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 contend that the section should be construed or applied not only strictly but, in the interest of public policy, restrictively. So far as construction is concerned, the words of the section are clear and unambiguous. It is impossible to construe the word ‘equitable’ narrowly or liberally. It is either equitable or inequitable to disapply the fixed time limit in any given set of circumstances, although different people may have different views of what is equitable in particular cases. The appellants argued that section 2D should be confined to ‘exceptional cases’. That is precisely what the Act provides, since every case in which the court decides that the application of the norm would be inequitable is, ex hypothesi, an exceptional case’.
Lord Denning MR discussed the new statutory discretion given by the 1975 Act, and said: ‘The granting of this discretion is a revolutionary step . . The value of this wide discretion is well shown by the present series of cases. They all arise out of circumstances which the various committees never had in mind at all. In each of the three cases there were negotiations for a settlement, but the plaintiff’s solicitors, by the merest slip, allowed time to run out. They failed to renew the writ in time. This slip did not prejudice the defendant or his insurers in the least. Yet as soon as the insurers discovered it, they cried ‘snap’ and broke off the negotiations. They said to the plaintiff: ‘You are statute-barred. We are not liable. You sue your own solicitors for negligence. Make their insurers pay. And not us.’ All of the judges rejected this submission. Each of the judges exercised his discretion in favour of the plaintiff. I think they were quite right. As a matter of simple justice, it is the defendant’s insurers who should pay the plaintiff’s claim. They have received the premium to cover the risk of these accidents. They should not be allowed to foist their liability on to the plaintiff’s solicitors or their insurers by calling ‘snap’ as if it were a game of cards.’


Denning MR, Ormrod LJJ


[1978] 3 WLR 1, [1978] 2 All ER 851, [1978] QB 886


Limitation Act 1939 2D, Limitation Act 1975


England and Wales

Cited by:

CitedWalkley 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 . .
CitedHorton 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 . .
CitedAktas 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.


Updated: 30 April 2022; Ref: scu.200282