Cairns -Jones & Ors v Tyler & Anor

Section 33 of the Limitation Act 1980 requires the claimant to show that it is equitable to disapply the limitation period. The court must balance prejudice to both parties and consider all the circumstances. Delay after expiry of the primary limitation period is relevant under section 33(3)(a) and (b). Earlier delay may also matter where it causes forensic prejudice, including delayed notification of a possible claim. Claimant prejudice includes the provisional prospects and value of the claim. Defendant prejudice focuses on the effect of delay on evidence. An appellate court should intervene only where the discretion was plainly misused or unsustainable. The judge’s refusal to extend time was therefore upheld.

Three employees appealed from a preliminary decision that their personal injury claims were out of time and that the court should not exercise its discretion under section 33 of the Limitation Act 1980. The claims concerned high alarm vibration syndrome and, in two cases, work-related upper limb disorder. The primary limitation issue was not appealed. The appellants argued that the judge had considered the wrong period of delay, failed to account for the continuing cause of action, undervalued the claims, overstated evidential prejudice, and gave excessive weight to proportionality despite related claims proceeding. The central issue was whether any errors made the refusal to extend time unsustainable.

1. The appeal was dismissed. The claimants bore the burden of showing that it would be equitable to disapply the limitation period. The exercise under section 33 required a balance between prejudice to the claimants if barred and prejudice to the defendant if the claims proceeded, while taking account of all the circumstances and the matters identified in section 33(3).
2. The court applied the principles in Robinson v St Helens Metropolitan Borough Council [2003] PIQR 139, Cain v Francis [2009] QB 754 and Donovan v Gwentoys Limited [1990] 1 WLR 472. Delay under section 33(3)(a) and (b) refers to delay after expiry of the primary limitation period. Earlier delay may nevertheless be relevant under section 33(3)(e), and under the wider assessment, where it has caused forensic prejudice.
3. In assessing prejudice to the claimants, the judge was entitled to make a provisional assessment of the prospects and value of the claims. Adams v Bracknell Forest Borough Council [2005] 1 AC 76 supported treating the likely award as relevant. The evidence disclosed uncertainty about liability, modest likely damages, and significant questions about exposure levels and warnings. The judge had adequately addressed the warning issue and the secondary upper-limb-disorder claims.
4. The judge was entitled to find substantial prejudice to the defendant. Receivership had created difficulties in locating witnesses and records, and the delay had impaired investigation of the individual claims. The fact that two related claims would proceed did not remove the need for claimant-specific evidence or substantially reduce the additional costs. The judge was entitled to weigh those matters against the likely recovery and prospects of success.
5. Elias LJ regarded the judge’s treatment of the relevant periods of delay as a technical error which was immaterial. Pitchford LJ considered that the judge had understood the correct principle and, in any event, had been entitled to consider the longer period in the wider assessment. Both concluded that the decision fell within the generous ambit of discretion. Carnwath LJ agreed.

• Lower court: His Honour Judge Seys Llewellyn QC held at a preliminary hearing that the claims were out of time and declined to exercise the section 33 discretion.
• Court of Appeal (Civil Division): The appeal was dismissed. [2010] EWCA Civ 1642