The plaintiff’s car was struck by a company car driven by the defendant in the course of her employment and she sought damages. Her action, against the employer, was struck out as late under the 1980 Act. She then commenced an action against the driver defendant.
Held: The plaintiff was allowed to seek the exercise of the court’s discretion. Where a plaintiff in a personal injury action issues against one party, but that claim is dismissed, the court retains the discretion to allow a subsequent claim on similar facts against a different party under the section.
Simon Brown LJ discussed the Walkley case: ‘Lord Wilberforce was there [p. 609 cited above] saying that as a matter of construction the particular prejudice to which the section 33 discretion is directed is that occasioned by the plaintiff not having issued his proceedings within the primary three-year limitation period. Once he has issued his proceedings within that period, then, for whatever reason they have ceased to exist – whether through failure to serve, strike out for want of prosecution, or discontinuance – section 33 simply has no application.
Although Lord Wilberforce observes that any prejudice resulting from the ultimate ineffectiveness of the first proceedings is due rather to the plaintiff’s inaction than to the act (i.e. the proceedings not having being issued in time), this observation seems to me strictly outside the ratio. It is, after all, plain that the section 33 discretion arises notwithstanding a plaintiff’s solicitors’ perhaps far greater negligence in failing ever to have issued proceedings within the primary limitation period in the first place. Indeed, as Lord Diplock expressly recognised in Thompson v Brown [1981] 1 W.L.R. 744, 752 that is an undoubted anomaly arising from the Walkley principle.
I accordingly understand the Walkley principle to exclude from section 33 only actions which involve the same defendant and the same cause of action as was the subject of the earlier, timeous proceedings.’ and ‘The general tendency of those cases, I have no doubt, is to support the plaintiff’s argument. In the first place, they suggest a marked unwillingness on the Court’s part to apply the Walkley case . . . unless it is plainly indistinguishable . . . ‘ and
‘By the same token that the Walkley principle itself rests upon a narrow and somewhat technical construction of section 33, so too it is, in my judgment, possible to escape it on just such grounds. That, moreover, is particularly appropriate given the undoubted anomalies that in any event arise from the application of the principle – most notably, as already pointed out, its failure to impact on cases of perhaps greater negligence where no writ was ever issued in the first place. I would accordingly rule that the section 33 discretion arises in all cases save those which fall four-square within the Walkley principle.’
Judges:
Simon Brown, Waller and Clarke LJJ
Citations:
Times 31-Mar-1999, [1999] EWCA Civ 1061, [1999] 1 WLR 2068, [1999] PIQR P249
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Walkley v Precision Forgings Ltd HL 1979
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution.
Held: He . .
Cited – Forward v Hendricks CA 6-Dec-1996
. .
Cited – Deerness v John R Keeble and Son (Brantham) Ltd HL 1983
The plaintiff suffered very serious injuries as a passenger in a car, and a writ was issued within the three-year period against the driver and the owner of the car whose insurers made a substantial interim payment. The writ was not served, nor . .
Cited by:
Cited – Piggott v Aulton (Deceased) CA 29-Jan-2003
The claimant had issued proceedings against the deceased after his death, but before a personal representative had been appointed. They later discontinued and re-issued against the person appointed by the court to defend the action. The defendant . .
Cited – Barry Young (Deceased) v Western Power Distribution (South West) Plc CA 18-Jul-2003
The deceased had begun an action on becoming ill after exposure to asbestos by the defendant. He withdrew his action after receiving expert evidence that his illness was unrelated. A post-mortem examination showed this evidence to be mistaken. His . .
Cited – Jacqueline Adam v Rasal Ali CA 21-Feb-2006
The defendant sought damages against the defendant for personal injury from his alleged negligence. Her action was struck out and she recommenced the action. The defendant pleaded that she was out of time. The claimant said that the first action . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Lists of cited by and citing cases may be incomplete.
Limitation, Personal Injury
Updated: 05 December 2022; Ref: scu.145976