YATES V THAKEHAM TILES LIMITED Unreported Court of Appeal
6th May 1994
FACTS:-
The Claimant sustained an injury to his lower back whilst lifting a damp pillar block on the 1st October 1986. He left their employment in May 1987 and at the beginning of June 1987 he had an operation on his back, from which he made an uneventful recovery. By the end of September 1987, he was back at work. He did not consult solicitors until March 1991, some four and a half years after the alleged accident and 18 months after the expiry of the limitation period. There was no letter of claim until March 1992 (due to difficulties with the Legal Aid Board). In October 1987 he had applied for industrial injuries benefit and by March 1991 he was registered as disabled. The Claimant said that until 1991, he had never given thought to, or realised that there was a potential claim for damages against the Defendant.
The trial judge allowed the case through on section 33 of the Limitation Act 1980.
JUDGMENT:-
Lord Justice Nourse discussed the evidence that was available. Evidence was given by the Defendant to the effect that certain evidence could not be obtained and that memories would have faded due to the passage of time. He also considered Section 33(3) of the Limitation Act 1980. The combined effect of the provisions under Section 33(3) was that in deciding whether it would be equitable to allow the action to proceed, the court should first have regard to the degrees of prejudice to the Claimant and the Defendant in maintaining or relaxing the time bar respectively and secondly, to all the circumstances of the case.
The Defendant’s counsel had made three criticisms of the way in which the trial judge had dealt with Section 33(3).
Firstly the judge had failed to take sufficient account of the extent to which the evidence likely to be adduced by the Defendant would be likely to be less cogent. Nourse LJ felt that the judge had dealt with that issue carefully.
Secondly the judge in relation to paragraph (d) of Section 33(3) had misconstrued the word “disability” as meaning physical disability. Nourse LJ said that the word “disability” related to legal disability not physical disability. However the judge was entitled to take the physical disability into account when considering all the circumstances of the case and his misconstruction of paragraph (d) did not affect the outcome of the case.
Thirdly it was said that the judge had erred in holding that the Claimant acted promptly and reasonably once he knew whether or not the Defendant’s acts or omission might be capable of giving rise to an action for damages. The judge had expressed concern that the Claimant’s solicitors had not immediately written to the Defendant notifying them of the claim. The judge had said that although this would have been a sensible precaution, he could understand that the Claimant’s solicitors wanted to wait until they had a favourable advice from counsel on the merits of the claim. Nourse LJ said that he was entitled to take the view that the Claimant’s solicitors could properly defer writing their letter before action.
Nourse LJ said that in his view, this was a borderline case. He referred to the case of Donovan v Gwentoys Ltd [1990] 1 WLR 472. After careful reflection, the Court of Appeal would not interfere with the judge’s decision. The balancing of the material factors was always a matter for the judge, Nourse LJ was not satisfied that the judge would have been plainly wrong.
Lord Justice Wall agreed and commented that the broad discretion conferred by section 33 of the Limitation Act 1980 was very difficult to attack. It had been suggested that the judge had failed to direct his mind to Section 33(1) and to consider the overall question of prejudice to both parties. However it was clear from his judgment that he had considered that issue.
Both Nourse LJ and Wall LJ had expressed doubt about the judge’s statement to the effect that because the Claimant and another witness had such a clear recollection of the accident, then another witness would also have little difficulty in recalling what happened. However the criticism made by the Defendant’s counsel were insufficient to take the case overall outside the ambit within which reasonable disagreement was possible.
In relation to disability under section 33(3)(d), Wall LJ said that this meant legal disability, but that the Claimant’s physical disability was one of the circumstances of the case that could be taken into account by the judge.
He also agreed that the delay on the part of the Claimant’s advisers to issue proceedings timeously after receiving instructions, was capable of constituting negligence or was so unreasonable as to entitled the judge to weigh it as a decisive factor.
6th May 1994
FACTS:-
The Claimant sustained an injury to his lower back whilst lifting a damp pillar block on the 1st October 1986. He left their employment in May 1987 and at the beginning of June 1987 he had an operation on his back, from which he made an uneventful recovery. By the end of September 1987, he was back at work. He did not consult solicitors until March 1991, some four and a half years after the alleged accident and 18 months after the expiry of the limitation period. There was no letter of claim until March 1992 (due to difficulties with the Legal Aid Board). In October 1987 he had applied for industrial injuries benefit and by March 1991 he was registered as disabled. The Claimant said that until 1991, he had never given thought to, or realised that there was a potential claim for damages against the Defendant.
The trial judge allowed the case through on section 33 of the Limitation Act 1980.
JUDGMENT:-
Lord Justice Nourse discussed the evidence that was available. Evidence was given by the Defendant to the effect that certain evidence could not be obtained and that memories would have faded due to the passage of time. He also considered Section 33(3) of the Limitation Act 1980. The combined effect of the provisions under Section 33(3) was that in deciding whether it would be equitable to allow the action to proceed, the court should first have regard to the degrees of prejudice to the Claimant and the Defendant in maintaining or relaxing the time bar respectively and secondly, to all the circumstances of the case.
The Defendant’s counsel had made three criticisms of the way in which the trial judge had dealt with Section 33(3).
Firstly the judge had failed to take sufficient account of the extent to which the evidence likely to be adduced by the Defendant would be likely to be less cogent. Nourse LJ felt that the judge had dealt with that issue carefully.
Secondly the judge in relation to paragraph (d) of Section 33(3) had misconstrued the word “disability” as meaning physical disability. Nourse LJ said that the word “disability” related to legal disability not physical disability. However the judge was entitled to take the physical disability into account when considering all the circumstances of the case and his misconstruction of paragraph (d) did not affect the outcome of the case.
Thirdly it was said that the judge had erred in holding that the Claimant acted promptly and reasonably once he knew whether or not the Defendant’s acts or omission might be capable of giving rise to an action for damages. The judge had expressed concern that the Claimant’s solicitors had not immediately written to the Defendant notifying them of the claim. The judge had said that although this would have been a sensible precaution, he could understand that the Claimant’s solicitors wanted to wait until they had a favourable advice from counsel on the merits of the claim. Nourse LJ said that he was entitled to take the view that the Claimant’s solicitors could properly defer writing their letter before action.
Nourse LJ said that in his view, this was a borderline case. He referred to the case of Donovan v Gwentoys Ltd [1990] 1 WLR 472. After careful reflection, the Court of Appeal would not interfere with the judge’s decision. The balancing of the material factors was always a matter for the judge, Nourse LJ was not satisfied that the judge would have been plainly wrong.
Lord Justice Wall agreed and commented that the broad discretion conferred by section 33 of the Limitation Act 1980 was very difficult to attack. It had been suggested that the judge had failed to direct his mind to Section 33(1) and to consider the overall question of prejudice to both parties. However it was clear from his judgment that he had considered that issue.
Both Nourse LJ and Wall LJ had expressed doubt about the judge’s statement to the effect that because the Claimant and another witness had such a clear recollection of the accident, then another witness would also have little difficulty in recalling what happened. However the criticism made by the Defendant’s counsel were insufficient to take the case overall outside the ambit within which reasonable disagreement was possible.
In relation to disability under section 33(3)(d), Wall LJ said that this meant legal disability, but that the Claimant’s physical disability was one of the circumstances of the case that could be taken into account by the judge.
He also agreed that the delay on the part of the Claimant’s advisers to issue proceedings timeously after receiving instructions, was capable of constituting negligence or was so unreasonable as to entitled the judge to weigh it as a decisive factor.