McHugh v Gray

Under section 33 of the Limitation Act 1980, the court must decide whether it is equitable, meaning fair between the parties, to disapply the limitation bar. It must consider all the circumstances, including the statutory factors, without imposing a tariff based on the length of delay or treating evidential prejudice as automatically decisive.

The discretion is wide, but an appellate court may intervene where the judge applies wrong principles, considers irrelevant matters, ignores relevant matters, or reaches a plainly wrong conclusion. A very long delay may itself weigh heavily against disapplication, even where overall evidential prejudice is limited. The claimant’s reasons for delay are assessed subjectively under section 33, unlike constructive knowledge under section 14.

The claimant appealed against HH Judge Armitage QC’s preliminary issue decision that his personal injury claim against the estate of Dr Charles Gray was barred by section 11 of the Limitation Act 1980. The judge had found that the primary limitation period expired on 30 June 1995 and declined to disapply the bar under section 33.

The claimant abandoned his challenge to the constructive knowledge finding. The appeal therefore concerned whether the judge had wrongly exercised the section 33 discretion, particularly in assessing the claimant’s psychiatric condition, the reasons for delay, evidential prejudice, the size of the claim and possible remedies against solicitors. The central issue was whether it was equitable to allow the claim to proceed despite proceedings having been commenced almost seven years after expiry of the primary limitation period.

1. Appeal dismissed. The judge’s decision that section 11 barred the personal injury claim, and that section 33 should not be invoked, was upheld.
2. Section 33 creates a wide discretion. Its breadth does not make it unfettered in the literal sense. An appellate court may intervene where the judge applies wrong principles, takes account of irrelevant factors, ignores relevant factors, or reaches a plainly or palpably wrong decision. General guidance is necessarily limited because circumstances vary infinitely.
3. The six matters in section 33(3) are not assigned statutory weights. Their comparative weight is for the trial judge, who must also consider all the circumstances. The effect of delay on the defendant’s ability to defend may be of paramount importance, but limited evidential prejudice does not require disapplication of the limitation period.
4. The length of delay may itself be a powerful factor. The authorities do not establish a fixed tariff. Nevertheless, proceedings issued almost seven years after expiry of the primary period constituted significant delay. The judge was entitled to regard the claim as stale and to take account of the continuing uncertainty caused by unresolved claims.
5. The judge correctly distinguished the objective constructive knowledge inquiry under section 14 from the subjective assessment of the claimant’s reasons for delay under section 33(3)(a). He had already considered the claimant’s evidence, psychiatric evidence and findings concerning avoidance before applying the section 33 test. He was entitled to conclude that the claimant retained the ability to investigate his failure to recover and was responsible for the delay.
6. The judge properly considered the potential loss of evidence following Dr Gray’s death, the diminished cogency of the claimant’s recollection, the absence of formal legal incapacity, the claimant’s failure to seek advice about diagnosis or prognosis, and the potentially valuable but uncertain nature of the claim. His failure to mention possible claims against the claimant’s lawyers was not a plainly wrong error, since the matter had not been relied upon at trial.

• High Court (Queen’s Bench Division): HH Judge Armitage QC determined the limitation issue as a preliminary issue on 23 February 2006. He held that the claim was barred by section 11 of the Limitation Act 1980 and declined to disapply the limitation period under section 33.
• High Court (Queen’s Bench Division): permission to appeal was granted by Beatson J, but the challenge to the constructive knowledge finding was abandoned. The appeal on section 33 was dismissed.