Margolis v Imperial Tobacco Ltd

Under section 33 of the Limitation Act 1980, the court must assess all the circumstances and balance the prejudice to the claimant against the prejudice to the defendant. The discretion is broad, but an applicant whose claim is substantially out of time faces a heavy task. The court may consider the whole period of delay from the relevant date of knowledge, not merely delay after expiry of the primary limitation period. Important considerations include the prospects of success, causation, possible contributory negligence, the reasons for delay, and the likely loss of evidential cogency. The Court of Appeal will interfere only where the discretion was exercised on a wrong principle, by reference to irrelevant matters, in disregard of relevant matters, or was plainly wrong.

Mr Margolis brought a negligence claim against tobacco companies, alleging that smoking their cigarettes caused his lung cancer. His claim was issued substantially outside the limitation period. Wright J refused under section 33 of the Limitation Act 1980 to disapply the limitation provisions and later dismissed the claim as statute-barred.

Mr Margolis, appearing without legal representation, sought permission to appeal. He argued that his personal circumstances, the seriousness of his injury and the alleged conduct of the tobacco companies made it equitable for the claim to proceed. The central issue was whether Wright J had exercised the statutory discretion on a legally permissible basis.

Application dismissed. Evans LJ agreed with May LJ's reasons.

1. Section 33 of the Limitation Act 1980 gives the judge a discretion to disapply the limitation provisions where that is equitable, having regard to the prejudice to both parties and all the circumstances, including the matters specified in section 33(3).
2. The judge was entitled to take an overall and broad view of the claimant's prospects of success without deciding the merits. The pleaded case was speculative and involved substantial difficulties concerning duty, breach, causation, consent or assumption of risk, and contributory negligence.
3. For section 33(3)(a), the relevant delay was not confined to the period after expiry of the primary limitation period. The court could and should consider at least the whole period from the date of knowledge for section 14 purposes. May LJ approved Wright J's reliance on Donovan v Gwentoys Ltd [1990] 1 W.L.R. 472.
4. The very substantial delay, the absence of material contribution by the defendants, the speculative basis of primary liability, causation difficulties, possible reductions for contributory negligence, and the likely loss of evidential cogency cumulatively justified refusal of relief.
5. The Court of Appeal would not interfere because Wright J had addressed the statutory factors, considered the relevant prejudice, and had not relied on irrelevant matters. His decision was not plainly wrong. Mr Margolis's financial hardship and the inequality of resources did not justify deciding the substantive issue contrary to the law.

The application for permission to appeal was dismissed. The request for permission to appeal to the House of Lords was refused because the Court of Appeal had no power to grant it.

• Court of Appeal (Civil Division): dismissed the application for permission to appeal against Wright J's decisions and orders.
• High Court of Justice, Queen's Bench Division: Wright J refused to disapply the limitation provisions under section 33 of the Limitation Act 1980 and dismissed the claim as statute-barred.