Parsonage v Fastway Steel Ltd

Section 33 of the Limitation Act 1980 requires an equitable balancing exercise, having regard to all the circumstances and the statutory factors. The claimant bears a heavy burden of persuasion, but the decision remains one of evaluative judgment. The effect of delay on the defendant’s ability to defend is important, though it is not automatically decisive. Where the central causation issue depends principally on expert evidence, deterioration in eyewitness recollection may cause limited prejudice. A claimant’s conscious exaggeration of symptoms is a relevant factor, but its weight depends on the circumstances and it does not create an absolute bar to relief. An appellate court should respect a first-instance decision within the range of reasonable conclusions.

The claimant, an employee and driver, was seriously injured in a multi-vehicle collision in September 1992. He alleged that defective tyres supplied by his employer caused or aggravated the collision. Proceedings against the employer were issued in May 2000, outside the primary limitation period.

The High Court, on a preliminary issue, held that the claim was time-barred but directed under section 33 of the Limitation Act 1980 that the limitation provisions should not apply. The employer appealed against that direction. The claimant served a respondent’s notice concerning the date of knowledge, but the Court of Appeal found it unnecessary to determine that issue. The central question was whether the section 33 discretion had been properly exercised.

1. Appeal dismissed. The direction under section 33 of the Limitation Act 1980 was upheld, with costs, including the costs of the cross-appeal.
2. The claimant bears a heavy burden of persuasion when seeking the exceptional disapplication of the limitation provisions. Nevertheless, section 33 requires the court to decide whether it is equitable to allow the action to proceed by balancing prejudice to the claimant against prejudice to the defendant, while considering all the circumstances and the factors in section 33(3).
3. The judge was entitled to treat the effect of delay on the defendant’s ability to defend as particularly important. On the evidence, the case did not depend wholly on eyewitness testimony. The material issue was whether the van had braked or skidded, and the existing witness statements substantially addressed that issue. The remaining causation question depended principally on expert evidence. The judge’s conclusion that the delay had not caused significant prejudice was therefore open to him.
4. The claimant’s admitted conscious exaggeration of his injuries was a relevant consideration. It could affect the assessment of medical evidence, credibility and compensation, but its weight varied with the circumstances. It did not establish a rule preventing relief under section 33. Here, the exaggeration had been exposed and the medical evidence was not materially undermined.
5. The judge was entitled to allow the case to proceed despite submissions that it was weak and that contributory negligence might reduce any recovery. The appellate court should not interfere with a discretionary conclusion that was legally correct and not plainly wrong.

• Court of Appeal (Civil Division): Appeal from the High Court judgment of His Honour Judge Behrens QC at Leeds on 27 April 2001. Appeal dismissed with costs.