McDonnell & Anor v Walker & Anor

When considering whether to disapply the personal injury limitation period under section 33 of the Limitation Act 1980, the court must decide whether it is equitable to require the defendant to meet the claim on its merits. It must balance all the circumstances rather than ask only whether a fair trial remains possible.

The delay specified in section 33(3)(a) and (b) begins when the primary limitation period expires. Earlier delay remains relevant to the overall assessment, particularly where late notification impaired the defendant’s ability to investigate liability or quantum. The court must examine the forensic effect and reasons for each period of delay. A claimant’s viable remedy against negligent solicitors may reduce the prejudice caused by refusing disapplication.

The claimants sought damages following a road traffic accident in April 2001. Liability was admitted, but their first solicitors served proceedings one day late. An application to extend the time for service was refused. After the House of Lords removed the former bar to a second action, the claimants commenced fresh proceedings in April 2008 and applied under section 33 of the Limitation Act 1980 to disapply the three-year limit in section 11.

Deputy Circuit Judge Morgan granted the application. By the second action, the claims were substantially larger than those originally notified and included extensive past and future loss of earnings and psychological injury. The executor appealed, contending that the judge had selected the wrong period of delay, misunderstood the evidence and failed properly to assess forensic prejudice.

The central issue was whether, after balancing the entire history of delay and its consequences, it was equitable to require the defendant’s estate and insurers to meet the claims on their merits.

1. Appeal allowed. The deputy judge misdirected himself and the Court of Appeal therefore reconsidered the section 33 discretion. Waller LJ gave the leading judgment. Rimer LJ and Sir Paul Kennedy agreed.

2. The basic inquiry under section 33 of the Limitation Act 1980 is whether it is fair and just in all the circumstances to expect the defendant to meet the claim on its merits despite its late commencement. The court must conduct a final balancing exercise after considering every relevant circumstance and issue. Whether a fair trial remains possible is relevant, but it is not a sufficient or freestanding test.

3. For section 33(3)(a) and (b), “delay” means the period after expiry of the primary limitation period. The court must nevertheless consider earlier delay under the requirement to examine all the circumstances. The date on which the defendant first received meaningful notification, and the resulting opportunity to investigate and preserve evidence, may be especially important.

4. The effect of delay matters more than its length viewed in isolation. A long delay will commonly increase prejudice, depending on the issues and the evidence required. Where delay has impaired the defendant’s investigation or assembly of evidence, the court must examine whether the delay was excusable. An excusable delay may permit the action to proceed if a fair trial remains possible. Inexcusable delay causing unfairness to the defence points strongly against disapplication.

5. The authorities permitting second actions after defective service did not establish that section 33 should readily be applied. Those cases involved prompt or adequate notification and no forensic prejudice, so the limitation defence would have produced a windfall. Here the insurers had not received sufficient information to investigate the claims eventually advanced. The second proceedings presented claims of an entirely different magnitude almost seven years after the accident.

6. The pre-action delay was unexplained, the failure to serve the first proceedings was negligent, and the 22-month delay after the change in the law was also without adequate excuse. The insurers were forensically disadvantaged by having to investigate quantum from a standing start.

7. Refusal caused the claimants only limited prejudice because they retained a claim against their former solicitors. Any reduction attributable to their own delay could not properly be treated as prejudice against the original defendant. The section 11 limitation period was therefore not disapplied.

1. Court of Appeal (Civil Division): By [2009] EWCA Civ 1257 , unanimously allowed the executor’s appeal, set aside the exercise of discretion below and refused to disapply the limitation period.
2. Manchester County Court: Deputy Circuit Judge Morgan granted the claimants’ application under section 33 of the Limitation Act 1980 to disapply section 11. No citation is stated.