Slaven v Greenwood Nursery (A Firm)

When exercising discretion to extend a limitation period under Limitation Act section 33, the court must consider all the circumstances and the matters specified in section 33(3). The relevant delay under section 33(3)(a) is the delay after expiry of the primary limitation period. A failure to focus on that period may amount to a misdirection. An appellate challenge to the exercise of discretion generally requires proof that the decision was plainly wrong or proceeded on a misdirection, but permission should be granted where there is a realistic argument that such an error occurred.

The claimant brought a personal injury claim against his former employer concerning a back injury allegedly caused by the system of work. Judge Morgan found that the claimant had sufficient knowledge of the injury in 1996, so the claim was issued outside the limitation period. A District Judge refused an application under Limitation Act section 33 to extend time.

On a renewed application, the claimant argued that the District Judge had assessed the delay before expiry of the primary limitation period rather than the delay afterwards, and had failed to take account of the defendants’ knowledge of the claim and the continuing nature of the work system.

1. The renewed application for permission to appeal was granted. The Court also granted the claimant an extension of time, with costs reserved.

2. An exercise of discretion under Limitation Act section 33 is difficult to challenge on appeal. The applicant normally must show that the judge was plainly wrong or misdirected himself or herself.

3. Section 33 requires consideration of all the circumstances, with particular regard to the matters in section 33(3)(a) to (f). The relevant delay under section 33(3)(a) is the delay after expiry of the primary limitation period. In Thompson v Brown, Lord Diplock had made that point at page 751(b).

4. There was an arguable misdirection because the District Judge appeared to have criticised delay before expiry of the limitation period, without sufficiently concentrating on the post-expiry period. The claimant had left his employment in September 1998, instructed solicitors in January 1999, and thereafter encountered changes of solicitors, legal-aid issues, medical investigations and delays while the defendants and their insurers investigated the claim.

5. The effect of the delay on evidential cogency also required reconsideration. The case concerned a system of work which had not changed, and the defendants had knowledge of the claim by at least April 1999. Those matters provided a realistic basis for arguing that the District Judge had misdirected himself, although the Court expressed concern about the present weakness of the medical and engineering evidence.

6. The Court suggested that the parties consider the Court of Appeal’s alternative dispute resolution scheme before incurring further costs.

• Court of Appeal (Civil Division): On 12 September 2002, the renewed application for permission to appeal was granted, together with an extension of time. Costs were reserved.
• District Judge: Refused the claimant’s application under Limitation Act section 33 for an extension of time.