McGhie v British Telecommunications Plc

When deciding whether to disapply the limitation period for a personal injury claim under section 33 of the Limitation Act 1980, the court must balance the prejudice to each party. The claimant bears the burden of showing that the prejudice caused by losing the claim outweighs the prejudice to the defendant.

Proportionality includes the relationship between the claim’s likely value and the cost of litigation. It also requires consideration of the claim’s apparent strength. A modest and weak claim, substantial unexplained delay and impaired defence evidence may together justify refusing to disapply limitation.

The claimant suffered a back injury while employed by the defendant in August 1998. He commenced proceedings for negligence and breach of statutory duty in September 2003. The claim was brought more than two years after expiry of the primary three-year limitation period under section 11 of the Limitation Act 1980.

HHJ Thompson in Colchester County Court directed under section 33 that the limitation provision should not apply. The employer appealed. The central issue was whether the judge had applied the statutory balance of prejudice and properly evaluated proportionality, evidential prejudice and the apparent strength of the claim.

1. Appeal allowed and claim dismissed. May LJ held, with Buxton LJ agreeing, that the county court had not applied the statutory test under section 33 of the Limitation Act 1980. Its decision rested essentially on the claimant’s devotion to his work, his genuine ignorance of a possible claim and its view that he had acted reasonably. Those matters did not constitute the required balance of prejudice.
2. The claimant bore the burden of showing that the prejudice caused by losing his opportunity to establish the claim outweighed the prejudice which disapplication would cause the defendant. The judge had found that delay had made the defendant’s evidence less cogent, but had not identified any sufficient countervailing matter on the claimant’s side of the balance.
3. Proportionality under section 33 includes the relationship between the likely value of the claim and the legal and other costs of pursuing it. It also has regard to the apparent strength of the claim. The loss of a large and well-supported claim involving serious, lasting injury may cause substantial prejudice. Conversely, the expense of litigating a modest and apparently weak claim may weigh against disapplication. The observations in Robinson v St Helens Metropolitan Borough Council [2003] PIQR 128, approved in Adams v Bracknell Forest Borough Council 2004 UKHL 29, were to be understood in that sense.
4. The county court had referred to proportionality but had not evaluated it. It had also omitted the submissions concerning the weakness of liability. Those failures meant that its reasons could not sustain the discretionary decision, so the Court of Appeal exercised the discretion afresh.
5. The balance favoured the defendant. The delay exceeded two years and lacked a persuasive explanation once constructive knowledge was accepted. The defendant had suffered evidential prejudice. The pleaded liability case was thin, and the contemporary incident report tended to show that proper procedures had been followed. The claim was modest and its prosecution would entail disproportionate legal costs. The claimant’s operation had been successful and the evidence did not indicate enduring effects on health or employability.

1. Court of Appeal (Civil Division): The employer’s appeal was allowed. The section 33 discretion was exercised afresh, the limitation provisions were not disapplied, and the claim was dismissed: [2005] EWCA Civ 48.
2. Colchester County Court: HHJ Thompson directed under section 33 of the Limitation Act 1980 that the primary limitation provision should not apply. That decision was set aside.