible in this area of work, and left them to get on with it. Unless, as a matter of law, he is bound by the solicitors, that analysis of the Judge, as a matter of fact, is not right.

23. This Court has recently considered the impact in this particular area of limitation of fault on the part of those advising the Claimant. It did that in the case of Das−v− Ganju[1999] LLR Medical, at page 198. I do not run over the facts of that case, save to say that the delay there was to a large part attributable to mistaken advice that had been received by the Claimant. In assessing the effect of that, Sir Christopher Staughton −who gave the leading judgement, quoted a passage in an earlier case of Whitfield −v−North Durham Health Authority [1995] 6 Med LR, and then said this:

“If that passage means that as a matter of law anything done by the lawyers must be visited on the client, it cannot in my view be reconciled with other authority. It appears to have been a concession which the court accepted. The other authority is Thompson −v− Brown [1981] 1 WLR 744 and the speech of Lord Diplock at pages 750 and 752, which I do not set out for fear of lengthening this judgment even further. I would also return to Halford −v− Brookes, where again it is said that it is no reproach to the plaintiff that he has received the wrong legal advice.””

68. Balancing the above factors, whilst I consider that it was highly unfortunate that the defendant did not receive notification of the claim until service of the proceedings on 10th August 2020, more than 8 years after the accident, the claimant has persuaded me that this is a case where it remains possible for there to be a fair trial and in which I should exercise my discretion to disapply the limitation period, and, accordingly, in my judgment, the claim of Mrs Tyers should be permitted to proceed.