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Cressey v E Timm & Son Ltd & Another, Court of Appeal, 24 June 2005

27 June 2005
The issues

Limitation – Date of Knowledge – Knowledge of the Identity of the Defendant

The facts

The Claimant was a Fork Lift Truck Driver employed by the Second Defendant, E Timms & Sons (Holdings) Limited (“Holdings”). His payslips came in the name of the First Defendant, E Timms & Sons Limited (“Limited”) which was an associate company. On 2nd December 2000 a pallet collapsed causing another pallet to fall and break his leg. He had sufficient information to commence proceedings there and then save as to the knowledge of his employer. A Letter of Claim was sent in March 2001 to Limited. That letter was passed to Zurich who ensured Limited. Zurich in their reply identified their insured as E Timms & Son Holdings and subsidiary companies. In May 2001 the Claimant was made redundant. The letter was sent on Limited’s letter head. In October 2001 Zurich admitted liability subject to contributory negligence. In March 2002 the question of contributory negligence was settled and it was agreed that Holdings would pay 75% of the damages.

In November 2003 solicitors acting for the Claimant told Zurich that a protective Claim Form would be issued and asked for confirmation as to the correct identity of the Defendant. On 20th November 2003 Zurich confirmed by e-mail that the correct Defendant was Holdings. On 27th November 2003 a Claim Form was issued. It was not served within the 4 months allowed for service and it therefore lapsed. A second Claim Form was issued naming both Defendants on 30th March 2003 and served on the same day. The Defendant applied to strike out the second Claim Form on the basis that it was time barred. The Defendant maintained that Mr Cressey had knowledge of the identity of the Defendant on the date of the accident. The Claimant argued that he had first learned that the existence of Holdings on 30th April and Zurich’s letter on 25th April had been received.

The District Judge found for the Claimant. The Judge on appeal dismissed that appeal. The Defendant appealed to the Court of Appeal.

The decision

The Judge and District Judge below had relied on Simpson v Norwest Holst Southern Limited, a decision of the Court of Appeal from 1980. On the basis of similar facts the Court of Appeal found for the Claimant in that case. They commented that in that case employers had a statutory duty to identify themselves to the employee in the written statement which they had to give under the Contracts of Employment Act 1972.

The Defendants had hidden their identity from the Claimant under the name of “Norwest Holst Group” as opposed to his actual employer, “Norwest Holst Southern Limited”.

The Court of Appeal had found that the Claimant could not on the day he had injured himself have known the identity of his employer and that the only sources from which he could have ascertained that knowledge namely the statutory written statement of the terms of his employment and his payslips did not give him any information useable in legal proceedings.

Whilst it was likely in most cases of an accident at work the employer would there and then have knowledge of the identity of his employer, there would be a minority of cases where the identity was uncertain or even wrongly stated to the employee and in such cases the date of knowledge might have to be postponed. In general it would not be postponed for long – only as long as it reasonably took to make and complete the appropriate enquiries. But if such enquiries were met by misinformation or idolatry response as in Simpson then it would not be possible to be dogmatic about the right conclusion. In this case the Claimant had been misinformed and had had no reason to think that any company other than Limited could be his employer until at least 30th April 2001.

The Courts below were right to be guided by Simpson. The Judge below had suggested that Simpson was out of date in the world of CPR. The Court of Appeal did not agree.

Appeal dismissed.

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