Davies & Ors v Secretary of State for Energy and Climate Change

When deciding whether to disapply the limitation period for a personal injury claim, the court must determine whether a trial would be fair and just despite the delay. It may consider the claim’s broad merits, but should not determine the substantive issues prematurely.

Delay may be especially prejudicial where liability depends on reconstructing changing historical conditions and separating avoidable risks from risks inherent in the work. A claimant’s reliance on a trade union does not confer special status or excuse a failure to investigate a known work-related injury. Section 33 of the Limitation Act 1980 corrects injustice caused by an arbitrary time limit. It does not preserve an uninvestigated potential claim indefinitely.

Eight representative former coalminers alleged that negligent working conditions and breaches of statutory duty had caused osteoarthritis of the knee. Their case concerned repeated minor trauma arising from kneeling, crawling, lifting, tripping and working in confined underground conditions over several decades.

His Honour Judge Grenfell determined that each claimant’s action was out of time. He declined to disapply the limitation period under section 33 of the Limitation Act 1980, entered judgment against the other registered group claimants and discharged the group litigation order: [2011] EWHC 11 (QB).

The representative claimants appealed against the refusal to exercise the section 33 discretion. They challenged the judge’s assessment of the broad merits, the effect of delay on the evidence and their reasons for not claiming earlier. They also challenged the disposal of every other registered claim.

1. The appeal concerning the eight lead claimants was dismissed. An appellate court could interfere with the exercise of the section 33 discretion only where the judge misdirected himself, considered an irrelevant matter, omitted a relevant matter, or reached an irrational or clearly wrong conclusion. Judge Grenfell had applied the correct principles and had assessed each claimant individually.

2. The broad merits assessment was proper. A court considering section 33 may take an overall view of the prospects of success because exposing a defendant to a lengthy and expensive trial of a weak claim is relevant prejudice. The judge had not decided that the claims lacked a reasonable prospect of success. He had identified the evidence needed to establish and defend them and the extent to which delay had impaired that evidence.

3. The decisive distinction was between avoidable and unavoidable trauma. The claims involved numerous changing features of a dynamic underground environment rather than continuous exposure to one harmful agent. Establishing whether particular roadways or working practices involved actionable fault required detailed historical evidence about geological conditions, available resources, remedial work and practicability. The surviving documents, witnesses and recollections could not provide a sufficiently cogent basis for a fair trial. General expert evidence could not replace the missing primary facts.

4. The court could consider the total period of delay and the effect of further delay upon claims that were already historically difficult. The judge had found actual prejudice through incomplete documentation, the lack of available managerial witnesses and severely impaired recollection. His conclusion that post-limitation delay had substantially reduced the cogency of the evidence was correct.

5. The claimants’ reliance upon their unions did not favour disapplication. From their respective dates of knowledge, they believed their knee conditions were attributable to their underground work, yet they did not seek medical or legal advice, investigate whether the conditions involved actionable fault, or press their unions to do so. Section 33 is a corrective for injustice, not a means of preserving potential claims indefinitely.

6. The appeal was allowed in part as to the other registered claimants. Dates of knowledge and the section 33 discretion required individual determination. The order entering judgment against all non-lead claimants and discharging the group litigation order was therefore to be set aside or suspended. A time-limited mechanism was to permit identification of claims plausibly capable of producing a different outcome, failing which the judge’s order would be reinstated.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 1380, unanimously dismissed the appeal against the refusal to disapply the limitation period for the eight lead claimants, but set aside or suspended the disposal of the remaining registered claims and discharge of the group litigation order.
2. High Court, Queen’s Bench Division: His Honour Judge Grenfell held in [2011] EWHC 11 (QB) that the eight lead claims should not proceed under section 33 of the Limitation Act 1980. He also entered judgment against the remaining registered claimants and discharged the group litigation order.