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 EWCA 1586 (CA), Longmore, McFarlane, Vos LLJ
11 December 2013
An appeal against the first instance decision for an extension of time under s 33 was refused where the delay made it difficult for the court to determine liability.
The claimant sustained a back injury whilst engaged on a medical training course run by the second defendant. The claimant instructed solicitors to act for him in a personal injury claim who served a photocopy of the claim form which did not comply with CPR 6.3(1). The claimant's solicitor application for an extension of time for service was dismissed. The claimant instructed new solicitors who issued a new claim form out of time and served this with an application to disallow the 3 year limitation period. This application was dismissed and the claimant appealed.
The claimant submitted that the Judge at first instance was wrong: (1) to rely on McDonnell v Walker  EWCA Civ 1257 as it was inconsistent with Aktas v Adepta  EWCA Civ 1170 which was to be preferred, (2) to take account of whether the claimant might have a good claim against his former solicitors, (3) to find any prejudice to the defendants arising after the expiry of the limitation period (4) if point 3 was correct, was wrong to take account of any prejudice before limitation expired.
The Court found: (1) There was no conflict between the two cases. In McDonnell, the Court were saying it should not be too easy to obtain a disapplication of the limitation period (given CPR 7.6) and in Aktas it was found it should not be too difficult either. Essentially, the question should be, is it fair and just in all the circumstances to expect the defendant to meet the claim on its merits, not withstanding the delay in commencement? Reasons for the delay should be considered: was it for an excusable reason or in the opposite direction, are the reasons not good ones? In addition, did the defendant know of a claim and have the opportunity to investigate and collect evidence. (2) Following Donavon v Gwentoys  1 All ER 1018, a judge could (and usually should) take into account of whether a claim could be made against the previous solicitors. (3) Although the defendant had had the opportunity to investigate the claim, the delay after the expiry of limitation was important, not just because documentation in this particular case had been lost, but also because it was well known that memories become less and less reliable and the staler the action becomes. The appeal was dismissed.
Whilst the Court here put some emphasis on the fact that, as valuable documents to this case had been lost post limitation (meaning there was prejudice to the defendants), in the wake of the Mitchell decision, it is not surprising that the Court reached the conclusion that they did.