Smith v Ministry of Defence

Under section 33 of the Limitation Act 1980, the court must conduct a broad balancing exercise, having regard to all the circumstances. The claimant bears a heavy burden because disapplying limitation is an exceptional indulgence. Relevant considerations include the length and reasons for delay, the cogency of the evidence, the claimant’s promptness after acquiring relevant knowledge, and the advice received.

A claimant’s personal circumstances, financial position, lack of informed legal advice and loss of confidence in solicitors may together provide acceptable reasons for delay. The absence of material prejudice to the defendant is significant, although not decisive. The court may disapply the limitation period where equity between the parties requires it.

The claimant, the widow and administratrix of George Kenneth Smith’s estate, claimed damages from his former employers after his death from mesothelioma. She alleged exposure to asbestos while he worked for the defendants at RAF Conningsby between 1960 and 1962.

The parties agreed, or did not seriously dispute, breach of duty and causation. The principal issue was whether proceedings commenced in 2004 were statute-barred, or whether the court should disapply the limitation provisions under section 33 of the Limitation Act 1980.

1. The claimant succeeded on breach of duty and causation. The evidence established substantial exposure to asbestos, including crocidolite, at a time when the defendants knew or ought to have known of the serious health risk and of available precautions. The defendants failed to take reasonable protective measures. On the medical evidence, that exposure was the probable cause of the mesothelioma.

2. The primary limitation period began in May 1995, when the claimant had the requisite knowledge under sections 11(4) and 14 of the Limitation Act 1980. It therefore expired in May 1998.

3. Section 33 confers an unfettered discretion, subject to the requirement that the court have regard to all the circumstances and the matters specified in section 33(3). The claimant bears the heavy burden of showing that it is equitable to disapply the limitation provisions. The enquiry into the reasons for delay is subjective, although the acceptability of the delay remains a matter for the court.

4. The claimant’s delay was understandable and acceptable in the unusual circumstances. She had limited means, received no clear advice that she had a good claim, was discouraged by uncertainty about the evidence, and was distressed by demands for payment from her solicitors. She acted promptly whenever information gave her reason to believe that a claim might be viable, first in 1995 and again in 2002.

5. The defendants suffered no material forensic prejudice attributable to the delay after May 1998. Relevant records were likely to have been destroyed before the primary limitation period began, and witnesses were already likely to be unavailable. This was a significant factor in favour of disapplication, though not decisive. The court assumed, without deciding, that the claimant’s conditional fee agreement could count as prejudice to the defendants.

6. Balancing all the circumstances, the claimant discharged the statutory burden. The limitation provisions in section 11(4) were directed not to apply to the claim.