HMG3 Ltd & Anor v Dunn

In an appeal concerning the discretion under section 33 of the Limitation Act 1980, the appellate court should intervene only for an error of principle or a decision outside the generous ambit of reasonable disagreement. Delay before the limitation period begins is relevant, but generally carries less weight than prejudice caused during the limitation period. The court must balance the claimant’s prejudice from losing the claim against the defendant’s prejudice in defending it out of time. In long-tail industrial disease claims, pre-existing evidential difficulties do not automatically establish additional prejudice caused by later delay. A judgment may contain imperfections without being invalid if its essential reasoning is sound and the relevant factors have been considered.

The defendants appealed against Deputy Circuit Judge Holt’s decision of 22 June 2018. He had exercised the discretion under section 33 of the Limitation Act 1980 to permit Mrs Suzanne Dunn’s dependency and estate claims to proceed out of time.

The deceased had died from bronchopneumonia after contracting alleged occupational asbestosis. The trial judge found that he acquired the relevant knowledge in October 2008, so the primary limitation period expired before the claim was issued. That finding was not challenged. The appeal concerned only whether the discretion had been exercised on proper principles, particularly in relation to delay, prejudice, disability, conduct and the parties’ efforts to obtain legal advice.

1. The appeal was dismissed. The trial judge’s exercise of the broad discretion under section 33 was not vitiated by the identified errors or omissions.

2. The approach in Carroll v Chief Constable of Manchester [2017] EWCA 1992 provided the appropriate starting point. An appellate court should intervene only where there is an error of principle, such as taking account of an irrelevant matter or failing to consider a relevant one, or where the decision falls outside the generous ambit within which reasonable disagreement is possible.

3. The central findings were that the delay was understandable and excusable, and that the defendants’ position was no worse in 2015 than it had been in 2008. Those findings were open to the trial judge. Delay following the deceased’s diagnosis, deterioration and death could reasonably be viewed in human terms as excusable.

4. Under section 33, the court must consider all the circumstances, with particular regard to the statutory factors. Pre-limitation delay is relevant, but it generally carries less weight than loss of evidential cogency during the limitation period. Additional prejudice caused by post-knowledge delay may be significant, but the evidence did not establish any real additional loss here. The possible loss of contribution claims was fanciful rather than real.

5. The claimant’s loss of the claim was itself prejudice for section 33(1)(a) purposes. The claimant bore the ultimate burden of showing that it would be equitable to allow the action to proceed, while the evidential burden concerning reduced cogency generally lay on the defendant. The trial judge had not improperly elevated the claimant’s apparently cogent evidence.

6. The trial judge had misconstrued disability under section 33(3)(d), which concerns incapacity to litigate rather than ordinary illness or infirmity. However, the matters he considered were relevant under other statutory factors, so the error did not affect the outcome. His treatment of conduct, promptness and legal advice contained some shaky reasoning but no unsound foundation stone.

• High Court (Queen's Bench Division): appeal against the decision below dismissed.
• County Court: Deputy Circuit Judge Holt, on 22 June 2018, exercised the discretion under section 33 of the Limitation Act 1980 to permit the claims to proceed out of time.