Fletcher v Containerbase (Manchester) Ltd.

Under Limitation Act section 33, the court must assess all the circumstances, including delay, evidential cogency, defendant conduct, disability, promptness and expert advice. The assessment is global and comparative. A claimant’s case may become materially stronger during the delay, while the defendant’s evidential position remains substantially unchanged. An appellate court should interfere with the exercise of this discretion only on established grounds, such as legal error, reliance on irrelevant matters or an unreasonable decision.

The claimant alleged that bladder cancer resulted from exposure to hazardous chemicals during his employment by the defendants. His requisite date of knowledge was found to be in summer 1995, so the limitation period expired in summer 1998. The County Court nevertheless allowed the action to proceed under section 33(1). The appeal challenged the judge’s reliance on medical evidence concerning a third employee, arguing that precautions at the workplace remained central to the defence. The central issue was whether the discretionary decision should be disturbed.

Appeal dismissed unanimously. Lord Justice Jacob gave the first judgment. Lord Justice Sedley agreed, and Lord Justice Schiemann agreed with both judgments. The respondent’s costs were assessed at £8,585.14.

1. Date of knowledge and limitation. The applicable limitation period under Limitation Act section 11 was three years from the injured person’s date of knowledge. The claimant’s knowledge was found to have arisen in summer 1995, and permission to challenge that finding had been refused. The limitation period therefore expired in summer 1998.
2. Section 33 discretion. Section 33(1) permits the court to direct that the limitation provisions do not apply where it is equitable to allow the action to proceed, having regard to comparative prejudice. Section 33(3) requires consideration of all the circumstances, particularly the specified factors. The judge had carefully considered the length and reasons for delay, evidential difficulties, the defendants’ conduct and available documentation, and the claimant’s developing medical and legal position.
3. Global assessment. The fact that the defence concerning workplace precautions remained important did not make the judge’s approach erroneous. There had been no major change in the defendants’ position during the four-and-a-half-year delay. The claimant’s position, however, had materially improved through evidence concerning a cluster of bladder-cancer cases and the resulting medical report. That was a relevant factor in the overall balance.
4. Appellate restraint. The decision was finely balanced, but the third employee’s case legitimately tipped the balance. This was precisely the kind of evaluative decision entrusted to the first-instance judge. No error of law, reliance on irrelevant matters or unreasonable exercise of discretion was shown. There was therefore no proper basis for appellate intervention.

• Court of Appeal (Civil Division): Appeal from the Manchester County Court dismissed. The Court upheld the exercise of the discretion under section 33.
• Manchester County Court: His Honour Judge Holman, on 2 July 2003, held that the claimant had acquired the requisite knowledge in summer 1995 but allowed the action to proceed under section 33(1).