Skerratt v Linfax Ltd. (t/a Go Karting for Fun)

Section 32 of the Limitation Act 1980 requires deliberate concealment of a fact relevant to the claimant’s cause of action. A pre-accident disclaimer, without a deliberately false representation or post-accrual conduct, does not ordinarily conceal such a fact. Section 33 confers an equitable discretion requiring consideration of all the circumstances and a balancing of prejudice. Although the claimant’s reasons for delay are assessed subjectively, an honest explanation does not end the inquiry. Culpability, failure to obtain legal advice, evidential prejudice and the defendant’s post-accrual position may all be relevant. An appellate court should not interfere with the discretionary refusal to extend time absent misdirection or plain error.

The claimant was injured at the defendant’s indoor go-karting track on 4 April 1997. He issued proceedings on 15 January 2002, after learning in November 2001, through solicitors acting in related litigation, that he might have a claim. The limitation period had expired on 5 April.

A District Judge decided preliminary limitation issues in favour of the defendant. The claimant challenged the conclusions on deliberate concealment under section 32 and on the discretionary extension of time under section 33 of the Limitation Act 1980. The central questions were whether the disclaimer concealed a fact relevant to the right of action and whether the delay should be relieved despite the asserted availability of expert evidence.

1. Appeal dismissed. Lord Justice Waller, with whom Mr Justice Lindsay agreed, held that the District Judge was entitled to conclude that there was no concealment within section 32 of the Limitation Act 1980. The defendant’s request that the claimant sign a disclaimer did not represent, expressly or impliedly, that he had no cause of action. The defendants were not lawyers, and there was no evidence of a deliberately false representation.
2. Section 32(1)(b) is concerned with facts relevant to the cause of action, rather than the suppression of evidence relevant only to proving it. The court expressed serious doubts whether the existence of a cause of action was itself such a fact, but left that issue undecided. In any event, the alleged concealment occurred before the accident and before any cause of action accrued. No post-accrual conduct maintained or created concealment. The approach in Cave v Robinson Jarvis & Rolf [2002] 2 WLR 1107 was applied, and the narrow construction identified in Johnson v Chief Constable of Surrey was accepted.
3. Section 33 is an equitable jurisdiction involving a balancing exercise. The listed matters in section 33(3)(a)–(f) are particular factors within the wider requirement to consider all the circumstances. The claimant bears a heavy burden, and the decision is discretionary. The Court of Appeal will not interfere unless the judge misdirected himself or was plainly wrong.
4. The reasons for delay under section 33(3)(a) are assessed subjectively, but an honest explanation does not necessarily conclude the inquiry. The court may consider whether the reason was good or bad and whether the claimant was culpable. Failure to obtain legal advice may be relevant both to the reasons for delay and under section 33(3)(f). The reasoning in Coad v Cornwall and Isles of Scilly Health Authority [1997] 1 WLR 189 and Halford v Brooks [1991] 1 WLR 428 supported that approach, although the precise construction of section 33(3)(a) was left open.
5. The District Judge was entitled to find that a fair trial would be difficult after five years. The case included allegations requiring oral evidence about the briefing, instructions, marshals, equipment and circumstances of the accident. Material evidence had become difficult to obtain, and the related Taylor litigation did not resolve those individual issues. The claimant therefore failed to discharge the heavy burden under section 33. The Court of Appeal would have reached the same conclusion if it had been required to exercise the discretion itself. The comparison with Donovan v Gwentoys Ltd [1990] 1 All ER 1018 was relevant, subject to each case depending on its own facts.
6. The appeal was dismissed with costs, subject to detailed assessment if not agreed, together with an interim payment on account of costs of £4,000.

• Court of Appeal (Civil Division): The appeal from the Portsmouth County Court decision of District Judge Wilson was dismissed. The District Judge had decided the preliminary limitation points in favour of the defendant.