Leeson v Marsden & Anor

The discretion under section 33 of the Limitation Act 1980 is wide and unfettered. The court must consider all the circumstances, including the statutory factors and whether a fair trial remains possible. A second personal injury claim is not automatically an abuse merely because an earlier claim was struck out after substantial procedural litigation. The court may consider the use of court resources as part of the overall section 33 assessment, but should not impose a separate procedural fetter. Solicitors’ default is not attributed to a claimant personally when assessing the claimant’s conduct under section 33, although its consequences may remain relevant to the overall balance. The claim was allowed to proceed because the claimant had acted promptly, the defendants had long known of the allegations, the evidence remained sufficiently cogent, and the balance of prejudice favoured the claimant.

The claimant suffered serious neurological injury following alleged clinical negligence by a trainee general practitioner and an NHS trust in December 2000. Her first claim was issued within the limitation period but the claim form was served one day late. The claim was struck out following contested applications and an unsuccessful appeal.

After Horton v Sadler [2007] 1 AC 307, the claimant issued a second claim out of time and applied under section 33 of the Limitation Act 1980. The defendants alleged that the second claim was an abuse of process and that the limitation period should not be disapplied. The central issues were whether abuse of process should be determined separately from section 33 and whether it would be equitable to allow the claim to proceed.

1. The defendants failed to establish that the second claim was an abuse of process. The claimant had not previously litigated the substantive clinical negligence issues. The first claim had been struck out for defective service, not for inordinate delay or failure to prosecute the underlying claim.

2. The approach in Securum Finance Ltd v Ashton [2001] Ch 291 did not require a separate free-standing abuse jurisdiction in this case. The use of court resources could be considered under section 33 as part of all the circumstances. It would create an unwarranted fetter to require a separate discretion to be exercised on the same facts.

3. Section 33 confers a wide and unfettered discretion. The court must consider the statutory factors and all relevant circumstances, including the effect of delay on the cogency of evidence, the conduct of the parties, the strength of the claim, costs, court resources and whether a fair trial remains possible. The burden lay on the claimant, but describing the burden as an exceptional indulgence or a heavy burden was unhelpful after Horton v Sadler and A v Hoare [2008] UKHL 6.

4. The claimant had acted promptly and reasonably. The period during which a second claim would have been doomed to fail under Walkley v Precision Forgings Ltd [1979] 1 WLR 606 should not be weighed against her as delay. Under the authorities, including Thompson v Brown [1981] 1 WLR 744, Das v Ganju and Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419, her solicitors’ default was not attributed to her personally when assessing her conduct.

5. The defendants had been notified of the claim promptly and had opportunities to investigate it and preserve evidence. The medical records remained available, and the evidence was unlikely to be materially less cogent. A fair trial was still possible. The Trust’s forensic disadvantage arising from disclosure of an expert report could be addressed by case management directions.

6. The claimant’s strong potential claim against her former solicitors did not mean that she would suffer only slight prejudice if required to pursue that alternative remedy. A professional negligence claim would provide the value of a lost chance, not necessarily the full value of the underlying claim. The balance of prejudice therefore favoured the claimant.

7. The limitation period was disapplied under section 33. The action was permitted to proceed, subject to payment of the costs incurred in the first claim before further progress, with liberty to apply concerning costs and restrictions on use of the disclosed expert report.

The judgment itself records the procedural history of the earlier claim:

• Court of Appeal: the claimant’s appeal was dismissed on 25 January 2006 following the decision in Collier v Williams [2006] 1 WLR 1945; the first claim was struck out for late service.
• High Court (Queen’s Bench Division): the second claim was permitted to proceed after the limitation period was disapplied under section 33 of the Limitation Act 1980.