April 23, 2019

Discretion to extend limitation considered on appeal

This case concerned an appeal of the first instance decision which extended limitation under s.33 of the Limitation Act, allowing the Claimant's claim to proceed out of time. The case serves as a useful example of the issues that will be taken into account when determining whether to extend limitation.

Background

On 22/03/2012, Mr George Dunn, died from bronchopneumonia, having contracted asbestosis. It was alleged that this was caused through his employment with the Defendants.

The deceased's widow issued a claim under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 on 15/03/2015 (within three years of the death). However, the Defendants argued that limitation had expired in October 2011 as the deceased had knowledge in October 2008 and as such the claim could not proceed unless the court agreed to extend limitation.

Limitation was tried as a preliminary issue. The trial judge found that the deceased's date of knowledge was October 2008 (this was not challenged by the Claimant), but he exercised his discretion to allow the claim to proceed. The judge found that:

  • The delay in bringing the was understandable in human terms and was excusable
  • The Defendants were in no different position than they had been in 2008

The appeal

The Defendants appealed, arguing the following points, with Mrs Justice Yip giving judgment:

Delay and reasons

The deceased and the Claimant were advised in 2008 to seek legal advice about bringing a claim but chose not to do so. The Claimant stated that she and her husband did not take the diagnosis particularly seriously and were concentrating on his poor health rather than making a claim. After the death solicitors were instructed, with the Claimant understanding that she had three years to make a claim following her husband's death. Mrs Justice Yip agreed with the trial judge and found "the delay in these circumstances to be understandable on a human basis and to be excusable."

Prejudice and cogency of evidence

The Defendants challenged the trial judge's finding that their "position is unaffected by the delay". By 2008 both companies had gone into liquidation and records no longer existed. The trial judge found that there was no additional prejudice as a result of the delay since 2008. Mrs Justice Yip agreed concluding that the Defendants' "position was no worse in 2015 than in 2008."

Evidence of prejudice

The burden of proving that the discretion should be exercised in her favour rested upon the Claimant. The Defendants argued that the Claimant needed to produce evidence of additional prejudice beyond the loss of the claim as per the decisions in the cases of Cain and Carr. Mrs Justice Yip disagreed stating that "it is difficult to see what prejudice claimants can generally rely upon other than the loss of the claim. The effect of not exercising the discretion in the Claimant's favour would be to wholly deprive her of her claim." It was a balancing exercise in recognising the prejudice that would be caused to the Claimant in not allowing her claim to proceed against the prejudice caused to the Defendants in having to meet a claim brought out of time. Mrs Justice Yip agreed with the trial judge in that the Claimant had shown it was equitable for her claim to proceed.

Conduct and disability

The Defendants' submitted that the trial judge was wrong to direct himself that the Defendants' conduct was "irrelevant" and this should be considered as per s.33(3) of the Limitation Act as one of the factors the court is directed to consider. Mrs Justice Yip found that "not all factors will come into play in every case."

The Defendants argued that the trial judge was wrong to suggest that the deceased's general illness or infirmity was a disability that should be taken into account and that the meaning of disability under s.33(3)(d) is an incapacity to litigate. The appellate court found that the trial judge had misconstrued this section but that it "did not affect the outcome and does not justify setting his decision aside."

Delay in bringing claim following legal advice

The Defendants' complained that the trial judge had not considered this issue separately from the length of and reasons for the delay, particularly because he did not refer to the fact that the deceased was advised to consult solicitors in 2008 and had not. The appellate court found that there was "some force" in this but the "judge's view as to the extent to which the deceased and the Claimant had acted promptly and reasonably is apparent from the judgment." The trial judge found that the Claimant had instructed solicitors a month after the inquest and that the matter was then in the hands of the solicitors. He was therefore entitled to find that the Claimant had acted reasonably and promptly.

Decision

In conclusion, Mrs Justice Yip found that the "judgment adequately deals with the relevant considerations" and as the trial judge found that the strength of the defence was not affected by the Claimant's delay after 2008, which was excusable, "it cannot be realistically argued that the judge was wrong to conclude that it was equitable to allow the action to proceed."

What can we learn?

  • Judges have a "broad and unfettered discretion under s.33" of the Limitation Act.
  • The trial judge's findings at the preliminary hearing (that the delay was understandable and excusable, and that the Defendants' position had not materially changed since 2008) came from his findings of fact, as such an appellate court will always be reluctant to overturn them. These findings were properly open to the trial judge.
  • It was important to consider the case from a human perspective and the trial judge acknowledged that the Claimant's and deceased's approach was understandable and reasonable and should therefore not count against them.
  • The appellate court acknowledged that there are factors that a judge must consider when exercising his discretion under s.33 but that "not all factors will come into play in every case."
  • The Claimant was not required to adduce evidence of additional prejudice beyond the loss of a claim.
  • The trial judge had to balance the prejudice to the Claimant in losing her claim against the prejudice to the Defendants in being required to meet the claim out of time. In this case the Claimant had shown that it was equitable to allow her claim to proceed.