Deputy District Judge Sofaer sitting at Uxbridge County Court recently denied the Claimant permission under Section 33 of the Limitation Act 1980 ‘The Act’ to disapply Section 11 of the same Act where liability had been admitted and the claim clearly had significant potential.
The matter pertained to a road traffic accident that took place on the 15 July 2015, almost five years prior to the Claimant’s application under Section 33.
The Claimant had issued earlier proceedings and had purported to effect service of those proceedings on 16th July 2018. It was the Defendant’s position that service was defective and they successfully applied to strike out the Claimant’s claim which was granted on the 20 January 2020 with the court ordering that the claim do stand struck out for want of service.
Claimant’s Second Bite of the Cherry
The Claimant issued a second Claim Form for the same action on the 2 March 2020 and served the same on the 5 March 2020. The value of the claim was pleaded up to £100,000 and the Particulars of Claim correctly pleaded that liability had previously been admitted on behalf of the Defendant.
The Claimant relied upon a significant amount of evidence from a Consultant Orthopaedic Surgeon, a Clinical Psychologist, Consultant Neurologist and a Consultant Neuropsychologist and confirmed that injuries were ongoing and updated medical evidence was required.
A Defence was filed, conceding liability but noting that this was a second set of proceedings being brought by the Claimant five years post the index accident. The Defendant pleaded the defence of limitation. The limitation period had expired on 15 July 2018, meaning that the Claimant did not issue proceedings until some 20 months later on the 5 March 2020. Further and more importantly had failed to address limitation at all; providing no explanation for the significant delay. The matter was therefore plainly statute barred and the Defendant required a determination of limitation as a preliminary issue.
The Claimant served a reply to the Defence admitting that the claim was currently statute barred pursuant to section 11 of The Act and confirming that an application pursuant to Section 33 of The Act will be made. The reply went on to plead:
- That any delays on behalf of the Claimant had made very little difference to the ability for a fair trial to take place noting that the Claimant had previously issued proceedings on the 16 July 2018 and therefore the Defendant had been on notice of the claim since that time.
- Liability had previously been admitted and remained admitted and the delay was unlikely to adversely affect the cogency of evidence obtained.
- That on the balance of prejudice with regards to the Claimant and the Defendant, the Claimant’s prejudice would far outweigh that of the Defendant. It was pleaded that the Claimant would lose her opportunity to bring a claim and that the Defendant would in effect benefit from a windfall.
An application was made on the 30 April 2020 asking the Court to exercise its discretion pursuant to Section 33 to disapply the limitation period.
The witness statement drafted by the Claimant’s solicitors in support of the application made much of the fact that liability had previously been admitted and remained admitted and expanded upon the grounds laid down in the reply to the Defence. It confirmed that the prejudice to the Claimant would be significant in that she had been caused serious injury. However, the witness statement failed to provide any evidence as to why there had been such a significant delay in issuing proceedings.
The matter went before DDJ Sofaer at Uxbridge County Court.
The Claimant was given ample opportunity to advise the Court as to why there had been such a delay and to demonstrate that the Defendant would not be prejudiced despite the fact that liability was admitted. The Claimant’s solicitors failed to provide any adequate explanation. This may be due to the fact that they were not the solicitors on record at the time of the initial set of proceedings. However, it was noted that there was no evidence before the court as to the attempted efforts made by the current solicitors to try and establish why there had been such a delay, why there was a small delay between the initial set of proceedings being struck out and the second set of proceedings being issued and or why the second set of proceedings did not bring the claim fully up to date with an up to date pleaded Schedule of Loss and up to date medical evidence.
The Judge also noted that the claim was pleaded up to £100,000 but nearly six years post-accident, the Claimant was alleging ongoing symptoms stemming from the index accident in addition to ongoing loss of earnings. Therefore there was a very real possibility that the value of the claim could significantly increase beyond the £100,000 and as at six years post-accident, the Defendant had not had the opportunity to investigate quantum at all.
The Defendants relied upon the case of McDonnell v Walker  EWCA Civ 1257 whereby the Claimant injured on the 24 April 2001, had issued proceedings on the 20 April 2004 but did not serve until the 23 August 2004, therefore being one day late. The Defendants took issue with late service and the Claimant was refused a retrospective extension of time for service.
At the time this was good law based upon the case of Walkley v Precision Forging Ltd  1WLR606. However, the House of Lords overturned Walkley in its case Horton v Sadler  1 A.C.307 and the Claimant, rather than suing his previous solicitors (served 1 day late) commenced a second action against the Defendant, now claiming a substantially larger amount, and applied to disapply the limitation period under Section 33.
In the first instance, the application was granted holding that no significant prejudice would be caused to the Defendant by the delay. It was appealed and the appeal was successful with the court reiterating that “the longer the delay the more likely and the greater the prejudice to the Defendant” and “…it should not be easy for a Claimant in a second action to obtain a disapplication of a second action under Section 33”.
The DDJ findings were that:
- The Claimant’s delay was inexcusable and they had failed to adequately explain such a delay.
- The Defendant would definitely be prejudiced in relation to meeting the case on quantum bearing in mind the delay.
Points to Note
- It is unusual for applications under Section 33 where liability has been admitted not to be granted by the court as the balancing act of prejudice always tends to fall on the side of the Claimant. However, it should not be forgotten that even in such instances, the burden lies with the Claimant to explain the delay.
- Even in cases where liability has been admitted, there is still merit in arguing prejudice to the Defendant based upon the facts of the case. In this particular case, the Claimant was alleging significant ongoing symptoms that were resulting in ongoing losses but had failed to put her house in order with up to date medical evidence in support of the same and a correctly pleaded/CPR compliant Schedule of Loss. This not only prejudices the Defendant by preventing them from investigating the claim for the past six years, but the claim has still not been presented in a way that it could be easily investigated. It was felt that if the Claimant had come to their application with their house far more in order then they may have been successful.
The Defendant was represented by Charlotte Reynolds of 12KBW.
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