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Should the court's refusal to exercise its discretion under section 33 of the Limitation Act 1980 to allow the claimant to bring his claim outside the time limits for personal injury claims, be seen as heralding a new dawn in the judicial approach to discretion under section 33of the 1980 Act?
2 May 2013
High Court, Queen's Bench Division
The claimant had been a dockworker between 1947 and 1967 and his responsibilities had included unloading cargo, including asbestos, to which it is likely that he had been exposed during his employment. In 2002 he was diagnosed with terminal lung cancer. Although doctors questioned him at the time of diagnosis about his work history, he did not make any connection between his illness and work history until after reading a newspaper advertisement from a firm of solicitors in 2009, which resulted in him contacting them and pursuing a claim.
The court accepted that the claimant did not acquire actual knowledge for the purpose of s.14 until 2009 when he read the advertisement. Following the approaches in Adams v Bracknell Forest BC  1 AC 76 and Johnson v Ministry of Defence  P.I.Q.R P7 however the judge went onto consider whether a reasonable person in his position would have sought advice earlier. Allowing some time to get over the shock of the diagnosis and the poor prognosis initially, the judge felt that his condition being so significant and the hazards of asbestos being known generally, it would have been reasonable to expect the claimant to make further enquiries about the possible cause of his cancer. If he had done so he would have acquired the necessary knowledge by the middle of 2003. The primary limitation period then expired in mid 2006.
In considering whether to exercise its discretion under Section 33 the court examined the additional delay from 2006 to the issuing of the claim form in May 2012, against the background of difficulty the defendant would have encountered in any event in defending an action where the events took place so long ago. The judge also pointed to the fact that although reports were obtained within nine months of the claimant instructing solicitors, it had taken a further 2 years and 3 months before proceedings were brought.
The factual matrix was important as causation depended upon the claimant establishing that he had been exposed to a sufficiently large quantity of asbestos over his working life at the docks (1947 -1967) to meet international dosage thresholds, as x-rays had not shown evidence of asbestosis in his lungs. On these critical aspects the claimant's memory was impaired and there was little that could be produced by way of documentary evidence. The judge therefore held that there was ‘considerable force' in the defendant's submission that the claimant had a weak case for being able to demonstrate that his exposure was above the relevant criteria.
The fact that the claim was a relatively moderate value (the claim form was limited to £50,000) was also a relevant consideration. A significant amount would already have been spent and there was a disproportion between the likely recoverable costs and litigation costs, which was a further factor to be taken into account.
The claimant therefore faced a number of difficulties. His claim was dependent upon establishing facts, when his own recollection of events (which was crucial) had understandably receded. The claim was of modest value and the prospects of proving negligence were of dubious merit given that much of the case turned upon the factual evidence. These factors had to be weighed against the substantial prejudice to the defendant who would incur substantial costs in defending any action at trial.
It seems unlikely that this decision represents a change in the more liberal approach to s 33 which has accompanied the arguably stricter approach to determination of a claimant's date of knowledge under s 14 of the 1980 Act, since the decision of the Supreme Court in A v Hoare  1 AC 844.
The case highlights the need for expediency when solicitors are instructed after expiry of the primary limitation period as the court may not be forgiving about any further delays occurring after this time.
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