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 could not do so. He was not prejudiced by the primary limitation period since he had properly issued his initial claim within it; there was accordingly no discretion to be exercised under section 33 which by subsection (1)(a) postulates that the primary limitation provisions ‘prejudice the plaintiff’. The court may not exercise its power to disapply the ordinary time limit in a personal injury action under section 33 of the Limitation Act where the plaintiff had brought an action before the expiry of that limit and was bringing a second action in which the application under section 33 was being made.
Lord Diplock: ‘So, to entitle the court to give a direction under [section 33(1)], there must be some prejudice to the plaintiff and the cause of that prejudice must be the requirement under [section 11] that he should start his action before the expiry of the primary limitation period.
My Lords, in my opinion, once a plaintiff has started an action (the first action) within the primary limitation period it is only in the most exceptional circumstances that he would be able to bring himself within section 2D in respect of a second action brought to enforce the same cause of action. If the first action is still in existence, as it was in the instant case when the matter was before the Master or the judge, cadit quaestio; he has not be prevented from starting his action by section 2A or section 2B at all, so the provisions of those sections cannot have caused him any prejudice. Does it make any difference if the first action is no longer in existence at the time of the application under section 2D either because it has been struck out for want of prosecution or because it has been discontinued by the plaintiff of his own volition? In my view, it does not. These are self inflicted wounds. The provisions of section 2A caused him no prejudice at all; he was able to start his action. The only cause of the prejudice to him in the case of dismissal for want of prosecution is dilatoriness which took place after the action was started whether on his own part or on the part of his legal advisors. In the case of discontinuance the only cause of prejudice is his own act.
The only exception I have been able to think of where it might be proper to give a direction under section 2D, despite the fact that the plaintiff had previously started an action within the primary limitation period but had subsequently discontinued it, would be a case in which the plaintiff had been induced to discontinue by a misrepresentation or other improper conduct by the defendant; but there is no suggestion of this in the instant case.
I would allow the appeal upon the ground that Mr Walkley, having previously started an action for the same cause of action within the primary limitation period prescribed by [section 11], cannot bring himself within section 2A at all. Any application by him under that section would fail in limine.’ and ‘Despite the use of the phraseology ‘an action shall not be brought,’ it is trite law that technically the Limitation Act does not prevent the commencement of an action by the Plaintiff after the limitation period has expired. What it does is to provide the defendant with a cast-iron defence if he chooses to avail himself of it; which he may do either by pleading it or, in a case where the action is in indisputably statute-barred, by taking out a summons to have it dismissed as vexatious. For the sake of brevity, however, I shall speak of the effect of the expiry of a primary limitation period as preventing the starting of the action.’
HL Wilberforce L: ‘My Lords, as a matter of principle I have very great difficulty in understanding how in this case or indeed in any case that I can imagine where an action has been started within the normal limitation period, section 2D can be invoked at all. The section opens with the words:
‘(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which- (a) the provisions of section 2A or 2B of this Act prejudice the plaintiff . .
The provisions of section 2A are those which require an action for personal injuries to be brought within three years. So subsection (1)(a) must be contemplating a case in which, because the three years have expired without an action being brought, section 2A applies to the prejudice of the plaintiff. But if the plaintiff has brought his action within the three years, how has he been prejudiced by section 2A? This I fail to understand. If this argument is sound, the respondent’s case fails in limine. He brought his first action within the normal limitation period, and if he has suffered any prejudice, it is by his own inaction and not by the operation of the Act. However, since the Court of Appeal did not decide the case on this argument, or, it seems, consider it, and since the provision is a new one, understanding of which may have to come with time, I will consider the appeal on the assumption that these initial words may apply to the case.’
Viscount Dilhorne: ‘In my opinion this appeal should be allowed for it cannot be said that it was the provisions of section 2A (that is to say, the imposition of the three year period after which an action such as this cannot be proceeded with without the directions of the court) which prejudiced the respondent when within that period he brought an action for damages for the same personal injuries and in respect of the same cause of action as in his second action. He was prejudiced by his delay in proceeding with the first action and by his discontinuance of that action, not by the provisions of section 2A.’

Judges:

Wilberforce Lord, Lord Diplock, Viscount Dilhorne, Lord Edmund-Davies and Lord Keith of Kinkel

Citations:

[1979] 1 WLR 606, [1979] 2 All ER 548

Statutes:

Limitation Act 1963

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Dimsey; Regina v Allen CA 14-Jul-1999
A deeming section could create a taxation liability, even where the liability appeared to be duplicated. The clause under which the foreign income of a company came to be chargeable did not affect the existing liability to pay tax on the sums so . .
Appeal from – Walkley v Precision Forgings Ltd CA 1978
The plaintiff appealed the strict application of the limitation laws against his claim. He had been injured whilst working as a grinder. He began one claim which lapsed, and began a second claim outside the limitation period, requesting the court to . .
Cited – Firman v Ellis CA 1978
Writs had been issued within the limitation period, but then allowed to lapse.
Held: Section 2D gave a wide discretion to the court which was not limited to a residual class of case or to exceptional cases.
Ormrod LJ said: ‘The appellants . .

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 . .
Explained – 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 – Forward v Hendricks CA 6-Dec-1996
. .
Cited – Shapland v Palmer CA 23-Mar-1999
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 . .
Explained – Thompson v Brown Construction (Ebbw Vale) Ltd HL 1981
The plaintiff’s solicitors, out of negligence, failed to issue a writ until one month after the limitation period had expired. The application to extend the period was rejected at first instance since he had an unanswerable claim against his . .
Cited – Mcevoy v AA Welding and Fabrication Ltd CA 15-Dec-1997
Where a first writ issued within the primary limitation period is itself ineffective (although not a nullity) through having been issued variously without consent against a company in liquidation.
Held: The Walkley principle does not apply to . .
Cited – White v Glass CA 17-Feb-1989
The plaintiff had sued his club under its name, but it was an unincorporated association, and the action was stricken out as improperly constituted. The first writ issued within the primary limitation period but was ineffective. The defendant . .
Distinguished – Re Workvale Ltd (In Liquidation) CA 8-Apr-1992
A limited company was correctly restored to the register from dissolution so that its insurers could face an arguable claim. Where a first writ issued within the primary limitation period was ineffective (although not a nullity) through having been . .
Cited – Clay v Chamberlain QBD 2002
The claimant sought the judge’s discretion to disapply the rule in Walkley. The judge characterised the defendant’s conduct as ‘though not improper, sufficiently blameworthy to result in a situation which was at any rate analogous to an estoppel and . .
Cited – Herbert George Snell and others v Robert Young and Co Limited and others CA 21-Nov-2002
The claimants had sought damages for poisoning from organophosphates used in sheep dipping. Evidence linking the injuries to the use of the chemicals had not been found, and the actions struck out as an abuse of process. The group litigation had . .
Confined to its facts – 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 . .
Discussed – Chappell v Cooper CA 1980
The plaintiff’s writ had not been served within the required time, and it had become too late to extend its validity. The plaintiff isued a second writ. The defendant argued limitation. Counsel for the plaintiffs sought to distinguish Walkley on the . .
Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
Overturned – 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 . .
Distinguished – Rose v Express Welding Ltd CA 21-Jan-1986
. .
Cited – Hartley v Birmingham City District Council CA 1992
The writ was issued one day late; there had been early notification of the claim; and the defendant’s ability to defend the case was unaffected. The plaintiff asked the court to exercide its discretion to allow the claim t proceed.
Held: The . .
Cited – McDonnell and Another v Walker CA 24-Nov-2009
The defendant appealed against the disapplication of section 11 of the 1980 Act under section 33.
Held: The appeal succeeded. The defendant had not contributed significantly to the delay: ‘the defendant received claims quite different in . .
Cited – Aktas v Adepta CA 22-Oct-2010
The court was asked whether, when a claim was issued towards the very end of a limitation period, but was then not served, and the claim was struck out, CPR Part 7.5(1) gave a further four months in which it could be resurrected at the discretion of . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 16 May 2022; Ref: scu.179321

The plaintiff claimed damages for mesothelioma. CEGB had provided a contractual indemnity in respect of damage or injury occurring before building works were taken over by a client in 1960. The question was whether a workman who died from mesothelioma well after 1960 but was exposed during the building work before 1960 had suffered damage or injury before 1960.
Held: The evidence did not establish even that minimal microscopic changes had occurred before 1960 and that the damage or injury occurred many years after the deceased had finished working.

Judges:

Tudor Evans J

Citations:

Unreported, 10 March 1995

Cited by:

Appeal from – Jameson and Wyatt (Executors of the Estate of David Allen Jameson) v Central Electricity Generating Board and Babcock Energy Limited CA 13-Feb-1997
Executors may sue for a dependency claim despite a full and final settlement having been made by the deceased. . .
Cited – Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA 6-Feb-2006
The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 14 May 2022; Ref: scu.238333

The plaintiff’s solicitors, out of negligence, failed to issue a writ until one month after the limitation period had expired. The application to extend the period was rejected at first instance since he had an unanswerable claim against his solicitors.
Held: The discretion under the section 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. This is an undoubted anomaly arising from the Walkley principle. The court’s discretion was unfettered. Disapplying the time limit will always prejudice a defendant, because he will lose his limitation defence.
Lord Diplock said: ‘The onus of showing that in the particular circumstances of the case it would be equitable to make an exception lies upon the plaintiff; but, subject to that, the Court’s discretion to make or refuse an order if it considers it equitable to do so is, in my view, unfettered. The conduct of the parties, as well as the prejudice one or other will suffer if the court does or does not make an order, are all to be put into the balance in order to see which way it falls.’ and
‘Walkley . . was a case in which the plaintiff had issued and served his writ within the primary limitation period; so section 11 had not affected him at all. No further steps were taken in the action within the primary limitation period and it was ripe to be dismissed for want of prosecution. In an attempt to avoid this fate a second writ founded on the same cause of action was issued by the plaintiff’s new solicitors. Considerable procedural manoeuvring by both parties followed, in the course of which application was made under section 33 to allow the action started by the second writ to proceed. This House took the view that, the plaintiff having brought within the primary limitation period an action for damages for the very negligence which constituted the cause of action alleged in the second writ, he had not been affected by section 2A [11] at all, let alone prejudiced by it.’
and ‘In Walkley . . the primary period of limitation had not expired when the plaintiff had started his action against the tortfeasor. That was the only reason why section [33] did not apply to his case’, (with emphasis added by me).’ and ‘It may seem anomalous that a defendant should be better off where, unknown to him, a writ has been issued but not served than he would be if the writ had not been issued at all ; but this is a consequence of the greater anomaly too well-established for this House to abolish that, for the purposes of a limitation period, an action is brought when a writ or other originating process is issued by the central office of the High Court and not when it is brought to the knowledge of the defendant by service upon him.’
Lord Oliver said: ‘My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Griffiths. I entirely agree with it and add a few words of my own only because a contrary view was taken by the majority of the Court of Appeal.
The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff’s claim on that point alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses’ memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff’s failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant. It is clear from the judge’s judgment that, because sub-paragraphs (a) and (b) of s.33(3) of the Act of 1980 focus particular attention on the time elapsing after the expiry of the limitation period, he felt constrained to regard the time which had been allowed to pass prior to that date as something which had to be left wholly out of account. In my judgment, he was wrong to do so and that necessarily vitiated the exercise of his discretion. I, too, would allow the appeal.’

Judges:

Lord Diplock, Lord Elwyn-Jones, Lord Fraser of Tullybelton, Lord Scarman and Lord Bridge of Harwich

Citations:

[1981] 1 WLR 744, [1981] 2 All ER 296

Statutes:

Limitation Act 1980 33, Limitation Act 1938 2D

Jurisdiction:

England and Wales

Citing:

Explained – 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 by:

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 – David Lannigan v Glasgow City Council OHCS 12-Aug-2004
The pursuer said the teachers employed by the defendant had failed to identify that was dyslexic, leading him to suffer damage. The defenders said the claim was time barred, which the pursuer admitted, but then said that the claim ought to go ahead . .
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 . .
Cited – Buckler v J F Finnegan Ltd CA 21-Jun-2004
The claimant sought damages for personal injuries after ingesting asbestos while employed as a joiner by the defendant. The defendant appealed an order allowing the claim to go ahead despite being out of time. . .
Cited – McDonnell and Another v Walker CA 24-Nov-2009
The defendant appealed against the disapplication of section 11 of the 1980 Act under section 33.
Held: The appeal succeeded. The defendant had not contributed significantly to the delay: ‘the defendant received claims quite different in . .
Cited – Brady v Norman CA 9-Feb-2011
The claimant sought to have disapplied the limitation period in his defamation claim. The claimant said that in the case of Cain, the Steedman case had not been cited, and that the decisions were incompatible, and that Cain was to be prefered.
Cited – Cain v Francis CA 18-Dec-2008
The court was asked under what circumstances it should exercise its discretion to extend the limitation period under section 33.
Held: Lady Justice Smith said: ‘It appears to me that there is now a long line of authority to support the . .
Cited – Brady v Norman CA 9-Feb-2011
The claimant sought to have disapplied the limitation period in his defamation claim. The claimant said that in the case of Cain, the Steedman case had not been cited, and that the decisions were incompatible, and that Cain was to be prefered.
Cited – S v Suren and Another QBD 10-Sep-2004
. .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 12 May 2022; Ref: scu.185753

When a party requested a court to set aside the limitation period, he was under a high duty to disclose all relevant details. Where it turned out later that he had failed to disclose relevant aspects of his medical history, it was perfectly open to the court to revisit the original order and to re-instate the limitation period.

Citations:

Times 05-Jan-2000

Statutes:

Limitation Act 1980 33, 11

Jurisdiction:

England and Wales

Limitation, Personal Injury

Updated: 10 May 2022; Ref: scu.83179

A claim against an employer for a failure to give advice which might have mitigated personal injury is not itself a claim for personal injuries, and so is subject to the normal three year limitation period.

Citations:

Times 14-May-1999

Statutes:

Limitation Act 1980 11

Jurisdiction:

England and Wales

Personal Injury, Limitation

Updated: 10 May 2022; Ref: scu.80769

The claimant’s cause of action for lung fibrosis did not arise at the time he was exposed to asbestos between August 1952 and May 1953 because at that stage he had not suffered physical injury by May 1953. Basing himself on the evidence of Dr Rudd the court held that for a long time after exposure the defence mechanisms of the body held their own and only became exhausted after a period of equilibrium which lasted well after 4th June 1954, the relevant date for limitation.

Judges:

Piers Ashworth QC

Citations:

Unreported, 8 December 1987

Cited by:

Approved – McCaul v Elias Wild 14-Sep-1989
The plaintiff who had suffered pleural thickening from inhalation of asbestos fibres in 1943 – 1950 suffered no actionable injury until about 1985, when he first experienced breathlessness. . .
Cited – Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA 6-Feb-2006
The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
Lists of cited by and citing cases may be incomplete.

Limitation, Personal Injury

Updated: 10 May 2022; Ref: scu.238330