Limitation is not a complete defence

In personal injury matters a claimant has three years from the date of the accident (or date of knowledge) to issue proceedings under the Limitation Act 1980. One of the first considerations on taking on a case is the Limitation Period. Often if a case is taken on near to the expiry of the Limitation Period, protective proceedings will be issued to protect the client’s claim.

A claim which is not issued within the correct time limits will be statute barred. However, this may not be the end of the matter for the Claimant. The courts have a discretion which may enable the Claimant to continue with their claim and recent case law has shown that the court’s have used s.33 Limitation Act 1980 to allow claims to continue.

 s. 33 Limitation Act

In civil proceedings a claim can only be brought within a certain period of time. Under the Limitation Act 1980, ss. 2 and 5 a claimant will have:

• 3 years to bring a claim for personal injury
• 6 years to bring a claim in negligence
• 6 years to bring a claim in contract

If the claim is not brought within these time periods, then it is statute barred and the Defendant’s have a statutory defence to the claim under s.11 of the Act that the Limitation Period has expired.

However, this may not be the end of the matter for the Claimant.

s. 33 Limitation Act 1980

Under s. 33 of the Act, the court has an unfettered discretion to disapply the limitation period. s. 33 provides that if it appears to the court that it would be equitable to allow a claim to proceed having regard to:

• the provisions of ss 11 & 12 of the Act (the Limitation Period); and
• any decision of the court would prejudice the defendant

then the court can take the following into consideration when determining whether to direct that those provisions shall not apply to the action or cause of action:

• the length of the delay and the reasons for it
• the extent that the delay has effected the cogency of the evidence
• the conduct of the Defendant
• the duration of any disability of the Claimant arising after the date of accrual
• the steps that the Claimant took to act promptly once they were aware of the Limitation Period
• the steps the Claimant took to obtain medical, legal or other advice.

Recent Case Law

 In the case of Jacqueline Adam v Rasal Ali the appellant appealed against the striking out of her claim for personal injury. The appellant’s case had been issued a week outside the Limitation Period and they had also failed to serve the claim form within 4 months or at all. Liability had been admitted and the appellant had a substantial claim for damages.  The proceedings had been struck out and the appellant had issued a new claim. The Claimant argued that the court should not be bound by the decision in the case of Walkley to hold that it could not disapply the limitation period because in that case proceedings had been issued before the time limit expired and the case should be confined to those circumstances.

The respondent argued that the court’s power to allow a claim could not be used where a Claimant had been prejudiced not by reason of s.11 of the Act but because they had failed to proceed with an earlier claim.

The court considered the case of Walkley v Precision Forgoings Ltd. the Court held that the ‘salient feature’ of this case was that the first action between the partied had begun within the three-year period. This was therefore distinguished from the instant case because proceedings had been brought out of time. However, the court held that the trial judge had erred in his decision not to allow the case under s. 33. The key word is that the s. 33 discretion is unfettered and therefore, the question is whether or not it would be equitable to allow the case to proceed.

The court balanced the potential prejudice to the Defendant against the equitable considerations of allowing the matter to continue.

The above recent case appears to follow the reasoning of the matter of Burgin v Sheffield City Council . In this matter, the court held that the court had not erred in exercising its discretion to allow a time barred claim for personal injury. Again, the court considered the issue of prejudice to the Defendant. It reasoned that the effect of the delay on the Defendant’s ability to defend the claim was of ‘paramount’ importance; however, the evidential burden of showing that evidence was less cogent fell on the Defendant.

The court was unclear as to the nature of any prejudice that the defendant would suffer. Whilst they therefore recognised potential prejudice, they allowed the claim to proceed as they held that it would be equitable to allow it.

In the case of Sean McGhie v BT Plc the court disallowed the appellants case as they held that the trial judge had erred in his application of his s.33 discretion. They held that whilst the judge had considered the issue of proportionality he had not evaluated it and furthermore no reference was made to the question of prejudice. The court also felt that the case for liability was ‘thin’ and based on hearsay evidence (not admissible in civil matters).

Conclusion

When considering whether or not s.33 can be relied upon by a Claimant to allow a claim
the equitable maxim ‘equity looks on that as done which ought to be done’ appears to apply. The courts will balance the competing issues of fairness and prejudice when deciding whether or not to allow a matter to proceed.

If the error is simple and the delay is not long then it is likely that a Claimant can use s.33 to their advantage. Where there is extensive correspondence between the Claimant's representative and insurer/defendant the equitable maxim will be helpful to the Claimant.