Gregory v H J Haynes Ltd

On an application under Limitation Act 1980, section 33, the court must assess the whole period of delay but distinguish periods for which the claimant was, and was not, culpably responsible. Delay while a dissolved defendant and its insurers could not reasonably be identified was excusable. Delay after the insurers became identifiable was inexcusable, but its weight depended on whether it caused additional prejudice.

The court must balance prejudice, the reasons for delay and the possibility of a fair trial. A claimant who discovers a late claim should pursue it with due despatch, even where further delay causes no readily identifiable evidential prejudice. The limitation period was therefore disapplied.

The claimant, a former roofer, alleged asbestos exposure during employment by the respondent between 1959 and 1971/72. He became aware of his disease in November 2008 and instructed solicitors in March 2009. The respondent had been dissolved, and repeated searches did not identify its employers’ liability insurers until September 2014. Proceedings were issued in 2017.

The District Judge refused an application under section 33 of the Limitation Act 1980, treating most of the period from 2009 onwards as culpable delay. The appeal concerned whether that characterisation materially distorted the section 33 balancing exercise.

1. Appeal allowed. The District Judge had erred in treating the period from March 2009 to September 2014 as culpable delay. The claimant could not realistically have advanced the claim while the defendant was dissolved and no insurer could be identified. Commencing proceedings before restoration would have been impractical and potentially a nullity.
2. Although the whole period since knowledge of the disease had to be considered, the periods had to be assessed separately. Delay from 2008 to 2014 was excusable. Delay from 2014 to 2017 was inexcusable because the claimant’s solicitors failed to pursue the claim with due despatch.
3. The governing exercise under section 33 required consideration of all the circumstances, including the statutory factors in section 33(3). The principal considerations were the length and reasons for delay, comparative prejudice and whether a fair trial remained possible. The approach summarised in Carroll v Chief Constable of Greater Manchester Police [2014] 4 WLR 1 was adopted.
4. The respondent’s evidential prejudice had largely accrued by 2014. The additional delay after the insurers were identified did not materially worsen its evidential position. Nevertheless, a claimant cannot assume that further delay is harmless merely because no additional prejudice is demonstrable; prolonged inactivity may itself make disapplication unfair.
5. The delay was attributable principally to the solicitors, rather than to personal dilatoriness by the claimant. In the circumstances, the later delay was insufficient to outweigh the claimant’s entitlement to relief. The section 33 limitation period was disapplied.

• High Court (Chancery Division): The appeal from the decision of District Judge Bell, sitting at the County Court at Portsmouth on 10 June 2019, was allowed. The limitation period was disapplied.