Cressey v E Timm & Son Ltd. & Anor

For limitation purposes, knowledge of the defendant’s identity means knowledge of a person or company sufficiently identified to enable a claim to be brought. Where an employer has misinformed an employee about which company employs him, the date of knowledge may be postponed until the true employer becomes known or reasonably ascertainable. Misinformation is sufficient; deliberate concealment or breach of duty is unnecessary. The postponement is fact-sensitive and ordinarily lasts only for the period reasonably needed to make appropriate enquiries. Procedural rules permitting correction of a defendant’s name do not narrow the statutory operation of Limitation Act 1980, section 14(1)(c).

Mr Cressey suffered a workplace injury. His pay slips and employer’s correspondence identified E Timm & Son Ltd, although the actual employer was E Timm & Son Holdings Ltd. His solicitors learned of Holdings through the insurers’ response on 30 April 2001. After a claim form lapsed unserved, a further claim was issued and served, leading Holdings to argue that the claim was already time-barred. The county court held that the relevant date of knowledge was 30 April 2001, relying on Simpson v Norwest Holst Southern Ltd [1980] 1 WLR 968. The central issue was whether knowledge of the defendant’s identity arose on the date of the accident or when the claimant learned of Holdings.

The Court of Appeal unanimously dismissed the appeal. Rix LJ gave the principal judgment, with May LJ and Jonathan Parker LJ agreeing.

1. Under sections 11(4) and 14(1) of the Limitation Act 1980, the relevant three-year period runs from the later of accrual of the cause of action and the claimant’s date of knowledge. The statutory date of knowledge includes knowledge of the identity of the defendant. Section 14(3) also attributes constructive knowledge where the relevant fact was reasonably observable or ascertainable.
2. In most workplace accidents an employee will know the identity of the employer immediately. Where the employer’s identity is uncertain or has been wrongly stated, however, the date of knowledge may be postponed. The period is generally limited to the time reasonably required to make and complete appropriate enquiries. Misinformation or a dilatory response may make the result fact-sensitive. A breach of duty or deliberate attempt to conceal the identity is unnecessary.
3. Simpson v Norwest Holst Southern Ltd [1980] 1 WLR 968 properly guided the decision. This case was stronger because Mr Cressey had been positively misinformed and Limited and Holdings were separate companies. The difference was therefore one of identity, not merely a misnomer. There was no dilatory conduct by Mr Cressey or his solicitors, so constructive knowledge did not arise earlier by analogy with Henderson v Temple Pier Co Ltd [1998] 1 WLR 1540.
4. The availability of CPR 17.4(3) and CPR 19.5, permitting procedural correction of a defendant’s name, did not undermine the reasoning in Simpson or narrow section 14(1)(c). Any narrowing of the statutory provision would be a matter for Parliament.
5. Obiter: “Identity” is context-dependent and may be established by sight, description or name. In litigation it must be sufficiently specific to identify a defendant on a claim form, ordinarily requiring a name, particularly for artificial persons. A mere misnomer may nevertheless leave the claimant with the requisite knowledge.

1. Court of Appeal (Civil Division) — In [2005] EWCA Civ 763, the appeal by Holdings was dismissed.
2. Great Grimsby County Court — District Judge Robinson held on 15 July 2004 that the date of knowledge was 30 April 2001 and allowed the claim to proceed.
3. Hull County Court — HHJ Cracknell dismissed Holdings’ appeal on 8 November 2004.