CC (Bishop Auckland) (Judge Briggs) 22/12/2008

CIVIL PROCEDURE - PERSONAL INJURY

ASBESTOSIS : DELAY : DISCRETION : LIMITATIONS : PERSONAL INJURY CLAIMS : PREJUDICE : APPROPRIATENESS OF NOT APPLYING LIMITATION PERIOD : s.33 LIMITATION ACT 1980

It was appropriate for a court to exercise its discretion under the Limitation Act 1980 s.33 so as not to bar a claim for damages for personal injury as delay before the claim was issued was explainable and the application of the bar would unfairly prejudice the claimant.

The court was required to determine whether it was appropriate for it to exercise its discretion under the Limitation Act 1980 s.33 and not apply the time limit under the Act for the commencement of proceedings by the claimant (H) against the defendant company (L).

Following a medical diagnosis that he suffered from asbestosis, H had brought a claim for damages against L on the basis that his only exposure to asbestos had occurred during his employment with L some 45 to 50 years beforehand.

That claim was issued in time but H's then solicitors failed to serve it in time and the claim was struck out. Some two-and-a-half years after the issuance of the first claim H issued a second claim for damages against L.

L contended that it was inappropriate to remove the limitation bar as to do so would unfairly remove their only defence, namely the limitation defence.

HELD: The court's discretion under s.33 was wide and unfettered, but the burden of persuading the court to exercise it was a heavy one that rested on H and discretion should be exercised where equity between the parties demanded it, Horton v Sadler (2006) UKHL 27, (2007) 1 AC 307 and KR v Bryn Alyn Community (Holdings) Ltd (In Liquidation) (2003) EWCA Civ 85, (2003) QB 1441 applied.

Further, it was clear that before exercising the discretion the court was required to carry out a balancing exercise on a consideration of all relevant circumstances, Long v Tolchard & Sons Ltd (2001) PIQR P2 CA (Civ Div) applied.

The existence of an alternative remedy was an important, relevant factor to consider but it could never be decisive on its own and its existence did not necessarily mean that that a party who could avail itself of such a remedy would suffer no prejudice, Thompson v Brown (t/a George Albert Brown (Builders) & Co) (1981) 1 WLR 744 HL and Steeds v Peverel Management Services Ltd (2001) EWCA Civ 419, Times, May 16, 2001 applied. In the instant case whilst H clearly had a claim against his former solicitors on which he was likely to succeed there was a significant risk that the damages that he would recover would be less than those from L.

Further, the delay in the in first proceedings was not attributable to H directly and H had acted promptly once it became possible to bring a second claim, Horton applied. L's defence only arose through the failure of H's former solicitors to serve his original claim in time.

In the context of the case that failure was a tiny delay that caused L no prejudice at all. The real delay that was prejudicial to L was the long delay between the end of H's employment and the commencement of the original claim. However, that delay was not attributable to H as he was unaware of his condition until the medical diagnosis that identified that he suffered from asbestosis.

Accordingly, in all the circumstances, it was clear that H would suffer a greater prejudice than L if his claim was not allowed to proceed and equity between the parties required the court to exercise its discretion under s.33. Judgment for claimant Counsel: For the claimant: J Munro For the defendant: S Turner Solicitors: For the claimant: Hewitts For the defendant: Morgan Cole LTL 25/2/2009 (Unreported elsewhere) Judgment: Approved - 23 pages Document No.: AC0119824