Burgin v Sheffield City Council & Anor

In deciding whether to disapply a personal-injury limitation period under section 33 of the Limitation Act 1980, the claimant bears the ultimate burden of showing that it is equitable to do so. The defendant bears the evidential burden of showing that delay has made the evidence materially less cogent.

The central consideration is whether delay has impaired the defendant’s ability fairly to defend the claim. The loss of a limitation defence alone carries little weight. An appellate court may interfere with the resulting discretionary decision only for an error of principle or where it is plainly wrong.

The claimant alleged that he had developed vibration white finger through the use of vibratory tools during successive employment by the Council and by the second defendant. His claim against the second defendant was in time, but the County Court held that his claim against the Council was outside the primary limitation period.

His Honour Judge Swanson nevertheless exercised the discretion under section 33 of the Limitation Act 1980 to permit the claim against the Council to continue. The Council appealed, contending that the judge had erred in principle or had been plainly wrong, principally because of alleged evidential prejudice and difficulties in apportioning responsibility between the two employers.

The central issue was whether the County Court’s discretionary balancing exercise should be disturbed.

Appeal dismissed. Clarke LJ, with whom Wall and Ward LJJ agreed, held that the County Court judge had neither erred in principle nor reached a decision outside the permissible ambit of discretion.

1. An appellate court does not re-exercise a first-instance discretion merely because it might have balanced the factors differently. It intervenes only for an error of principle or a plainly wrong result, namely one outside the generous ambit within which reasonable disagreement is possible. That was the governing approach derived from G v G (Minors Custody Appeal) [1985] 1 WLR 647.

2. For section 33, the claimant bears the ultimate, and heavy, burden of showing that disapplication is equitable. That did not prevent the judge from taking account of the Council’s failure to adduce evidence showing that the delay had made its evidence less cogent. The evidential burden on that issue lay with the Council.

3. The judge was entitled to regard the effect of delay upon the Council’s ability to defend as critical. The claimant’s delay, his lack of promptness and his limited steps to investigate his position weighed against him. The statutory factors concerning the Council’s conduct and any disability were irrelevant. However, the Council had conceded that causation could still be proved and that it would face very little prejudice if it were the sole defendant.

4. The alleged loss of evidence from a deceased supervisor was not shown to cause significant prejudice. Other witnesses remained available to address working conditions and vibration exposure. The proposed difficulty in apportioning responsibility between the two employers did not establish unfairness, since apportionment would arise in the continuing action against the second defendant in any event. In the absence of convincing evidence of prejudice, the judge was entitled to allow the claim against both defendants to proceed.

• Court of Appeal (Civil Division) — dismissed the Council’s appeal and upheld the discretionary disapplication of the limitation period: [2005] EWCA Civ 482.

• Sheffield County Court (His Honour Judge Swanson) — held the claim against the Council to be outside the primary limitation period, but exercised the section 33 discretion under the Limitation Act 1980 to allow it to continue.