Khan v National Union Of Rail, Maritime & Transport Workers & Anor

For limitation purposes, a claimant must show when the cause of action accrued and when the statutory knowledge requirements were satisfied. Under section 14A of the Limitation Act 1980, constructive knowledge may arise where reasonable enquiries would have disclosed the relevant facts. A claimant cannot postpone time merely because the consequences of a failure remain uncertain or because later correspondence continues to suggest that a claim might succeed. A new concealment argument will not ordinarily be entertained on appeal where the facts have not been investigated and the opposing party has had no opportunity to test the evidence.

The appellant, who had been injured in an assault at work, alleged that her trade union and its solicitors negligently failed to submit or pursue an application to the Criminal Injuries Compensation Board. Her claim for damages, commenced in February 1997, was dismissed as statute-barred. The Kingston County Court dismissed an appeal on a preliminary issue, holding that the primary limitation period expired in September 1992 and that section 14A did not extend time sufficiently.

On further appeal, the appellant relied on sections 14A and 32(1)(b) of the Limitation Act 1980. The central issues were when damage occurred, when she had or ought reasonably to have had the relevant knowledge, and whether concealment could postpone limitation.

1. Appeal dismissed. The claim, as pleaded, was that the respondents failed to submit the application within the applicable period. The court therefore considered the limitation consequences of that pleaded failure, rather than any unpleaded continuing duty to preserve evidence or pursue a late application.
2. The primary limitation period ran from the date on which the relevant damage accrued. The judge was entitled to conclude that the damage occurred when the three-year period for making the Criminal Injuries Compensation Board application expired, producing a six-year limitation period which expired in September 1992.
3. The section 14A issue turned on whether the appellant could show that she could not, with reasonable diligence, have discovered that an application had not been submitted. She had made no enquiries after 1984 or 1985 until about 1992. The absence of progress, the information supplied in November 1992, and the solicitors’ letter in June 1993 should reasonably have prompted enquiries. The appellant therefore had, or ought to have acquired, the relevant knowledge before proceedings were issued.
4. The court refused permission to rely on section 32(1)(b). The concealment allegation had not been investigated. The first respondent had not had an opportunity to cross-examine material witnesses, and there was no adequate evidence that the second respondents had been instructed in 1983. Applying the approach stated in The Tasmania (1890) 15 AppCas 223, the new point could not fairly be determined for the first time on appeal.
5. The order dismissing the claim as statute-barred was correct. The appeal was dismissed, an order was made under section 11 of the Access to Justice Act, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): appeal from the Kingston County Court dismissed.
• Kingston County Court: His Honour Judge Bishop dismissed an appeal from the preliminary judgment of Deputy Judge Shelton and held that the claim was statute-barred.
• Kingston County Court: Deputy Judge Shelton determined the preliminary limitation issue on 18 June 1998.