Steeds v Peverel Management Services Limited

When exercising the discretion under Limitation Act 1980, section 33, a claimant is not ordinarily to be treated as personally responsible for negligent delay by his solicitors. The solicitor’s fault may nevertheless be relevant when assessing the prejudice suffered by the claimant if the claim is barred. The court must consider all the circumstances, including the length and reasons for delay, evidential prejudice to the defendant, the claimant’s conduct, and the defendant’s notice of the claim. A short post-limitation delay causing no material evidential prejudice may result in the limitation defence being treated as a windfall. An appellate court must itself exercise the discretion where the lower court’s decision proceeded on an erroneous legal basis.

The claimant slipped on ice beside premises occupied by the respondent and alleged that liquid from those premises caused the accident. His solicitors issued proceedings 49 days after expiry of the three-year limitation period under section 11 of the Limitation Act 1980. Applications under section 33 were refused by District Judge Lipton and, on appeal, by His Honour Judge Simpson.

The lower courts treated solicitor negligence and earlier periods of delay as attributable to the claimant. The Court of Appeal considered whether that approach was legally permissible and, if not, whether the claim should proceed despite the expired limitation period.

1. Appeal allowed. The Court of Appeal directed that section 11 of the Limitation Act 1980 should not apply to the claim.
2. Under section 33, the court must consider all the circumstances and the specified statutory factors. The construction of paragraphs (a) and (b) adopted in Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 1 WLR 744 remained authoritative: the relevant delay under those paragraphs is the delay after expiry of the primary limitation period. That construction had been reaffirmed in Donovan v Gwentoys Ltd [1990] 1 WLR 472.
3. There is no rule of law requiring a claimant to bear, as personal fault, the failings of his solicitors when the court assesses the claimant’s conduct under section 33. This principle was supported by Das v Ganju [1999] PIQR P260 and applied in Corbin v Penfold Metalising Co Ltd (6 April 2000, unreported).
4. The existence of a claim against solicitors remains relevant to the degree of prejudice suffered by the claimant if the limitation defence succeeds. The defendant’s prejudice must also be assessed, including whether delay made the evidence materially less cogent and when the defendant first received notice of the claim.
5. The District Judge had attributed solicitor negligence to the claimant and had misunderstood Thompson. Judge Simpson endorsed that approach and therefore proceeded on a mistaken legal basis. The Court of Appeal was required to retake the section 33 decision.
6. The claimant’s five-month delay in instructing solicitors and subsequent delay in notifying the respondent did not make him personally blameworthy on these facts. The 49-day post-limitation delay caused no material evidential prejudice. Refusing relief would have imposed substantially greater injustice on the claimant than the loss of the respondent’s limitation windfall.

• Court of Appeal (Civil Division): Allowed the appeal from the judgment of His Honour Judge Simpson and directed that section 11 of the Limitation Act 1980 should not apply.
• Mayor’s and City of London Court: His Honour Judge Simpson dismissed the claimant’s appeal on 14 August 2000.
• District Judge: District Judge Lipton dismissed the section 33 application on 31 May 2000.