The courts power to disapply the primary limitation period

When dealing with personal injury claims that fall within LA 1980, s 11, the court has a discretion to disapply the primary limitation period even though a claim has not been brought in time (ie to allow the claim to continue even though more than three years elapsed before it was brought).

This discretion applies to all personal injury claims in negligence, nuisance and breach of duty. It also applies to claims in respect of defective products brought under the Consumer Protection Act 1987 (but those are subject to a further long-stop limitation period of ten years that cannot be set aside).

The court should set limitation aside and let a claim proceed where it would be equitable to do so.

The equitable test

In considering whether it would in fact be equitable to allow an action to proceed, the court is obliged under LA 1980, s 33 to balance the degree to which both the claimant and defendant could be prejudiced by an extension of time. In a case where section 33 arises, the broad merits test will be a prominent consideration. LA 1980, s 33(3) also provides that the court must have regard to all the circumstances of the case, and in particular to the:

• length of, and reasons for, the claimant’s delay (the delay, for these purposes, is the delay between the expiry of the limitation period and the date when the claim was brought)

• extent to which, having regard to that delay, the evidence is likely to be less cogent than it would be if the claim had been brought within the time limit (the relevant period here, again, is the time between the primary limitation period expiring and the claim being brought, not the period between the date of injury and the claim being brought)

• conduct of the defendant after the cause of action arose and the way in which it responded to any reasonable requests from the claimant for information that might assist in establishing a cause of action

• duration of any disability suffered by the claimant after the date from which limitation started to run

• extent to which the claimant acted promptly and reasonably once they knew that the defendant’s act or omission (which gave rise to the injury) might be capable of giving rise to an action for damages

• steps taken by the claimant to obtain medical, legal or other expert advice and the nature of the advice received

The correct approach to section 33 of the Limitation Act 1980

The appeal cases that have considered this area of law have made it plain that the judge’s discretion is a very broad one: it is not limited to unusual or difficult cases, or to cases where exceptional hardship would be caused if the discretion was not exercised in the claimant’s favour.

It is important to appreciate that each case turns on its own facts. However, in Carroll v Chief Constable of Greater Manchester Police at para [42], the Court of Appeal provided the following general principles:

• LA 1980, s 33 requires the judge to look at the matter broadly

• the matters specified in LA 1980, s 33(3) are not intended to place a fetter on the discretion given by LA 1980, s 33(1)

• the test is a balance of prejudice and the burden is on the claimant to show that their prejudice would outweigh that to the defendant

• the burden on the claimant under LA 1980, s 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

• the burden of showing that the evidence 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

• the prospects of a fair trial are important and 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

• subject to considerations of proportionality, the defendant only deserves to have the obligation to pay damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or quantum

• the period after the expiry of the limitation period carries particular weight but the court may also have regard to the period of delay from the time at which LA 1980, s 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

• the reason for the delay is relevant, and if there was an excusable reason, the court may consider it fair and just to allow the claim to proceed despite some unfairness to the defendant. On the other hand, if the reasons for the delay or its length are not good, this may tip the balance against the claimant

• where the delay has been caused by the conduct of the claimant’s advisers rather than the claimant themselves, such a delay may be excusable in the context of LA 1980, s 33

• the court may consider whether knowledge or information was reasonably suppressed by the claimant which, if not suppressed, would have led to the proceedings being issued earlier

• proportionality is material to the exercise of the court’s discretion—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 their solicitors and the extent and degree of damage to the claimant’s health, enjoyment of life and employability

• an appeal court will only interfere with the exercise of a judge’s discretion where the judge has made an error of principle or has exceeded the generous ambit within which a reasonable disagreement is possible

The following comments/principles have been extracted from other key appeal cases:

• the practice of the courts has been regularly to exercise the discretion in favour of the claimant in all cases in which the defendant cannot show that they have been prejudiced by the delay (see Lord Hoffmann in Horton at para [44])

• Lord Bingham described the case of Hartley as a clear case for exercising the discretion under LA 1980, s 33—the claimant had issued proceedings only one day late and the defendant had had early notification of the claim so its ability to defend the case was unaffected

• in considering delays on the claimant’s part, the court is entitled to take into account delay caused by their legal team, as well as any delay for which the claimant themselves are personally responsible.

In Fudge v Hawkins and Holmes Ltd, the claimant was asked by their previous solicitors to obtain full employment records. There then followed a five-year gap before the claimant identified new solicitors. The court found that the negative advice received by the claimant from the previous solicitors was not a satisfactory explanation for the delay as the claimant had not provided them with all possible assistance. The difficulty with remembering the claimant’s work history was compounded by the claimant disposing of the employment records.

The court held that the defendants would suffer significant prejudice if the limitation bar were to be disapplied, since they would be required to investigate and defend a claim based exclusively on the failing memory of the claimant. The lack of contemporaneous records to either corroborate or contradict the claimant’s account meant that a fair trial was unlikely to be possible.

This case provided a useful guide as to the approach the courts will have to delay which, on the face of it, was due to the provision of negative legal advice that the claimant had relied on but the claimant’s own confused and misleading account had itself led to such negative legal advice. This case provides a rare example of a claimant who destroyed important documents that would have proved of great assistance to them in seeking to establish their case

• the prejudice that a claimant will suffer if the limitation period is not disapplied might be reduced where they have a cause of action in negligence against their solicitors but in such circumstances the court should bear in mind that the claimant will still suffer some prejudice, eg they will have to find new solicitors and start new proceedings which will cause a delay

• a limitation defence is sometimes regarded by the courts (and the claimant) as something of a windfall to the defendant, but a defendant is not entitled to argue that the loss of its limitation defence is a head of prejudice that the court should consider

• the appropriate question for the court is whether it is fair and just to expect the defendant to meet the claim on its merits, notwithstanding the delay in commencement

• delay prior to the issue of the second curative action will be relevant when the court is considering exercising its section 33 discretion. The court was not prepared to disapply the limitation period where there was serious prejudice to the defendant by the late notification of the claim and where its value had increased substantially. Horton was distinguished because in that case the defendant had been unable to demonstrate any forensic prejudice caused by the delay

• it is not abuse to re-issue and seek to rely on LA 1980, s 33 where the claim form in a previous set of proceedings was not served validly

• in the event that a claim form is issued in time but not properly served and a LA 1980, s 33 application is made, the court will consider not only the length of delay from issuing outside of the limitation period but also the period between the day after the accident and the Letter of Claim

Date of knowledge (section 14)

It is common for a court when dealing with an application to exercise its discretion under LA 1980, s 33 to also be asked to determine when the primary limitation period expired under LA 1980, s 11 or LA 1980, s 14. The primary limitation period will be determined first and then the court will consider whether to exercise its discretion under LA 1980, s 33.

In Johnson, the Court of Appeal adjudicated on a noise claim involving a 61-year-old claimant who was suffering with hearing problems. The court said that, following the ‘tightened up’ approach since Lord Hoffman’s speech in Bracknell and applying an objective test, such a claimant would be curious to know what was causing their deafness and would have consulted their GP—the claimant in this case was statute barred by several years.

The correct interpretation of Lord Hoffman’s speech was that there would be an assumption that a person who had suffered a significant injury would be sufficiently curious to seek advice unless there were reasons why a reasonable person in their position would not have done. The degree of curiosity to be expected of the reasonable person would depend on the seriousness of the condition and the way in which it manifested itself. By imposing an objective test of what a reasonable person would have done, the period in which a claimant had a right to bring their claim might well be restricted. However, it did not follow that they would necessarily be prevented from bringing their claim. The court would be able to consider their subjective reasons for not seeking expert advice at an earlier stage and might regard them as reasonable.

From LexisNexis