Kew v Bettamix Ltd & Ors

Under Limitation Act 1980 section 33, the claimant bears the burden of showing that disapplication of primary limitation is equitable. The discretion remains unfettered. Describing relief as an exceptional indulgence does not impose a heightened test beyond its exceptional character.

The court must balance all relevant circumstances, including evidential prejudice, the parties’ conduct and proportionality. An employer’s failure to arrange a recommended medical review may be relevant conduct under section 33(3)(c), even though it occurred before any claim was intimated. Proportionality creates no fixed minimum value for an industrial-injury claim. On costs, a successful claimant may be denied part of the costs where an unsustainable issue materially enlarged the hearing.

The claimant had used vibrating equipment during long employment and later developed hand-arm vibration syndrome. An occupational physician wrote in March 2000 that his symptoms might be attributable to vibration at work, and confirmed the diagnosis in July 2000. Proceedings were issued in April 2004.

At Kingston-upon-Thames County Court, Judge Williams held that the primary limitation period had expired, but disapplied it under section 33 of the Limitation Act 1980. She ordered the defendants to pay all costs of the preliminary limitation issue. The defendants appealed both the exercise of the section 33 discretion and the costs order. The central questions were whether the discretionary extension should stand and whether costs should reflect the claimant’s failure on primary limitation.

1. The appeal on limitation was dismissed. The court would have fixed 29 March 2000 as the date of constructive knowledge. The physician’s letter then disclosed a real possibility that working conditions had caused the symptoms and required a reasonable person to investigate. Earlier symptoms and concern about them did not, on the evidence, establish sufficient knowledge. The precise four-month difference from the judge’s July 2000 date did not affect the section 33 balance.

2. The section 33 discretion was unfettered, although the claimant had to show that disapplication was equitable. The expression “exceptional indulgence”, drawn from KR v Bryn Alyn Community Ltd [2003] QB 1441, meant only an exception to the ordinary limitation rule. It did not add a more demanding requirement.

3. The judge was entitled to find little demonstrated prejudice to the defendants’ evidence. They had not shown that relevant witnesses or records were unavailable. Their failure to arrange the one-year review specifically recommended by their occupational physician was relevant under section 33(3)(c). That provision was not confined to forensic conduct after a claim had been intimated. Insofar as Hodgson v Imperial Tobacco Ltd suggested otherwise, the court disagreed.

4. Proportionality did not set a financial threshold below which section 33 relief could not be granted. It required an assessment of the claim’s likely value and strength against the legal, manpower and other costs of pursuing it. The judge’s discretionary conclusion was therefore open to her.

5. The costs appeal was allowed. Although appellate intervention in costs is rare, the judge had not properly balanced the claimant’s unsuccessful and unsustainable primary-limitation case against the evidence required in any event. The order was varied: the defendants were to pay 65% of the claimant’s costs of and incidental to the preliminary limitation issue. Waller LJ agreed and added that conditional-fee and after-the-event insurance considerations could not justify advancing unarguable points.

• Court of Appeal (Civil Division). By [2006] EWCA Civ 1535, dismissed the appeal against disapplication of limitation but allowed the costs appeal and varied the order to 65% of the claimant’s costs.
• Kingston-upon-Thames County Court. Judge Williams held that primary limitation had expired, disapplied it under section 33 of the Limitation Act 1980, and ordered the defendants to pay all costs of the preliminary issue.