Davidson v Aegis Defences Services (BVI) Ltd & Anor

A failure to serve a first claim form within the period required by Civil Procedure Rules 1998 does not automatically prevent a court from disapplying the personal-injury limitation period under section 33 of the Limitation Act 1980. The statutory discretion remains fact-sensitive.

The essential question is whether it is fair and just to require the defendant to meet the claim on its merits despite the delay. The court must assess the reasons for delay and its practical effect on evidence. A possible claim against former solicitors is relevant but is not determinative. Prejudice arising after expiry of the primary period is particularly important, but earlier prejudice may also form part of the overall assessment.

The claimant alleged that he suffered a serious back injury while undertaking a lifting exercise during security work in Iraq. He issued his first personal-injury claim shortly before expiry of the three-year limitation period, but served only a photocopy of the claim form. Applications to extend time for service or dispense with service failed.

He then issued and served a second claim form and sought a direction under section 33 of the Limitation Act 1980 disapplying the limitation period. A Deputy High Court Judge dismissed that application. The claimant appealed, contending that the judge had misdirected himself on the relationship between CPR 7.6 and section 33, the relevance of a negligence claim against former solicitors, and prejudice to Aegis.

1. Appeal dismissed unanimously. Lord Justice Longmore, with whom McFarlane and Vos LJJ agreed, held that the Deputy Judge had correctly exercised the section 33 discretion.

2. There was no conflict between McDonnell v Walker [2009] EWCA Civ 1257 and Aktas v Adepta [2010] EWCA Civ 1170. CPR 7.6 is a stringent procedural rule, but it does not remove the statutory power under section 33 of the Limitation Act 1980 to permit a later personal-injury action. Equally, the failure to serve a first action does not give the claimant an advantage. The discretion depends on the facts of the individual case.

3. The applicable guidance was that in Cain v Francis [2009] QB 754: the court asks whether it is fair and just to expect the defendant to meet the claim on the merits notwithstanding delay. It considers both the reasons for delay and its effect on investigation and evidence. A potential loss-of-chance claim against the claimant's former solicitors was a relevant consideration. Such litigation was second best, but the Deputy Judge was entitled to give it weight.

4. The Deputy Judge was entitled to find post-limitation prejudice to Aegis. Potentially relevant documents had been lost without Aegis's fault, other course participants might be untraceable, and memories would have become less reliable. Those matters supported the conclusion that the balance favoured Aegis. Although prejudice during the primary period was not decisive under section 33(3)(a) and (b), it was relevant to the overall picture.

• Court of Appeal (Civil Division) Dismissed the claimant's appeal: [2013] EWCA Civ 1586.
• High Court, Queen's Bench Division Mr Nigel Wilkinson QC, sitting as a Deputy High Court Judge, dismissed the claimant's application to disapply the limitation period under section 33 of the Limitation Act 1980. No citation was stated.