Richardson v Watson & Anor

Commencing a fresh action after discontinuing an earlier action, to cure a failure to give the Motor Insurers’ Bureau timely notice, is not ordinarily an abuse of process. Where the fresh action is out of time, section 33 of the Limitation Act 1980 permits the court to consider an extension by reference to all the circumstances. An earlier in-time action does not itself bar that discretion, following Horton v Sadler [2006] UKHL 27.

The court should assess actual prejudice, the parties’ conduct, evidential cogency and whether related claims will proceed on the same issues. A fair trial remaining possible, and the absence of prejudice to the MIB, supported allowing the claim to proceed.

The appellant’s husband died in a collision with a car driven by an uninsured motorist. The appellant’s first claim failed because timely notice was not given to the Motor Insurers’ Bureau. She discontinued it and issued a second claim outside the three-year limitation period, this time giving proper notice.

The Middlesbrough County Court struck out the second action as an abuse of process. It also held, relying on Walkley v Precision Forgings Ltd, that section 33 could not extend time and, alternatively, would have refused an extension. Before the appeal was heard, the House of Lords decided Horton v Sadler and departed from Walkley. The issues were whether the second action was abusive and whether time should be extended.

1. Abuse of process. The judge was wrong to strike out the second action. Where a claimant has failed to give timely notice under the MIB Agreement, and the MIB will not overlook the failure, the claimant may ordinarily discontinue the proceedings and commence fresh proceedings with proper notice. That course will usually remove any prejudice caused by late notice. The approach was consistent with Silverton v Goodall and MIB [1997] PIQR 451 and with the reasoning identified in Horton v Sadler [2006] UKHL 27.
2. Limitation. Horton v Sadler had held that commencement of an earlier action within the limitation period did not prevent reliance on section 33 in relation to a later action commenced out of time. The reasoning in Walkley v Precision Forgings Ltd [1979] 1 WLR 606 was no longer good law.
3. Exercise of discretion. Section 33(3) of the Limitation Act 1980 requires consideration of all the circumstances, including delay and its reasons, evidential cogency, the defendant’s conduct, disability, promptness and expert advice. The judge had proceeded on the mistaken basis that all claims were out of time. The children’s claims were in time and would proceed on the same issues, so the discretion had to be exercised afresh.
4. The MIB had suffered no prejudice from the late notice. It had defended the merits and judgment in default was not entered until it had been discharged. Although there was some force in the criticism of the initial delay, the appellant was within time when the first proceedings were issued, and the subsequent delay was substantially attributable to the MIB’s limitation argument and the uncertainty created by Walkley. The evidence permitted a fair trial, and any deterioration was more likely to affect the eye-witness evidence than the impact calculations. It was therefore equitable not to apply section 12 and to allow the appellant’s claim to proceed. The appeal was allowed.

1. Court of Appeal (Civil Division) allowed the appeal and permitted the appellant’s out-of-time claim to proceed.
2. Middlesbrough County Court, on 16 January 2006, struck out the claim as an abuse of process, held that section 33 could not extend time because of Walkley v Precision Forgings Ltd, and stated that it would have refused an extension in any event.