The High Court has recently overturned a first instance decision which refused to extend the limitation period for a claimant pursuant to section 33 of the Limitation Act.
Gregory v H J Haynes Limited  EWHC 911 (Ch)
Addressing the key issues relating to the disapplication of the Limitation Act, Mr Justice Mann held that the delay was excusable in the circumstances, and that a fair trial was still possible, although it was very close to the point at which it would be unfair to a defendant to extend the period.
The Claimant was employed as a roofer by the defendant, claiming to have been exposed to asbestos dust during his employment. The Claimant now suffers from pleural thickening and respiratory disability and is at risk of mesothelioma and asbestosis.
The parties agreed that the limitation period commenced in November 2008, when the Claimant first had knowledge of his disease. In March 2009, the Claimant contacted solicitors with a view to making a claim. The Defendant company no longer existed, having been dissolved in December 1992. From 2009 to 2012, a number of unsuccessful enquiries to try and ascertain the insurers of the company at the time of the Claimant's employment were made.
On 2 September 2014 the Claimant's solicitors became aware of the insurer's identity after searching ELTO, and a letter of claim was issued on 27 March 2015. The Claimant issued proceedings on 5 September 2017, nine years after he first had the requisite knowledge, and made an application to disapply the Limitation Act.
At first instance, District Judge Bell dismissed the application, stating that the Claimant's solicitors had been aware the "limitation clock was ticking" yet "made very little attempt to identify the insurers” between 2009 and 2014. The Claimant appealed, arguing District Judge Bell had "distorted the balancing exercise which had to be carried out" under the Limitation Act.
Mr Justice Mann found the lower court had erred. He stated "it is not possible to see what more the Claimant could realistically and sensibly have done in this period [2009 - 2014]." Four unsuccessful ELTO searches had been made, and Mr Justice Mann continued that he "did not consider that the Claimant could be in any way to blame for the delay in this period, and that it was wrong to characterise the delay as culpable on the part of the Claimant."
Reconsidering the Claimant's application to disapply the Limitation Act 1980, he found as follows:
The delays between 2008 and 2014 were excusable in the absence of an identifiable insurer initially, and thereafter, the Claimant could not be expected to carry out continuous ELTO searches. There was a culpable delay which "ought not to have happened" between 2014 and the issue of proceedings.
Whilst the "adverse effect of [the delay] will be suffered more by the Defendant", the damage to the Defendant's evidential case in terms of lost evidence had been done long before proceedings were issued. Mr Justice Mann agreed with the lower court that a fair trial was still possible.
Regarding the steps taken by the Claimant to get medical and legal advice Mr Justice Mann stated that "what Parliament requires to be taken into account is a failure to get advice promptly so as to reduce the delay in making a claim." The fact that the Claimant's medical report had been delayed "in this case is of much less significance."
The appeal was granted.
It was noted that there had been a delay in progressing the claim and that no justifiable reason had been given.
However, this was not quite close enough, to the point where it would be "unfair to extend the period". The delay had been “attributable to the solicitors and not dilatoriness on the part of the Claimant himself.” Mr Justice Mann was clear to note that "if there had been any evidence of additional prejudice to the Defendant arising out of that last period of delay, my decision would probably have been different".
What can we learn?
The recent historic abuse decision in FXF v Ampleforth Abbey Trustees provides a counterpoint to this decision. In FXF, the court refused to disapply the Limitation Act. The delay in FXF was considered to be significantly longer and was directly caused by the Claimant as opposed to their solicitors. The circumstances had seriously prejudiced the prospect of there being a fair trial, resulting in the refusal of the application.
Mr Justice Mann did acknowledge a claim may be "so delayed already that additional delay does not cause any identifiable prejudice" to a defendant. However, the court emphasised allowing a continual delay could mean that “parties and their solicitors could just become lazy” and this would compromise the good discipline required for claims.
Mr Justice Mann reiterated the judgment in the decision of Carroll v Chief Constable of Greater Manchester, where he stated that when the court exercises its discretion under section 33(1) of the Limitation Act 1980 it needs to have regard to all the circumstances of the case as well as the five matters specified in subsections 33(3)(a)-(f). Further, "the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant". Each case therefore should be assessed on its own merits and careful consideration given whether to run a limitation defence. However, practitioners should note that there has been a consistent reluctance on the part of the courts to apply limitation in cases involving asbestos, when compared to noise induced hearing loss cases for example.