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Antat v. Devon County Council, Exeter County Court, 28 June 2006

25 July 2005
The issues

Limitation – factors to consider when granting relief under s33 – whether the period from date of accident to date of issue as a whole was relevant – relevance of self insured local authority

The facts

The Claimant was employed by the Defendant as a residential social worker. On the 23rd August 2001 he allegedly injured himself whilst restraining a child.

The Claimant instructed his solicitors, Thompsons in or before August 2003. An unsuccessful claim on the CICA fund was pursued. Proceedings were issued against the Defendant on 22 September 2004, one month after the expiry of the 3 year limitation period. Thereafter a further 5 – 6 weeks passed before the Defendant was put on notice of a claim. Proceedings were served on 22 December 2004.

No explanation for the delay was forthcoming save for an indication by Claimant’s counsel at the hearing that there had been an “oversight”. No evidence was filed in support. The Claimant’s solicitor had failed to respond to each of the 7 letters that had been written by the Defendant and its solicitors over the period September 2004 – June 2005.

The Defendant obtained evidence from the manager at the care centre confirming that little could be remembered about the accident and that a key witness had emigrated to Australia.

The Defendant applied for the claim to be struck out. The Claimant asked the Court to exercise its discretionary power to extend the time limit under s33 of The Limitation Act 1980.

The decision

The onus was on the Claimant to provide a satisfactory explanation as to why the delay occurred. No such explanation had been provided. The Claimant (or more specifically his solicitors) had failed to do what he might have done in seeking to persuade the Court.

It was common ground that the Claimant first went to see his solicitors in 2003. They took up his complaint by way of a claim against the CICA. It was clear that a year before limitation expired minds were already concentrated. In such circumstances the delay was inexcusable.

It was significant that there had been no notification at all given by the Claimant to the Defendant until 1/11/04. The judge relied upon the comments of Lord Griffiths in the case of Donavan v. Gwentoys HL 1990 who stated that whilst the time of notification of the claim may not be a relevant consideration under s33(3) of the Limitation Act it was a very relevant factor that should be taken in to account in exercising the overall discretion. In weighing the degree of prejudice suffered by the Defendant it must always be relevant to consider when the Defendant first had notification of a claim and thus the opportunity he will have to meet the claim at trial if he is not permitted to rely upon the limitation defence.

This was a modest claim and in exercising its discretion the Court must take in to account the effect of allowing stale claims to continue. The fact that the Defendant was self-insured must also be a relevant consideration – this was not a case where an insurer would be getting a windfall.

The Claimant’s claim would be struck out.

Comments

For further information on this case please contact Daniel Turner (danielturner@veitchpenny.co.uk) or Brent McDonald of 2 Temple Gardens (bmcdonald@2tg.co.uk).

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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