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Steeds v Peverell Management Services Limited, Court of Appeal, 30 March 2001

9 April 2001
The issues

Limitation – Section 33 Discretion – Factors To Be Taken Into Account

The facts

26/12/1996 Appellant slipped on ice. He brought proceedings against the Defendant company claiming that ice had formed on the pavement as a result of water flowing from their premises. In May 1997 he instructed solicitors who notified the respondents 7 months later. In the course of correspondence, insurers (AXA) confirmed that they would accept primary liability subject to contributory negligence. Limitation expired on 26th December 1999.

A Claim Form was not issued until 49 days later. Application was made to the District Judge to disapply Section 11 pursuant to Section 33 of the Limitation Act. The District Judge refused to disapply Section 11. The Judge on appeal found that he also would have exercised his discretion to disapply in the same way but for different reasons namely that there had been no explanation of the 5 month delay before instructing solicitors; nor had there been any explanation for the 12 month delay in notifying the respondents of the claim; namely the prejudice that had resulted to the Respondent as a result of those two periods of delay; namely the fact of the delay in issuing the Claim Form 49 days after expiry of limitation; finally the Appellant’s case iron case in negligence against his solicitors.

The Claimant appealed to the Court of Appeal

The decision

Thompson -v- Brown Construction (1981 H.L) followed.

1. The fault on the part of the Claimant was a relevant factor on considering whether to exercise the discretion under Section 33.

2. His solicitor’s faults were not to be attributed to him personally.

3. The existence of a claim by the Claimant against his solicitors “was not an irrelevant factor” and in Thompson was found to be “a highly relevant consideration”.

4. In considering the degree of prejudice suffered by a Defendant in not being able to rely upon the limitation period as a Defence it must be relevant to consider when the Defendant first had notification (Donovan v Gwentoys).

5. The prejudice to the Defendant as a result of the delay was not so great in the circumstances of his case.

6. The Judge had erred in referring that the period of delay after the instruction of solicitors to the Claimant himself. The delay of 5 months in instructing solicitors by someone who had sustained serious injury was not unreasonable.

7. The Claimant could not be blamed for the further 7 month delay by his solicitors. That delay would have been relevant if it had made it materially more difficult for the Respondents to adduce relevant evidence.

8. Whilst the Appellant’s solicitors could be criticised for their admitted negligence, that could not be held against the Appellant for the purposes of the exercise of the discretion. The injustice to the respondent was substantially less than the injustice that the Appellant would suffer if his claim against them was barred.

Appeal allowed.

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