Harris v CDMR Purfleet Ltd

On an application for permission to appeal, a proposed ground may have real prospects of success where the trial judge gives no reasons for rejecting unchallenged evidence or for resolving a central technical dispute between experts. A challenge to a discretionary refusal under Limitation Act 1980, section 33, is more difficult because it must show that the decision was plainly wrong. Permission may nevertheless be granted on all grounds where other grounds meet the real-prospect threshold.

The claimant brought a claim concerning a shoulder injury, which he attributed to a road traffic accident in 2003 and to work involving repetitive arm elevation. The county court held that the claim was statute-barred because he had the relevant knowledge in October 2002, refused under section 33 of the Limitation Act 1980 to disapply section 11, and stated that it would dismiss the claim on the merits in any event.

He sought permission to appeal, challenging all three conclusions. The Court of Appeal considered the date-of-knowledge evidence, the adequacy of the judge’s reasons on technical expert evidence, and the section 33 discretion. The central issue was whether the proposed grounds had real prospects of success.

1. Permission to appeal. Dyson LJ granted permission on all three grounds. Although he doubted whether the challenge to the refusal to exercise the section 33 discretion had real prospects of success, he considered that the other two grounds did.
2. Date of knowledge. The county court judge gave no reasons for rejecting the claimant’s unchallenged evidence that he did not attribute his shoulder injury to the road traffic accident until well into 2003. The judge also gave no reasons for concluding that the claimant knew in October 2002 that the injury was attributable to his work. Those unexplained conclusions gave the challenge real prospects of success.
3. Liability and expert evidence. Liability depended on technical issues concerning the angle and repetitiveness of arm elevation. The competing cases were that the angle exceeded 60 degrees or was no more than about 45 degrees. Despite detailed cross-examination and written submissions, the judge addressed the technical issues only briefly, apparently by stating a preference for one expert over another. In the light of Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, particularly the passage at page 382A, there were real prospects of success on the adequacy of the reasons.
4. Disposition. Maurice Kay LJ agreed with Dyson LJ. Permission was granted on all three points. The substantive appeal was not determined.

• Court of Appeal (Civil Division). Permission to appeal was granted on all three grounds. The respondent did not appear and was not represented.
• Southend County Court. His Honour Judge Dedman held that the claim was statute-barred, refused to exercise the section 33 discretion, and stated that he would dismiss the claim in any event.