Young v Western Power Distribution (South West) Plc

The Court of Appeal applied the House of Lords decision in Walkley v Precision Forgings Ltd [1979] 1 WLR 606 to a widow's derivative claims brought under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. The court held that where a deceased had previously issued timeous proceedings in respect of the same cause of action which were later discontinued, section 33 of the Limitation Act 1980 did not confer a discretion to disapply the primary limitation provisions so as to permit a second action save in the limited circumstances amounting to an estoppel or other truly exceptional case. The judges concluded that neither estoppel nor such exceptional circumstances existed on the facts and that the respondent’s Fatal Accidents Act and 1934 Act claims were therefore time-barred by sections 11 and 12 of the Limitation Act 1980. The court also rejected the respondent’s Article 6 European Convention argument, holding that the Walkley principle did not breach the right of access to the court.

Background and parties. The deceased, Barry Young, had worked for the appellant employer and suffered an asbestos-related illness. He and later his widow, Jean Young, brought proceedings in respect of alleged industrial disease. The first action was issued by the deceased within the primary three-year personal injury limitation period but was discontinued in January 1997 after developments in the expert evidence. The deceased died on 2 March 1999; post-mortem evidence established mesothelioma and the widow brought fresh proceedings in 2002.

Nature of the claims and relief sought. The widow advanced two heads of claim: (i) a dependency claim under the Fatal Accidents Act 1976 and (ii) a survival/personal injury claim under the Law Reform (Miscellaneous Provisions) Act 1934. She sought directions that the court exercise its discretion under section 33 of the Limitation Act 1980 to disapply the time limits in sections 11 and 12 so that her claims could proceed.

Procedural posture. The judge below (His Honour Judge Mackay) held that a section 33 discretion existed and exercised it in the widow's favour. The employer appealed to the Court of Appeal.

Issues framed by the Court.

• Whether the Walkley principle applies to derivative claims of this nature.
• If Walkley applies, whether exceptional circumstances or estoppel disapply the principle so that section 33 can be invoked.
• Whether application of Walkley would breach the respondent's Article 6 right of access to court.
• Assuming a discretion arose, whether the judge below properly exercised it.

Court’s reasoning and conclusions. The Court analysed the interplay between the Fatal Accidents Act 1976, the Law Reform (Miscellaneous Provisions) Act 1934 and the Limitation Act 1980 (notably sections 11, 12 and 33). It concluded that Walkley establishes that where a claimant has started an action within the primary limitation period, section 33 does not provide a discretionary remedy to cure the consequences of a later discontinuance or dismissal of that action except in the very narrow circumstances amounting to an estoppel or other 'most exceptional' cases. Applying that principle, the court found that (i) the widow’s Fatal Accidents Act claim was caught by section 12(1) and could not be rescued by section 33 because the deceased’s inability to maintain a second action was, in substance, caused by the prior timeous proceedings (the Walkley principle); and (ii) the 1934 Act survival claim likewise failed because no cause of action vested in the deceased at his death that could be revived for the estate. The court rejected arguments that the employer’s conduct was such as to amount to estoppel or other exceptional circumstances, and rejected the contention that the Walkley rule violated Article 6, relying on Strasbourg precedent and the domestic margin of appreciation. The appeal was allowed and the judge’s order set aside.

Appeal allowed. The Court of Appeal held that the Walkley principle applies so that where a deceased had timely commenced proceedings and those proceedings were later discontinued, section 33 of the Limitation Act 1980 does not ordinarily enable a second action to be brought; only in cases amounting to estoppel or other truly exceptional circumstances could that rule be displaced. On the facts there were no such exceptional circumstances and the respondent's Fatal Accidents Act 1976 and 1934 Act claims were time-barred by sections 11 and 12 of the Limitation Act 1980. The Article 6 argument failed.

Appeal from the High Court of Justice, Queen's Bench Division (His Honour Judge Mackay) where a preliminary issue had been decided in favour of the respondent. The Court of Appeal (Simon Brown LJ, Mummery LJ and Laws LJ) allowed the employer's appeal. Neutral citation: [2003] EWCA Civ 1034.