Burke v Ashe Construction Ltd.

The discretion under the Limitation Act 1980, section 33, is an equitable and composite exercise. The court must weigh the balance of potential prejudice in all the circumstances, including the non-exclusive statutory factors. In a case of very substantial delay, the claimant bears a heavy burden, and potential prejudice will usually defeat an application where the defendant is blameless. The court must nevertheless assess the practical reality and whether a fair trial remains possible. Delay caused by lawyers is not automatically attributed to a claimant who acted promptly and reasonably after obtaining advice. Appellate intervention is exceptional and requires a wrong principle, material omission, or a plainly wrong decision.

The appellant suffered a serious workplace injury on 1 July 1994. The three-year limitation period expired on 1 July 1997, but proceedings were not issued until 19 June 2001. The delay resulted from successive legal advisers’ doubts, delay and possible professional failure. The appellant, who was ill-educated and illiterate, was not personally to blame.

On 5 September 2002, HHJ Harris QC exercised the discretion under section 33 of the Limitation Act 1980 and allowed the claim to proceed. The respondent appealed, arguing that the delay created actual prejudice through lost records, unavailable witnesses and faded memories. The central issue was whether the judge’s decision was plainly wrong or outside the range of reasonable disagreement.

Potter LJ gave the leading judgment, with Mummery LJ and Arden LJ agreeing. The appeal was dismissed.

1. Statutory approach. Section 33 of the Limitation Act 1980 requires an equitable, composite assessment. The court must consider the balance of potential prejudice and all the circumstances, including the non-exclusive factors in section 33(3). The task is not a mechanical comparison of hardship.
2. Appellate restraint. The principles stated in Various Claimants v Bryn Alyn Community (Holdings) Ltd (In Liquidation) and Royal and Sun Alliance plc [2003] EWCA Civ 85 applied. An appellate court should intervene only for error of principle, reliance on irrelevant matters, failure to consider relevant matters, or a decision plainly wrong and outside reasonable disagreement. It must not substitute its own view merely because it might have reached a different conclusion.
3. Delay and claimant conduct. The claimant’s personal promptness and reasonableness were relevant. The delay by his advisers was not to be counted against him in the same way as personal fault, applying the approach in Thompson v Brown [1981] 1 WLR 744 and Steeds v Peverel [2001] EWCA Civ 411. Nevertheless, the delay was exceptionally long and the claimant faced a heavy burden.
4. Prejudice and application. The court distinguished potential prejudice from actual prejudice. This was essentially a safe-system case. The accident itself was not substantially disputed, there were no eyewitnesses, and Mr Petts’ earlier detailed evidence remained available. The missing witnesses, general safety material and destroyed insurance file were unlikely materially to assist on the disputed issues. Actual prejudice was therefore slight, and a respectably fair trial remained possible. The judge’s decision lay at the extremity of the discretion but was not obviously wrong.

The appeal was dismissed. The appellant was ordered to pay the respondent’s appeal costs, and the claim was remitted to Slough County Court for a case management conference.

1. Court of Appeal (Civil Division): [2003] EWCA Civ 717 , 23 May 2003. Appeal dismissed; the order was upheld, with costs, and the claim was remitted for case management.
2. Slough County Court (HHJ Harris QC): order dated 5 September 2002 disapplying the three-year limitation period under section 33 of the Limitation Act 1980 and allowing the claim to proceed.