Adam v Ali

The Walkley exception to the discretionary power in section 33 of the Limitation Act 1980 is confined to a claimant who previously began, within the primary three-year period, an action between the same parties on the same cause of action. It does not bar the discretion merely because an earlier action, itself begun out of time, later failed.

The section 33 discretion is unfettered, subject to the claimant establishing that it is equitable to exercise it. The court must first balance the parties’ prejudice under section 33(1), then consider all the circumstances, including the statutory factors. A claimant’s solicitor’s default does not count as the claimant’s lack of promptness, although a potential claim against the solicitor remains relevant to prejudice.

The claimant was injured in a road traffic accident. Liability was promptly admitted. Her solicitors issued a county court personal-injury claim shortly after the primary limitation period had expired, failed to serve particulars of claim, and the claim was struck out.

She then commenced fresh High Court proceedings. His Honour Judge Yelton held that the court lacked jurisdiction to disapply the limitation period under section 33 of the Limitation Act 1980 because of Walkley v Precision Forgings Ltd [1979] 1 W.L.R.606. He also held that, if jurisdiction existed, he would refuse relief. The claimant appealed.

The central issue was whether the Walkley principle excluded section 33 where the earlier action between the parties had itself been commenced after the primary three-year period.

1. Appeal allowed unanimously. Ward LJ, with whom Arden and Dyson LJJ agreed, held that the judge had erred in treating Walkley v Precision Forgings Ltd [1979] 1 W.L.R.606 as excluding the section 33 discretion.

2. Walkley is an anomalous and narrow exception. It applies only where the claimant had already started, within the primary three-year period, an action between the same parties on the same cause of action. In that situation the claimant was not prejudiced by section 11 of the Limitation Act 1980. The exception does not arise where the first action was commenced outside that period. The court rejected a hypothetical inquiry into whether the defendant would have pleaded limitation in the earlier action. The second action was directly exposed to a time-bar defence.

3. The judge had also misdirected himself on section 33. The discretion is unfettered, although the claimant bears the burden of showing that relief is equitable. The essential inquiry under section 33(1) is the balance between the claimant’s prejudice if the action is barred and the defendant’s prejudice if it proceeds. The factors in section 33(3) inform, but do not replace, that overall assessment.

4. Exercising the discretion afresh, the court held that the thirteen-month delay was material but did not justify barring the claim. The defendant had early notice, had admitted liability, and faced no significant evidential disadvantage. The claimant had acted promptly by consulting solicitors and was largely blameless for their failures. A possible negligence claim against those solicitors reduced, but did not eliminate, her prejudice. Looking at the case in the round, it was equitable to permit the action to continue.

• Court of Appeal (Civil Division): allowed the claimant’s appeal and held that section 33 of the Limitation Act 1980 was available; it exercised the discretion to permit the action to proceed.
• High Court (Queen’s Bench Division): on 8 November 2004, His Honour Judge Yelton answered preliminary issues by holding that the earlier county court action was not brought within the section 11 period, that section 33 was unavailable, and alternatively that he would not exercise the discretion. The claim was struck out.