Griffin & Ors v Clwyd Health Authority & Ors

A claimant’s date of knowledge for personal-injury limitation is determined by actual state of mind, not by reference to a hypothetical reasonable litigant. A firm belief that significant injury is attributable to working conditions constitutes knowledge even where medical advice is conflicting; mere suspicion does not. Knowledge does not require all evidence needed to commence proceedings.

On an application under section 33, the claimant must show that disapplication is equitable and explain the delay. Unexplained delay, diminished evidential cogency, lost documents, dispersed witnesses and lack of notice may justify refusal. A court may proceed on affidavit evidence where that procedure was consented to and was not properly challenged.

Three hospital employees brought personal-injury claims against a health authority and pest-control contractors. They alleged illness caused by pesticide exposure at Broughton Hospital. Proceedings were issued on 14 January 1997. The claimants asserted that relevant knowledge arose in August 1994, or alternatively sought disapplication of the limitation period under section 33 of the Limitation Act 1980.

A consent order required the preliminary limitation hearing to proceed on affidavit evidence without oral evidence or cross-examination. Mr R D Machell QC, sitting as a Deputy High Court Judge, found that the first two claimants had acquired knowledge by about the end of 1991 and that their claims were statute barred. He refused to exercise the section 33 discretion because the delay was inadequately explained and had affected evidential cogency. The appeal challenged the affidavit procedure, the date-of-knowledge finding and the refusal to disapply the limitation period.

1. Appeal dismissed. Buxton LJ gave the leading judgment. Parker LJ and Gibson LJ agreed. The appeal was dismissed with costs.
2. The limitation hearing had been ordered by consent to proceed on affidavits, without further affidavits or oral evidence. The appellants did not make an effective application to vary that order. The Deputy Judge was entitled to adhere to it. His decision to permit cross-examination of the third claimant was made to enable the defendants to investigate her case, not to give her an evidential advantage. There was no procedural unfairness to the first two claimants.
3. For section 14 of the Limitation Act 1980, the court must examine the claimants’ actual state of mind and beliefs rather than the viewpoint of a hypothetical reasonable litigant. The distinction in Spargo and Sniezek v Bundy (Letchworth) Ltd was material. A firm belief that significant injury was attributable to working conditions constituted knowledge, notwithstanding contrary medical advice. The first two claimants had reached that state of belief by about the end of 1991. The later confirmation from Dr Monro did not postpone the date of knowledge. The absence of evidence needed to issue proceedings did not prevent knowledge under section 14, although it could be relevant to section 33.
4. The burden under section 33 rested on the claimants. Their delay required explanation, and the court rejected the suggested principle that objectively reasonable delay need not be explained. The evidence concerning the period from 1994 to 1997 was vague and inadequate, including the alleged involvement of solicitors.
5. In assessing evidential cogency under section 33(3)(b), the Judge was entitled to infer prejudice from the closure of the hospital, dispersal of staff, organisational change, destruction or loss of documents, lack of notice to several defendants and the need to investigate causation and negligence. A pedantic inventory of missing documents was unnecessary. The prejudice was relevant to the claims against all defendants.
6. The Judge was entitled to consider alternative remedies. Legal aid was not itself a factor requiring disapplication of the limitation period or creating an Article 6 problem, and the Judge had not treated it as significant. The possibility of a remedy against solicitors was not relied on as a decisive reason. The formal order was dismissal of the appeal with costs, subject to detailed assessment of the appellants’ assisted costs and the contribution payable by the Legal Services Commission.

1. Court of Appeal (Civil Division): On 14 May 2001, dismissed the appeal with costs. The Court upheld the Deputy High Court Judge’s procedural decision, date-of-knowledge finding and refusal to disapply the limitation period.
2. Queen’s Bench Division, Manchester District Registry: Mr R D Machell QC, sitting as a Deputy High Court Judge, determined a preliminary limitation issue. He found that the first two claimants had knowledge by about the end of 1991 and declined to exercise the discretion under section 33 of the Limitation Act 1980.
3. District Judge Bootland: Made a consent order requiring the limitation issue to be tried on affidavit evidence without further affidavits or oral evidence.