Sayers v Lord Chelwood (Deceased Executors of)

On an application under section 33 of the Limitation Act 1980, the claimant bears the burden of establishing that it would be equitable to disapply the limitation period. That burden is not necessarily a heavy one. Its practical difficulty depends on the circumstances.

The discretion is broad and unfettered. The court must weigh the prejudice to each party, consider all the circumstances and address the statutory factors. Those factors are not exhaustive. Relevant considerations include deterioration of evidence, unexplained delay, the merits and value of the claim, and the parties’ insurance positions.

The claimant sought damages for hearing loss and tinnitus allegedly caused by occupational noise while employed by Lord and Lady Chelwood. His action was commenced four years after the primary limitation period expired.

A deputy district judge held that the action was in time and would alternatively have disapplied the time limit. On appeal, His Honour Judge Hollis held that the claimant’s date of knowledge was in 2002 and refused relief under section 33 of the Limitation Act 1980. He described the claimant as bearing a particularly heavy burden and dismissed the action.

The claimant accepted the finding on knowledge but appealed against the exercise of the section 33 discretion. The issues were whether the circuit judge had applied the wrong test and, if so, whether the Court of Appeal should disapply the limitation period.

1. Appeal dismissed. The circuit judge applied the wrong general test by stating that the claimant bore a particularly heavy burden under section 33 of the Limitation Act 1980. The claimant bears the burden of persuading the court that disapplication is equitable, but the burden is not necessarily heavy. How readily it can be discharged depends on the facts.

2. The discretion under section 33 is broad and unfettered. Describing relief as an exceptional indulgence means only that the claimant seeks an exception from the ordinary consequence of commencing proceedings outside the limitation period. The court preferred the approach in AB v Ministry of Defence [2010] EWCA Civ 1317 to the heavy-burden formulation in KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85.

3. Because the wrong test had been applied, the Court of Appeal re-exercised the discretion. It considered all the circumstances and the factors in section 33(3). The action was commenced four years late, and no evidence explained the solicitors’ prolonged delay. The delay significantly impaired the evidence concerning the equipment, noise levels, working practices, hearing protection and instructions. A material witness had died, Lady Chelwood was aged 90, and the relevant equipment could no longer be identified or tested.

4. The claimant had not acted promptly after being alerted to possible industrial hearing loss in 2002. His claim was properly arguable and appeared to be worth about £25,000, but that consideration did not outweigh the prejudice to the defendants. The insurance position was relevant. Documents identifying an employer’s liability insurer for part of the employment period had been lost, exposing Lady Chelwood to part of the claim and her own costs.

5. The prejudice to the defendants if the stale action proceeded outweighed the prejudice to the claimant if it remained barred. The court therefore declined to disapply section 11 and upheld the dismissal of the action. Kitchin LJ and Arden LJ agreed with Jackson LJ.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court held that the circuit judge had applied the wrong general test under section 33 of the Limitation Act 1980, but re-exercised the discretion and reached the same conclusion.

2. Hastings County Court, circuit judge: His Honour Judge Hollis allowed the defendants’ appeal, held that the claimant’s date of knowledge was in 2002, refused to disapply the limitation period and dismissed the action.

3. Hastings County Court, deputy district judge: Deputy District Judge Smith held that the date of knowledge was December 2006 and that the action was in time. He would alternatively have disapplied the limitation period.