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PI and Civil Litigation

Law - practice - procedure

16 AUG 2013

Patricia Melanie Nicholas (Executrix of the estate of Doris Timbrell deceased) v Ministry of Defence [2013] EWHC 2351 (QB)

Limitation - s 33 Limitation Act 1980 - date of knowledge

Summary

The claimant was successful in asking the court to override the limitation period in a claim where her mother suffered industrial disease which was not known to her until 1 year and 3 months before her death. Court proceedings were only issued some 3 years later.

31 July 2013

High Court, Queen's Bench Division

Judge Burrell QC

Proceedings had been issued by the claimant, the daughter and executrix of the estate of Doris Timbrell, deceased who developed asbestosis following exposure to asbestos after working for Baxters of Blackburn in assembling gas masks and fitting filters into the masks. 

In 2004 the deceased had been informed of a potential claim against the Ministry of Defence but she was too unwell to do anything about it. The claimant did nothing until 2 years after her mother's death. Her mother had died in 2008. Date of knowledge was 2004.  Therefore statutory limitation had expired in 2007. The claimant sought legal advice in 2009 and proceedings were issued in May 2012.  Liability was admitted subject to limitation.

Section 33 of the Limitation Act 1980 affords the court discretion to allow a claim to proceed outside of the normal time limits where it would be equitable and where it would not prejudice the defendant, taking into account all of the circumstances of the case.

It was the claimant's evidence that her mother was too ill to bring the claim. The court sympathised with the claimant because her mother was made unwell due the effects of her injury caused by the defendant. The action was allowed to proceed out of time on the basis that it was equitable.

The court further held that the defendant had not been prejudiced. This being a factor which would have been given considerable weight in the decision making process. The claim was allowed to proceed because the delay did not in any way impact on the defendant's ability to resist the claim.

Comment

Generally there must be very good reason for the court to override the time limits that apply when bringing claims. According to Hartley v Birmingham City District Council [1992] 1 WLR 968 one of the single most important factors concerns whether the delay in any way disadvantaged the defendant in being able to defend proceedings. This is considerably high burden for claimants and courts have often decided against them on this issue.

Thankfully in this case, the court gave due consideration to EB v Haughton [2011] EWHC 279 (QB) which says that while prejudice is a factor to be given considerable weight, it does not trump any other factor which the court must have regard to when exercising its discretion.

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