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 Council [2016] EWHC 527 (QB). Not least it eliminates one, still widely peddled, fallacy about Section 33 applications – that for the discretion to be exercised is an “exceptional indulgence”. Further the  importance of the Pre-Action Protocols was considered when the conduct, and delay, of the defendant came under scrutiny.

“The judge began this section of his judgment by observing, correctly in our view, that the burden of proof under section 33 lies on the claimant (see Thompson v Brown [1981] 1 WLR 744,742) recognising that the suggestion made in KR v Bryn Alyn Community Holdings Limited [2003] QB 1441 that it is a heavy burden is no longer good law. The discretion to disapply section 11 is unfettered and the court’s duty is to do what is fair”

KEY POINTS

  • An application under Section 33 does not require the court to make an “exceptional indulgence” the true test is for the court to do what is fair.
  • Delay by the defendant in complying with the Pre-Action Protocol can be a factor in a section 33 application.
  • The court looked at delay prior to the expiry of the limitation period and post limitation delay in considering prejudice and all the issues of the case.

THE CASE

The claimant’s husband had died of mesothelioma.  He was told in July 2010 that he had mesothelioma; proceedings were issued on the 7th October 2013;  Mr Sanderson died on the 18th January 2014.  Proceedings were, therefore, issued 10 weeks after limitation expired.

THE SECTION 33 CRITERIA

The issues that the judge had to consider are well known:-

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11…;

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received”

THE ABANDONING OF THE “EXCEPTIONAL INDULGENCE” ARGUMENT BY THE DEFENDANT

A feature of this case is that the Defendant elected to plead, but then had to abandon, an argument that a Section 33 order was an “exceptional indulgence” by the court.

  1. Bradford MDC accepted in written and oral submissions before me that the Amended Defence was wrong to assert that the burden of proof on the Claimant that it would be equitable to disapply the limitation period is a heavy one and that it is an “exceptional indulgence” to a Claimant. In MOD v AB [2010] 117 BMLR 101, Smith LJ said:
“The judge began this section of his judgment by observing, correctly in our view, that the burden of proof under section 33 lies on the claimant (see Thompson v Brown [1981] 1 WLR 744,742) recognising that the suggestion made in KR v Bryn Alyn Community Holdings Limited [2003] QB 1441 that it is a heavy burden is no longer good law. The discretion to disapply section 11 is unfettered and the court’s duty is to do what is fair: see Horton v Sadler [2007] 1 AC 307 and A v Hoare.”
  1. The fundamental question is whether it is fair and just in all the circumstances of the particular case to expect the defendant to meet the claim on the merits, notwithstanding the delay in commencing the proceedings: see Smith LJ in Cain v Francis [2009] QB 754. The discretion whether to grant permission is wide and “In resolving an application under section 33 the court must make a decision of which the inevitable effect is either to deprive the defendant of an accrued statute-bar defence or to stifle the claimant’s action against the tortfeasor who caused his personal injuries. In choosing between these outcomes the court must be guided by what appears to it to be equitable, which I take to mean no more (but also no less) than fair, and it must have regard to all the circumstances of the case and in particular the six matters listed in subsection (3). These are, as Lord Diplock observed in Thompson [1981] 1 WLR 744,751, ‘a curious hotchpotch’…” per Lord Bingham Horton v Sadler [2007] 1 AC 307, 323-4.

APPLYING THE SECTION 33 CRITERIA

The length and reason for the delay

Mr Sanderson suffered the shock of the initial diagnosis; an extended period of chemotherapy, which made him very ill. The treatment had a profound effect upon him and there was an unexpected period of remission when he attempted attempted to keep life normal for his family. He was anxious about teh costs of litigation.

there was the perfectly understandable human reaction to such catastrophic news that there were more important things than bringing a claim for damages.”
  1. “The combination of these factors ,together with the fact that the delay is not excessive but 2 ½ months or 10 weeks, weigh heavily in the balance in favour of giving the extension of time.”

The cogency of the evidence

The delay of 10 weeks had not adversely affected the cogency of the evidence such that the defendant’s ability to compromise it was compromised.

The conduct of the defendant after the cause of action arose

The judge’s observations here are interesting. The defendant’s own breach of the Pre-Action protocol was a relevant factor.

  1. Bradford MDC contend that had the claim been brought earlier then they would have investigated it quickly. However, the evidence contained in the statement of Lawrence Old on behalf of Bradford MDC sets out that when the letter of claim was served on 8 October 2013 (the day after the claim was issued) it took Bradford MDC until 30 December 2013 to inform its insurers who then instructed solicitors.
  2. That gap of 3 months, at a time when the matter was obviously urgent, is not explained and is contrary to steps the Defendant ought to have taken pursuant to the Pre-Action Protocol for Disease and Illness Claims.

Delay of deceased and the claimant

The claimant could not be criticised. Mr Sanderson had not acted promptly initially. However he did act promptly once he was advised to take legal advice.  Once the decision to bring a claim had been made it was progressed expeditiously.

Instructions to experts

Experts were instructed promptly once legal advice was taken.

The overall delay
  1. While section 33(3)(a) is concerned with delay after the expiry of the primary limitation period, it is necessary for the court to also take into account the entirety of the time that has passed since the alleged exposure. Prejudice to the Defendant accruing due to the passage of time prior to the date of knowledge and to delay during the primary limitation period is relevant as part of the overall circumstances of the case (Collins v SoS for BIS[2014] EWCA Civ 717 and Donovan v Gwentoys Limited [1990] 1 WLR 472).
  2. Mr Sanderson stopped working for Bradford MDC on 23 August 1987 and his alleged exposure to asbestos was during the early-to- mid-1980s. 30 years have since passed. He did not know of the diagnosis until the results of a biopsy on 19 July 2010 but the three year limitation period expired without Mr Sanderson even alerting Bradford MDC to the possibility of a claim, despite the fact that he was clearly aware of that possibility and had it in the back of his mind (as he put it in his statement). Mr Sanderson appears to have had long-standing symptoms, but those were not diagnosed earlier despite various earlier investigations.
  3. Bradford MDC contends that, as a result of the overall passage of time since the alleged exposure, they have suffered evidential prejudice. Bradford MDC refers to its inability to challenge the evidence that Mr Sanderson was in fact exposed to materials containing asbestos while working for Bradford MDC and warns that it would be wrong to find that there is a strong case based upon unchallenged evidence where that strength comes about by reason of the Defendant’s limited opportunity to challenge the evidence. In KR v Bryn Alyn Community Ltd [2003] 1441, 1470 Auld LJ (giving the judgment of the court) made the comment that, depending on the issues and the nature of the evidence going to them “the longer the delay the more likely, and the greater, the prejudice to the defendant”. In my judgment, while the passage of time undoubtedly increases the difficulty for Bradford MDC in the investigation of these allegations, I am not satisfied that it creates a prejudice which, weighed in the balance, means that it would not be just and fair to extend time under section 33. It is incumbent upon the court to take into account the effluxion of time between the alleged exposure and the diagnosis and then the effluxion of time after diagnosis to the expiry of the primary limitation period (seeCollins v SoS for BIS). However, in the circumstances of this matter, the evidence indicates that Bradford MDC knew the potential risks but, according to the evidence of Mr Sanderson, corroborated by Mr Woodhead, the steps to limit exposure to asbestos dust were not undertaken. No amount of earlier investigation by Bradford MDC could alter that situation. Further, as well as identifying Mr Woodhead as a manager during the relevant time, Mr Sanderson identified three plumbing colleagues. Bradford MDC have not indicated what, if any, steps they have taken to identify these individuals where Bradford MDC are likely to have a much better opportunity to find them than the Claimant and her lawyers.
  4. I fully appreciate that in a “long tail” case such as this, the additional 2 ½ months beyond the expiration of primary limitation can cause further and real disadvantage. However Bradford MDC (or their insurers) did not act swiftly. After receipt of the letter of claim dated 8 October 2013, solicitors were not instructed until 30 December 2013. A period of nearly 3 months was therefore lost. While the enquiry of Mr Sanderson’s solicitors, Irwin Mitchell, asking for the provision of supporting evidence took approximately 5 weeks, and during that time Mr Sanderson had unfortunately died, it does not appear to me that Bradford MDC were acting with the expedition that should be expected in the circumstances where it was known from the letter dated 8 October 2013 that this was an urgent mesothelioma claim and that the alleged exposure was during the 1980s.
  5. The passage of time both before and after the expiration of the primary limitation period adds to the difficulties faced by Bradford MDC to challenge and defend the claim, but is not such that it outweighs the factors in favour of the Claimant.
  6. The evidence called on behalf of the Claimant is compelling and cogent, showing both that Mr Sanderson was exposed and that it was reasonably practical to reduce that exposure and that was not done. Mr Woodhead, who corroborates the evidence with respect to exposure, was not subjected to challenge by Bradford MDC. The existence of Mr Woodhead’s evidence limits the prejudice caused by reason of the death of Mr Sanderson as Mr Woodhead is available to be cross-examined. Further, Bradford MDC decided not to challenge Mr Plumb or to call their own evidence to contradict his findings. In my judgment, it is not possible for Bradford MDC to establish that there is such evidential prejudice that it cannot defend the claim.”

The judge allowed the application under Section 33.

RELATED POSTS ON SECTION 33

Limitation

 

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