LIMITATION AND DATE OF KNOWLEDGE: NO SPECIAL RULE BECAUSE THE CLAIMANT WAS A SOLICITOR

I am grateful to Thomas Jervis of Leigh Day for sending me a copy of the judgment of Mr Justice Goss in Lewin -v- Glaxo Operations UK Limited [2016] EWHC 3331 (QB), an interesting decision in relation to limitation.

(A copy of the case is available here lewin)

KEY POINTS

  • The claimant had suffered late onset symptoms following Myodil being used.
  • The date of knowledge was the date on which the diagnosis of Myodil was made.
  • The fact that the claimant was a solicitor and had read about the Myodil Group Litigation in the Law Society Gazette did not fix the claimant with date of knowledge at the date of that article.  His symptoms were not attributed to Myodil at that time.
  • In any event, if necessary, the judge would have exercised his discretion under Section 33 of the Limitation Act 1980.

THE CASE

The claimant is aged 59. He is now severely and permanently disabled. His action against the defendant  is that his disabilities arise from Myodil being used in a procedure in 1973 when he was aged 15-16.  The defendant was the manufacturer of Myodil. The claimant’s case was that Myodil should never have been made available.

THE ISSUE

The court had ordered a preliminary trial on the issue of the date of knowledge under Sections 11 and 14 of the Limitation Act 1980 and, if the action was outside the limitation period, whether the court should exercise its discretion under Section 33 of the Act.

THE DATE OF KNOWLEDGE

The judge reviewed the law relating to the date of knowledge in detail.

1.The judge found that Myodil could cause late onset problems.  He found that the damage to the claimant’s spine was not caused prior to 1977 and that no damage had been caused prior to July 1995.

2. The defendant contended that the date of knowledge was 1980 when the claimant was told that he had ongoing back problems. However the judge held that claimant was not told any specific in relation to the cause of his back problems in 1980. Rather he was told that nothing specific could be identified or be done.

3. Even if the claimant had made further enquiries in 1980 the judge found that this would not have led to any problem attributable to Myodil.

4. The judge also rejected the argument that the date of knowledge was the date that the claimant (who was a solicitor) read about Myodil Group Litigation in the Law Society Gazette. There was nothing to link the claimant’s symptoms at that time with that litigation. The judge held:

“… I reject the defendant’s case that he could have been expected, particularly as a lawyer, to make enquiries of the Group Litigation’s Lead Solicitors and that, he he done so, his date of knowledge would have been some time in, say, 1993, and in any event, within time for him to join the Group Litigation.”

5. The judge held that the cause of action arose when the claimant was first diagnosed with suffering from post-Myodil adhesive arachnoiditis.  This was the 22nd October 2012.  Proceedings were issued on the 15th October 2015, within the three year period.

SECTION 33 DISCRETION

The judge also held that, if it had been necessary, he would have exercised his discretion under Section 33:

  • The claimant’s case could not be categorised as “weak”.
  • The claimant did not have any direction knowledge of an injury as a result of Myodil.
  • The defendant was not facing a “stale claim” where it has become difficult or impossible to defend the claim.
  • The defendant’s main prejudice would be financial.
  • These matters had already been the subject of detailed investigation by the defendant.
  • The claimant was now revealed to have suffered the late onset of a very significant injury where there was clear expert evidence as to its cause.

RELATED POSTS ON LIMITATION

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