PERSONAL INJURY POINTS 10: WAS THIS CLAIM STATUTE BARRED?IF SO SHOULD THE COURT EXERCISE ITS DISCRETION UNDER SECTION 33 OF THE LIMITATION ACT 1980?
Here we look at a decision in relation to limitation. The trial judge had to determine whether the claimant’s action was statute barred. If it was she then had to consider whether it was appropriate to exercise the court’s discretion…
SECTION 33 APPLICATION IN CLINICAL NEGLIGENCE CASE: THE SINS OF THE SOLICITORS WERE NOT VISITED UPON THE CLAIMANT: ACTION ALLOWED TO PROCEED WHEN IT WAS 5 1/2 YEARS OUT OF TIME
We looked at the judgment in Shaw v Maguire (Re Preliminary Issues) [2023] EWHC 2155 (KB) in an earlier post where Master Cook held that the court had a discretion under Section 33 of the Limitation Act 1980 in a fatal…
FATAL ACCIDENTS AND LIMITATION: THERE IS NO BAR TO SECTION 33 BEING USED IF THE LIMITATION PERIOD EXPIRED PRIOR TO DECEASED PERSON’S DEATH
In Shaw v Maguire (Re Preliminary Issues) [2023] EWHC 2155 (KB) Master Cook considered an issue relating to limitation, Section 33 and fatal accident claims. Can a claimant rely on Section 33 in circumstances where the limitation period had expired…
A CLAIMANT WHO OBTAINS AN ORDER UNDER SECTION 33 IS “SUCCESSFUL”: COSTS, CONDUCT AND INTERIM PAYMENTS ON ACCOUNT OF COSTS CONSIDERED
In Aderounmu v Colvin (Costs) [2022] EWHC 637 (QB) Master David Cook made an order for costs in favour of a claimant who had succeeded on a preliminary issue. A discount was made because certain aspects of the case had…
LIMITATION, SEXUAL ABUSE AND THE SECTION 33 DISCRETION: A FAIR TRIAL WAS NOT POSSIBLE AND CLAIMANTS’ ACTION DISMISSED
The previous post looked at the decision in TVZ & Ors v Manchester City Football Club [2022] EWHC 7 (QB) in relation to the issue of vicarious liability. However it is important to note that the claimants did not succeed in…
SECTION 33 CONSIDERED IN THE COURT OF APPEAL: TRIAL JUDGE WAS CORRECT TO EXERCISE THEIR DISCRETION
In Blackpool Football Club Ltd v DSN [2021] EWCA Civ 1352 the Court of Appeal considered, and upheld, a decision on Section 33 where the discretion was exercised in favour of the claimant. This was in the context, however, of…
LIMITATION, THE DATE OF KNOWLEDGE AND THE SECTION 33 DISCRETION: THE SINS OF THE LAWYER CANNOT NECESSARILY BE PASSED ONTO THE CLIENT
The judgment of Richard Hermer QC, sitting as a High Court Judge, in Wilkins v University Hospital North Midlands NHS Trust [2021] EWHC 2164 (QB) deals with several important elements of limitation in the context of clinical negligence. Firstly the…
LIMITATION: SECTION 33 CONSIDERED IN THE CONTEXT OF A CLAIM FOR SEXUAL ABUSE: DISCRETION EXERCISED WHEN PROCEEDINGS ISSUED 15 YEARS OUTSIDE THE LIMITATION PERIOD
In AB v Chethams School of Music [2021] EWHC 1419 (QB) Mr Justice Fordham provides a comprehensive review of the principles the court considers when hearing an application under Section 33 of the Limitation Act 1980, particularly in the context…
DIRECT AND VICARIOUS LIABILITY FOR SELF-EMPLOYED MEDICAL PRACTITIONERS WORKING WITHIN A PRACTICE: CLAIMANT SUCCESSFUL IN HER ARGUMENTS
I am grateful to Heather Owen from the Dental Law Partnership for sending me a copy of the decision of HHJ Harrison in Breakingbury -v- Croad (Cardiff County Court 19th April 2021), a copy of which is available here …
SECTION 33 DISCRETION CONSIDERED IN THE CONTEXT OF A SEXUAL ABUSE CLAIM
In SKX v Manchester City Council [2021] EWHC 782 (QB) Mr Justice Cavanagh considered the exercise of the discretion under Section 33 in the context of a claim for sexual abuse. The context was somewhat unusual in that the judge…
LIMITATION AND EXPOSURE TO ASBESTOS: CLAIMANT DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE & ACTION ISSUED WITHIN TIME
In Balls v Reeve & Anor [2021] EWHC 751 (QB) David Pittaway QC (sitting as a Deputy Judge of the High Court) found that the claimant’s date of knowledge was not more than three years prior to issue. THE CASE…
UNSUCCESSFUL APPEAL AGAINST JUDGE’S DISCRETION TO EXERCISE S.33 DISCRETION IN FAVOUR OF A CLAIMANT: DECISION TODAY
In Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB) Mr Justice Saini dismissed a defendant’s appeal when a trial judge had allowed the claimant’s application under Section 33 of the Limitation Act 1980. This judgment highlights…
THE LIMITATION PERIOD, PERSONAL INJURY AND THE RESTORATION OF A COMPANY: A HIGH COURT DECISION
In Holmes v S & B Concrete Ltd [2020] EWHC 2277 (QB) Mr Justice Martin Spencer considered the issues surrounding the claimant’s argument that the limitation period in a personal injury action was suspended when a company was wound up….
APPEAL JUDGE OVERTURNS REFUSAL TO EXERCISE SECTION 33 DISCRETION: DELAY AND PREJUDICE HIGHLY RELEVANT FACTORS
In Gregory v H J Haynes Ltd [2020] EWHC 911 (Ch) Mr Justice Mann overturned a judge’s decision not to exercise their discretion under Section 33 of the Limitation Act 1980. The claimant had been guilty of culpable delay but…
APPLICATION UNDER SECTION 33 SUCCEEDS MORE THAN 24 YEARS AFTER EXPIRY OF LIMITATION PERIOD
In BXB v Watch Tower And Bible Tract Society of Pennsylvannia & Anor [2020] EWHC 156 (QB) Mr Justice Chamberlain allowed the claimant’s application under Section 33 of the Limitation Act in a case that was issued more than 24…
LIMITATION: THE EXPIRY OF THE LIMITATION PERIOD AND THE USE OF SECTION 33 IN AN EXTREMELY SENSITIVE CASE
I have to admit I have hesitated before writing about the judgment of Mrs Justice Yip in Young v Downey [2019] EWHC 3508 (QB), it is an extremely sensitive case that has already been widely reported. However that part of…
LIMITATION: SECTION 33 APPLICATION SUCCESSFUL – 38 YEARS AFTER THE EVENT COMPLAINED OF
In FZO v Adams & Anor [2018] EWHC 3584 (QB) Mrs Justice Cutts exercised the Section 33 discretion in a case brought 25 – 30 years after the expiry of the applicable limitation period and where the events happened 38…
AN UNSUCCESSFUL ATTEMPT TO APPEAL JUDGE’S EXERCISE OF DISCRETION UNDER S.33 OF THE LIMITATION ACT 1980 IN FAVOUR OF THE CLAIMANT
In HMG3 Ltd & Anor v Dunn [2019] EWHC 882 (QB) Mrs Justice Yip upheld the findings of a Circuit Judge who exercised their discretion under Section 33 in favour of a claimant. THE CASE The claim is brought by…
“DENTON” PRINCIPLES DO NOT APPLY TO SECTION 33 APPLICATIONS: HIGH COURT REJECTS DEFENDANT’S ARGUMENT THAT RELIEF FROM SANCTIONS PRINCIPLES SHOULD BE APPLIED TO LIMITATION ACT
In Ellis v Heart of England NHS Foundation Trust & Ors [2018] EWHC 3505 (Ch) HHJ McKenna (sitting in the High Court) roundly rejected an argument that the court should apply “Denton” type guidance to a claimant’s application to disapply the…
APPEALING A SECTION 33 DECISION – IS HARD TO DO: KIMATHI IN THE COURT OF APPEAL
In refusing permission to appeal in Kimathi & Ors v Foreign & Commonwealth Office [2018] EWCA Civ 2213 the Court of Appeal emphasised the difficulty involved in appealing a discretionary decision made under Section 33 of the Limitation Act 1980. “The…
AVOIDING PROBLEMS WITH LIMITATION AND THE EFFECTIVE USE SECTION 33 (WEBINAR): 7th NOVEMBER 2018
On the 7th November 2018 I am presenting a webinar for APIL on issues in relation to limitation in personal injury case. It looks at the most common causes of difficulty with limitation periods, avoiding problems with limitation and then…
LIMITATION: COURT DOES NOT EXERCISE SECTION 33 IN CASE CONCERNING ALLEGATIONS OF SEXUAL ABUSE: A CAUSE OF ACTION CANNOT BE PUT ON THE SHELF
This is the second post of the day on Section 33. In Murray v Devenish & Ors (Sons of the Sacred Heart of Jesus) [2018] EWHC 1895 (QB) the claimant was not successful. Mr Justice Nicol held that the claimant’s delay…
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 [2018] EWHC 2009 (QB) Mr Justice Turner considered the principles relating to Section 33 of the Limitation Act 1980 and granted an application where…
THE KIMATHI DECISION 5: REVIEW OF SECTION 33 PRINCIPLES: WHY LIMITATION WASN’T HEARD FIRST
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…
THE KIMATHI DECISION 1: PLEADINGS ARE NOT EVIDENCE
The judgment in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB) came after a trial that commenced in May 2016 and lasted until June 2018. It contained a whole range of issues in relation to procedure…
FIFTH BIRTHDAY REVIEW 8: MYTHS ABOUT LIMITATION
This was a series in 2017. Looking at common “myths” or misconceptions in relation to limitation issues, particularly in personal injury cases. MYTHUSTING 1 The limitation period for a personal injury action based on breach of contract is…
“NOTHING SHORT OF A RECOGNISED PSYCHIATRIC INJURY CAN AMOUNT TO A PERSONAL INJURY”: SECTION 33 CANNOT APPLY WHERE THE CLAIMANTS SUFFERED “FEAR”
The judgment of Mr Justice Stewart in Kimathi & Ors v The Foreign and Commonwealth Office [2018] EWHC 1305 (QB) (24 May 2018) considers the question of what is an “injury” for the purpose of Section 33 of the Limitation Act…
THE THREE YEAR LIMITATION PERIOD: HOW DOES ANYONE MISS IT?
This blog has covered numerous cases relating to Section 33 of the Limitation Act 1980. It is worthwhile considering what causes a lawyer to miss a basic three year limitation period. In In Greater Manchester Police v Carroll [2017] EWCA Civ 1992 the…
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…
SECTION 33 DISCRETION UPHELD: ERRORS OF THE LAWYERS NOT NECESSARILY LAID AT THE DOOR OF A CLAIMANT
In Greater Manchester Police v Carroll [2017] EWCA Civ 1992 the Court of Appeal upheld a decision of the circuit judge allowing the claimant’s application under Section 33 of the Limitation Act 1980. The case is interesting because it supports the…
COURT OF APPEAL OVERTURNS SECTION 33 ORDER IN CLINICAL NEGLIGENCE CASE
In The Pennine Acute Hospitals NHS Trust v De Meza [2017] EWCA Civ 1711 the Court of Appeal overturned an order under Section 33 of the Limitation Act 1980. The trial judge found in favour of the claimant. This was held…
SECTION 33 DISCRETION UPHELD ON APPEAL: DEFENDANT ORDERED TO PAY COSTS OF LIMITATION HEARING
In Mossa v Wise [2017] EWHC 2608 (QB) Mrs Justice Yip upheld a Master’s decision under Section 33 of the Limitation Act 1980. The Master’s decision that the defendant pay the costs of the issue of limitation was also upheld. THE…
MYTHS ABOUT LIMITATION 7: A SECTION 33 APPLICATION REQUIRES AN “EXCEPTIONAL INDULGENCE” FROM THE COURT
I still come across arguments that a claimant seeking an order under Section 33 of the Limitation Act 1980 requires an “exceptional indulgence” from the court. This is another myth that has an historical basis, but has been dispatched to…
A SHORT POINT ON CLAIMANTS WITHOUT CAPACITY AND LIMITATION: ONCE A LIMITATION PERIOD STARTS RUNNING IT NEVER STOPS
I was lecturing earlier this week on the issue of disability in personal injury cases. One of the principles of law I was lecturing on proved to be “controversial”, that is it appeared to come as a surprise to many…
SEXUAL ABUSE AND SECTION 33 OF THE LIMITATION ACT: COURT OF APPEAL OVERTURNS JUDGE’S ORDER
In Archbishop Michael George Bowen -v- JL [2017] EWCA Civ 82 the Court of Appeal overturned a judge’s decision under section 33 of the Limitation Act 1980. The judge had exercised the discretion in favour of the claimant. On appeal…
LIMITATION; SEXUAL ABUSE AND THE SECTION 33 DISCRETION: NO SPECIAL RULE JUST BECAUSE THE DEFENDANT WAS MORALLY CULPABLE
In GH -v- The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3337 (QB) HH Judge Gosnell considered the exercise of the Section 33 discretion in a case where there was allegation of sexual abuse that took place in…
LIMITATION AND DATE OF KNOWLEDGE: NO SPECIAL RULE BECAUSE THE CLAIMANT WAS A SOLICITOR
I am grateful to Thomas Jervis of Leigh Day for sending me a copy of the judgment of Mr Justice Goss in Lewin -v- Glaxo Operations UK Limited [2016] EWHC 3331 (QB), an interesting decision in relation to limitation. (A…
SECTION 33: CERTAIN FALLACIES DISPLACED
Each application under s.33 of the Limitation Act 1980 is, of course, unique. It is interesting, however to examine the decision of Her Honour Judge Walden Smith (sitting as a High Court judge) in Sanderson -v- City of Bradford City…
THE DATE OF KNOWLEDGE AND SECTION 33: A CASE THAT CLINICAL AND PROFESSIONAL NEGLIGENCE LAWYERS PROBABLY NEED TO READ
In Rayner -v- Wolferstans & Medway NHS Foundation Trust [2015] EWHC 2957 (QB) Mr Justice Wilkie carried out a comprehensive review of the law relating to date of knowledge and Section 33 of the Limitation Action 1980. It also touches…
DATE OF KNOWLEDGE AND SECTION 33 IN SEXUAL ABUSE CASES: A HIGH COURT DECISION
In A -v- The Trustees of the Watchtower Bible and Tract Society [2015] EWHC 1722 (QB) Mr Justice Globe considered the issue of the date of knowledge under s.14 of the Limitation Act 1980 and also stated that, had it…
SECTION 33 AND “LONG TAIL CLAIMS”: CONSTRUCTIVE KNOWLEDGE AND RELEVANCE OF DELAY BETWEEN THE BREACH AND THE DATE OF KNOWLEDGE
In Collins -v- Secretary of State for Business Innovation and Skills & Ors [2014] EWCA Civ 717 the Court of Appeal considered the appropriate legal test for the date of knowledge and exercise of the section 33 discretion when an…
CAN A STRUCK OUT CLAIMANT ISSUE AGAIN? EXERCISE OF THE SECTION 33 DISCRETION AFTER A FIRST ACTION HAS BEEN DISMISSED.
One of the “open” questions following the Mitchell decision is whether a claimant refused relief from sanctions can issue again. That is an open question (which will be considered at another time). Here we look at the court’s approach to…
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