LONG V TOLCHARD & SONS LTD [1999] All ER (D) 1303
FACTS:-
The Claimant issued proceedings for damages for personal injury against the Defendants in February 1990, six and a half years after he had sustained a back injury whilst in their employment. The Defendant had no idea of the claim until they received the proceedings accompanied by a letter from the Claimant’s solicitors. There was no letter of claim. The Claimant claimed that it was not until March 1987, when had been seen by an orthopaedic registrar, that he had realised that his back trouble was serious and that it was attributable to the acts or omissions of his employers in August 1983.
The trial judge accepted that the Claimant had not been in a position to consider a claim prior to March 1987, and went on to say that had he not found for the Claimant on the issue of “date of knowledge” under Section 11 of the Limitation Act 1980, he would have exercised his discretion under Section 33 of that Act. The trial judge then went on to find for the Claimant on liability, and remitted the case to another judge on the issue of quantum.
At the quantum hearing, the new judge took a very different view to that of the former judge as to the Claimant’s credibility. Part of the reason was that the Defendant had instructed enquiry agents to film the Claimant. The Claimant’s medical records also revealed pre-existing back problems, and crucially a consultation with a chiropractor in 1985 when the injury in 1983 was discussed. Damages of £10,000 were awarded, against which award the Claimant appealed.
The Defendant was given leave to appeal against the order of the first judge out of time on the issue of limitation and leave was also given to adduce the new medical evidence that appeared at the quantum hearing.
JUDGMENT:-
Lord Justice Roch said that it was an inescapable inference that had the first judge known of the visits to the chiropractor in 1985, and seen the history as recorded by that chiropractor, he would have decided that the Claimant had the necessary knowledge to warrant the commencement of proceedings prior to March 1987.
That left the issue of Section 33, which Roch LJ considered in detail. In the case of Thompson v Brown [1981] 1 WLR 744 the court said that the onus of showing that it would equitable to disapply the limitation provisions lay on the Claimant, but subject to that, the court’s discretion to make or refuse an order was unfettered.
In Donovan v Gwentoys [1990] 1 WLR 472 the House of Lords said that the prejudice to the Defendant from late notification of the claim was a relevant consideration to be taken into account. In Hartley v Birmingham City Council [1992] 1 WLR 968, Parker LJ had said that the stronger the Claimant’s case, the greater the prejudice to him from the operation of the provision and the greater would be the prejudice to the Defendant if the provision was disapplied. Likewise the weaker the case of the Claimant the less he would be prejudiced by the operation of the provision and the less would be the Defendant prejudiced if it was disapplied. What was of paramount importance was the effect of the delay on the Defendant’s ability to defend. It was also legitimate to take into account, when considering prejudice to the Claimant, that he will have a claim against his solicitors.
Part of the judgement in Hartley was qualified by the Court of Appeal in Nash v Eli Lilly & Co. [1992] 1 WLR 782 where the court observed that the principles stated could not be regarded as of universal application, because there could be instances where the case of the Claimant was weak but the prejudice to the Defendants of disapplying the limitation provisions would be considerable, the Defendant not being able to recover the costs of defending the proceedings against an impecunious Claimant.
In this case, the Claimant’s ability to sue his lawyers was not a factor. If the limitation provision was disapplied, what the Defendant would lose would depend on the strength of the case against them and the value of the case brought against them. In many cases, that would include what the Defendant would lose by way of costs in defending the proceedings.
There was a further consideration and that was the ability to have a fair trial of the issues, and these included liability, contributory negligence, causation and quantum. The fact that liability had been established and contributory negligence had never been pleaded was not the end of the matter. The court did not have to exercise its discretion under Section 33 of the Limitation Act 1980.
Roch LJ said that he would set aside the judge’s decision that Section 33 should be exercised in the Claimant’s favour. The Claimant’s credibility had been substantially, if not totally, undermined. If the claim had been brought earlier, the Defendant might well have been in a much stronger position to investigate the case.
Hale LJ and Auld LJ agreed.
FACTS:-
The Claimant issued proceedings for damages for personal injury against the Defendants in February 1990, six and a half years after he had sustained a back injury whilst in their employment. The Defendant had no idea of the claim until they received the proceedings accompanied by a letter from the Claimant’s solicitors. There was no letter of claim. The Claimant claimed that it was not until March 1987, when had been seen by an orthopaedic registrar, that he had realised that his back trouble was serious and that it was attributable to the acts or omissions of his employers in August 1983.
The trial judge accepted that the Claimant had not been in a position to consider a claim prior to March 1987, and went on to say that had he not found for the Claimant on the issue of “date of knowledge” under Section 11 of the Limitation Act 1980, he would have exercised his discretion under Section 33 of that Act. The trial judge then went on to find for the Claimant on liability, and remitted the case to another judge on the issue of quantum.
At the quantum hearing, the new judge took a very different view to that of the former judge as to the Claimant’s credibility. Part of the reason was that the Defendant had instructed enquiry agents to film the Claimant. The Claimant’s medical records also revealed pre-existing back problems, and crucially a consultation with a chiropractor in 1985 when the injury in 1983 was discussed. Damages of £10,000 were awarded, against which award the Claimant appealed.
The Defendant was given leave to appeal against the order of the first judge out of time on the issue of limitation and leave was also given to adduce the new medical evidence that appeared at the quantum hearing.
JUDGMENT:-
Lord Justice Roch said that it was an inescapable inference that had the first judge known of the visits to the chiropractor in 1985, and seen the history as recorded by that chiropractor, he would have decided that the Claimant had the necessary knowledge to warrant the commencement of proceedings prior to March 1987.
That left the issue of Section 33, which Roch LJ considered in detail. In the case of Thompson v Brown [1981] 1 WLR 744 the court said that the onus of showing that it would equitable to disapply the limitation provisions lay on the Claimant, but subject to that, the court’s discretion to make or refuse an order was unfettered.
In Donovan v Gwentoys [1990] 1 WLR 472 the House of Lords said that the prejudice to the Defendant from late notification of the claim was a relevant consideration to be taken into account. In Hartley v Birmingham City Council [1992] 1 WLR 968, Parker LJ had said that the stronger the Claimant’s case, the greater the prejudice to him from the operation of the provision and the greater would be the prejudice to the Defendant if the provision was disapplied. Likewise the weaker the case of the Claimant the less he would be prejudiced by the operation of the provision and the less would be the Defendant prejudiced if it was disapplied. What was of paramount importance was the effect of the delay on the Defendant’s ability to defend. It was also legitimate to take into account, when considering prejudice to the Claimant, that he will have a claim against his solicitors.
Part of the judgement in Hartley was qualified by the Court of Appeal in Nash v Eli Lilly & Co. [1992] 1 WLR 782 where the court observed that the principles stated could not be regarded as of universal application, because there could be instances where the case of the Claimant was weak but the prejudice to the Defendants of disapplying the limitation provisions would be considerable, the Defendant not being able to recover the costs of defending the proceedings against an impecunious Claimant.
In this case, the Claimant’s ability to sue his lawyers was not a factor. If the limitation provision was disapplied, what the Defendant would lose would depend on the strength of the case against them and the value of the case brought against them. In many cases, that would include what the Defendant would lose by way of costs in defending the proceedings.
There was a further consideration and that was the ability to have a fair trial of the issues, and these included liability, contributory negligence, causation and quantum. The fact that liability had been established and contributory negligence had never been pleaded was not the end of the matter. The court did not have to exercise its discretion under Section 33 of the Limitation Act 1980.
Roch LJ said that he would set aside the judge’s decision that Section 33 should be exercised in the Claimant’s favour. The Claimant’s credibility had been substantially, if not totally, undermined. If the claim had been brought earlier, the Defendant might well have been in a much stronger position to investigate the case.
Hale LJ and Auld LJ agreed.