Buckler v J F Finnegan Ltd

The discretion under section 33 of the Limitation Act 1980 requires an overall assessment of all circumstances and the competing prejudice caused by allowing or barring a late claim. The claimant bears the burden of showing that disapplication is equitable. Reasons for delay are examined subjectively, but their genuineness does not make them decisive. Where the claimant knew of the injury and the right to sue, delay must be assessed from that knowledge. A later misunderstanding or change in medical terminology will not normally amount to a material change of circumstances. Evidential prejudice includes difficulties in contribution and apportionment proceedings, even if primary liability is conceded.

The claimant alleged that he had been exposed to asbestos while employed by J F Finnegan Ltd and Sheffield City Council. He was diagnosed with pleural thickening in 1991 and was told that he could bring a civil claim, but proceedings were not issued until 2003, after a later reference to pleural plaques.

The Sheffield County Court held that the claimant’s date of knowledge was April 1991 and that limitation had expired in 1994, but exercised the discretion under section 33 of the Limitation Act 1980 to allow the claim against the council to proceed. The council appealed, challenging the treatment of delay, the claimant’s reasons, and prejudice to contribution proceedings. The central issue was whether it was equitable to disapply the limitation provisions.

Appeal allowed. Lord Justice Potter delivered the leading judgment. Lord Justices May and Brooke agreed.

1. The discretion under section 33 of the Limitation Act 1980 is unfettered, but must be exercised equitably by considering all the circumstances, the competing prejudice to the parties, and the checklist in section 33(3). The burden lies on the claimant. The longer the delay, the heavier the burden of providing an adequate explanation. This approach was supported by Nash v Eli Lilly & Co [1993] 1 WLR 782 and KR v Bryn Allen Community (Holdings) Ltd (in Liquidation) v Royal Sun Alliance plc [2003] EWCA Civ 85.
2. The inquiry into the reasons for delay under section 33(3)(a) is subjective, in that it concerns what the claimant knew and the reasons operating on his mind. However, after identifying those reasons, the court must decide whether they are good or bad and whether they deserve real or decisive weight in the overall balance. Coad v Cornwall and Isles of Scilly Health Authority [1997] 8 Med LR 154 was explained and applied.
3. For section 33(3)(e), the relevant period begins when the claimant knew that the defendants’ acts or omissions were capable of giving rise to an action for damages. The claimant knew this in 1991, when he was told that he had a civil claim. The later medical report and later decision to sue did not reset the starting point.
4. Where a claimant has consciously decided not to sue, a later application to proceed requires a material alteration in circumstances or in knowledge. The claimant’s misunderstanding of the terms pleural thickening, slight scarring and pleural plaques did not reflect any material change in his medical condition. The guidance in Forbes v Wandsworth Health Authority [1997] QB 402 supported that conclusion.
5. Prejudice under section 33 includes prejudice affecting contribution and apportionment between defendants. A concession of primary liability did not remove the need to consider the death of a material witness, faded recollections, unavailable records, and difficulties tracing witnesses relevant to relative responsibility.
6. The county court judge had treated the relevant delay as beginning in 2002 and had failed properly to assess prejudice in the contribution proceedings. The discretion had therefore been exercised on wrong principles and the Court of Appeal was entitled to consider the balance afresh. The claimant had not discharged the heavy burden of explaining the long delay, and it was not equitable for the claim against the council to proceed.

Lord Justice May emphasised that the claimant’s condition and medical advice had not materially changed and that the later terminology provided no compelling explanation for the delay. The order allowing the claim to proceed against the council was set aside.

• Court of Appeal (Civil Division) [2004] EWCA Civ 920: allowed the council’s appeal and set aside the order permitting the claim to proceed against it.
• Sheffield County Court: on 15 December 2003, held that the claimant’s date of knowledge was April 1991, but exercised the discretion under section 33 of the Limitation Act 1980 in his favour. Permission to appeal was initially refused but was granted by Lord Justice Scott Baker on 4 February 2004.