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 having been struck out, the judge retained his discretion to disapply the limitation period, following Walkley.
Held: ‘I simply do not understand how it can be argued that because the first action brought out of time would not have been prejudiced by section 11 if the defendants did not or would not successfully have taken the limitation point, therefore the second action is not prejudiced by section 11. The second action is under direct threat of being defeated by a time-bar defence. ‘ Walkley was anomalous and should be confined to its facts. ‘Because the judge misdirected himself in material respects, we must exercise our own discretion. The question is whether it is equitable to allow the action to proceed. The answer is given by balancing the prejudice to the plaintiff against the prejudice to the defendant having regard to the specific factors and all the circumstances of the case. In summary this is a long delay, some of it unexplained. That delay is, however, mitigated by the fact that the defendant had very early notice of the claim, admitted liability and was well on the road to preparing to meet the damages claim when the guillotine fell. ‘
Judges:
Lady Justice Arden DBE Lord Justice Ward Lord Justice Dyson
Citations:
[2006] 1 WLR 1330, [2006] EWCA Civ 91, Times 06-Mar-2006
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Confined to its facts – 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 – 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 – 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 – 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 – 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 . .
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 – 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 . .
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 – KR and others v Bryn Alyn Community (Holdings) Ltd and Another CA 12-Feb-2003
The respondent appealed decisions by the court to allow claims for personal injury out of time. The claims involved cases of sexual abuse inflicted by its employees going back over many years.
Held: The judge had misapplied the test laid down . .
Cited – Donovan v Gwentoys Ltd HL 1990
The plaintiff, then a 16 year old girl slipped and fell whilst employed at the defendant’s factory. The limitation period expired on her 21st birthday. She commenced proceedings five and a half months after that date. The judge extended time under . .
Cited by:
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.
Personal Injury, Limitation
Updated: 05 July 2022; Ref: scu.238659
