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Russell v Alley, Court of Appeal, 21 February 2006

3 March 2006
The issues

Limitation Act 1980 Section 33 – Walkley v Precision Forgings Ltd

The facts

The Claimant was injured in a road traffic accident which occurred in July 1999. In November 1999 the Defendant’s insurers wrote to the Claimant’s solicitors telling them that liability was not in issue. The Claimant’s injuries were more serious that were anticipated and several experts became involved.

The Solicitor’s Clerk dealing with the Claimant’s case was experiencing personal difficulties which led him to neglect his responsibilities. The claim was not issued in the Bromley County Court until 12th July 2002, a week outside of primary limitation.

Particulars of Claim were not served within 4 months or at all. The Defendants had filed evidence to the effect that had the Particulars of Claim been served the Defendant would have taken the view that it would not have been worth taking the limitation point. In fact nothing much happened and the Claimant was led to believe that everything was proceeding smoothly and was even asked to provide dates when it would be convenient for her to attend Trial. Instead the claim was struck out by the District Judge on his own motion on 15th August 2003.

On 20th August 2003 a second set of proceedings was issued. The issue before the Court was whether the Court had the discretion to disapply the limitation power pursuant to Section 33 or whether the principle established in Walkly v Precision Forgings Ltd prevented the exercise of that discretion. The matter came before the Master. Four preliminary issues for Trial before the Judge. The Judge’s answers were as follows:-

1. The Claimant’s date of knowledge was 5th July 1999;
2. The first claim in the Bromley County Court had not been brought before the limitation period expired;
3. The Court did not have a discretion pursuant to Section 33 to dis-apply Section 11;
4. If the Judge had a discretion it would not have been exercised in favour of the Claimant.

The claim was struck out. The Claimant appealed to the Court of Appeal

The decision

1. Walkley had been distinguished by the Court of Appeal in previous cases. For example White v Glass (“the second action not a mere repetition since the action which had started during the limitation period was defective and invalid and not capable of resurrection”); and Shapland v Palmer (second action brought against Defendant driver and not Defendant’s employers). In Shapland the Court of Appeal had stated that the Section 33 discretion arose in all cases except those which fell four square within the Walkley principle, and that Walkley should be confined to its own facts. The ambit of Walkley should be carefully confined – namely to cases where the first action between the same parties began within the primary time limit of 3 years. The Judge had been wrong on this point and the Claimant would succeed on the first ground therefore.

2. As to discretion, the Judge had indicated merely how he would have exercised his discretion since he had found in fact that Section 33 did not apply. He had however described the discretion as being “a narrow discretion”. It was in fact unfettered. The overall question was one of equity.

3. Here the relevant delay was a period of 13 months. On the other hand the Defendant had been notified of the claim within days of the accident and liability was soon admitted. Some of the delay was unexplained. There was no evidence to suggest the Claimant had personally failed at all. She had consulted solicitors immediately. The reason for the failure to prosecute lay entirely with her solicitors and that was not her fault.

4. As to the cogency of the evidence, liability was not in dispute, and any difficulties in investigating causation and injury were not a strong argument on behalf of the Defendant. It had been said that there was no evidence of the continuing existence of financial documents or availability of medical records. The burden of proof was on the Claimant. If the Claimant could not support a claim for pecuniary loss by the production of relevant documents she would lose or suffer disadvantage. The claim against solicitors that she might have was a highly relevant consideration. That however had to be put in context. Such a claim would cause delay to the Claimant and would not be cast iron in terms of its prospects of success.

5. The Judge had misdirected himself and the Court of Appeal would exercise its own discretion. The question was whether it was equitable to allow the action to proceed and the answer was given by balancing prejudice to the Claimant against the prejudice to the Defendant. The delay was long and some of it explained. It was mitigated by the fact that the Defendant had early notice of the claim and had admitted liability. The cogency of the evidence would have been affected and records may be lost or destroyed but the Court would not be persuaded that the Defendant would suffer any greater prejudice than the Claimant in this respect and indeed the deficiencies in presenting the claim for special damages might be advantageous to the Defendant. The Claimant herself was largely blameless. To allow the claim to proceed would give the Defendant’s insurers an unexpected windfall. That was not a satisfactory solution. Justice and fairness required that the Claimant be permitted to proceed with her action. It was the prejudice that the Defendant did not outweigh the prejudice to the Claimant in having their claim struck out as time barred.

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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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