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Limitation - From: 1985 To: 1989
This page lists 29 cases, and was prepared on 02 April 2018.
ÂAgromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd [1985] 2 All ER 436
1985
Arbitration, Limitation
Time begins to run on the collection of an arbitration award, not from the date upon which the award is made or published, but from the date when the paying party is in breach of its implied obligation to pay the award.
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Forsyth v A F Stoddard and Co Ltd 1985 SLT 51
1985
OHCS
Lord Justice Clerk Wheatley
Scotland, Limitation
An action for damages by an employee against his employer was raised 48 days after the expiry of the triennium due to an oversight by an assistant with the pursuer's solicitors. The sheriff refused to allow the action to be brought, the Sheriff Principal allowed it and on appeal the Second Division reversed the decision of the Sheriff Principal. Held: A pursuer in such circumstances has to accept responsibility for the sins of omission or commission of his solicitor as "the correct exposition of the law". since the pursuer was legally aided, the defenders would probably have to pay their own expenses, win or lose, whereas if the pursuer were refused the indulgence which he sought the defenders would not be placed in that position, was a relevant consideration: "In every case of this nature there is a common theme. If the pursuer is granted the court's indulgence the defender loses a cast iron case, since but for that he would be legally free from the claim, and he is faced with the risk of losing the case with the consequential financial repercussions. That is a factor to be taken into account. He has no way out of that. On the other hand, if the pursuer is not granted the court's indulgence his claim against the defender comes to an end, and the defender is freed and relieved of a claim which might have been a perfectly justifiable one. However, the pursuer might have, as here, an action against his solicitors for professional negligence which might or might not recoup him in whole or in part for the damages which he could no longer obtain from the defender. There are imponderables about such an alternative, and its outcome can vary from case to case. Neither of these contrasting considerations is in itself conclusive, and the weights to be applied to them respectively will again depend on the circumstances. In my opinion it is not illegitimate to have in consideration the strength of the case against the third party and the likelihood of a successful prosecution of such a case, but again that is just a factor. Another consideration (although the Sheriff Principal rejected it - wrongly in my view), even if it only carries a little weight, is the burden of the expenses the defenders have to bear even if they are successful, since the pursuer is a legally assisted person. This in a way is merely consequential on the major issue, but it is entitled to be taken into account for what it is worth."
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Collin v Duke of Westminster [1985] 1 QB 581
1985
CA
Oliver LJ, May LJ and Sir Roger Ormrod
Landlord and Tenant, Contract, Limitation
In 1975 the tenant sought to exercise his right to purchase the freehold reversion of his property. The landlord argued that the rent payable precluded any such entitlement. Under the law as then understood, the landlord's contention appeared correct. The leaseholder proceeded no further. In 1980 the law was clarified so as to indicate that he was so entitled, and in 1981 he sought to proceed with his claim. The landlord's contention that he had abandoned it failed at first instance. Held: The tenant's appeal failed. Oliver LJ: "As regards abandonment [the judge] held – and in my judgment he was clearly right in this – that in order to succeed the trustees had to show either some reliance and change of position amounting to an estoppel (of which there was no suggestion) or what amounted in effect to a contract for mutual release. Quite clearly there was no question of an express contract and what he had, therefore, to look for was whether there was material from which mutual promises could be implied. On the facts, he found himself unable to find any mutual release but, perhaps even more importantly, he held that the Act of 1967 and the regulations provided, as it were, a complete statutory code which regulated exclusively how the statutory contract of sale was to be either completed or discharged and that there was no room for the application of the common law concept of inferred abandonment by mutual consent.
With respect to the judge, I doubt whether this latter conclusion can be right. . . As he rightly pointed out there is, in the law of contract, no room for a concept of unilateral abandonment. What the court has to look for is . . . material from which there can be inferred mutual releases or mutual promises not to proceed. In other words…there has to be established, if only by inference, a fresh contract which has the effect of dissolving the relationship originally entered into by the parties and upon which one party still seeks to rely. Now tenants who are entitled to enfranchise under the Act of 1967 are not permitted to contract out of their entitlement, but there is nothing in the Act which prevents them, once their right of enfranchisement has accrued, from releasing contractually the immediate right of enfranchisement which they have acquired by serving a notice under the Act." The court agreed with the judge's alternative conclusion that on the facts of the case there was no material from which mutual releases could be inferred.
The essence of a specialty is a covenant under seal or an obligation imposed by statute.
Leasehold Reform Act 1967 - Limitation Act 1980
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Davis v Ministry of Defence Unreported, 26 July 1985
26 Jul 1985
CA
May LJ
Limitation
May LJ said: "Knowledge’ is an ordinary English word with a clear meaning to which one must give full effect; ‘reasonable belief’ or ‘suspicion’ is not enough. The relevant question merits repetition - “when did the appellant first know that his dermatitis was capable of being attributed to his conditions at work?."
Limitation Act 1980 14(1)
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Adams v Commission of the European Communities C-145/83; [1985] EUECJ C-145/83
7 Nov 1985
ECJ
European, Limitation, Information
Non-contractual liability - Protection of the confidentiality of information - Period of limitation.
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 Wilkinson v Ancliff (BLT) Ltd; CA 1986 - [1986] 1 WLR 1352
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Steamship Mutual Underwriting Association Ltd v Trollope and Colls Ltd [1986] 33 BLR 77
1986
CA
Lloyd LJ and May LJ
Construction, Limitation, Litigation Practice
The employers sued the builders and architects alleging defects in the air conditioning system. Later, cracking and displacement of the walls was discovered, caused allegedly by not having sulphate resisting cement, and defects in the wall ties. Allegations were made against the contractors and the architects and also structural engineers. The question then arose whether the amendments raised new claims for the purposes of section 35 of the 1980 Act. Held: May LJ said: "I think it is necessary to adopt a broad approach to these cases. At the stage of the issue of the writ or the service of the statement of claim, in the present context one is not, as I think, concerned with the minutiae of the cause of action which will ultimately have to be investigated at the trial. In the Limitation Act context, one asks in quite broad terms whether the relevant factual situation . . first came about, first was suable upon more than the three, six or twelve years previously. In the res judicata context one has to ask whether the issues in the hypothetical second action were realistically before the court in the hypothetical first action. Merely to rely upon the propositions which I have already quoted from Brunsden v Humphrey in the judgment of Bowen LJ, which was referred to in the judgment of Sankey LJ in Conquer v Boot , that it is a well settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once and for all, (entirely accurate though that is and I would not wish, with respect, to differ at all), nevertheless in the instant context I think that it effectively begs the whole question at the outset."
and "In the present case, if one remembers what a cause of action is (for instance, to refer back to the dictum in Letang), if one looks to the size of this particular building, to its complexities, to other matters of degree, to the statement of claim before the proposed reamendment, to the attitude of the appellants’ solicitors in the correspondence at the material time, to which I have referred, and avoids what I think are unnecessary subtleties, I feel bound to agree with the learned judge where he concluded, having referred to the cases on what is a cause of action, the statement of claim in both its original and amended form related only to the air conditioning. I think that its effect was to narrow the causes of action so that they became confined to breaches of contract concerned with air conditioning and negligence resulting in damages to the air conditioning. In the light of the definitions of a cause of action already referred to, I do not think one can look only to the duty on a party, but one must look also to the nature and extent of the breach relied upon, as well as to the nature and extent of the damage complained of in deciding whether, as a matter of degree, a new cause of action is sought to be relied upon. The mere fact that one is considering what are, as it is said, after all only different defects to the same building, does not necessarily mean in any way that they are constituents of one and the same cause of action.
Thus I conclude that whether there is a new cause of action in any circumstances is a mixed question of law and fact. I am satisfied that the learned judge correctly directed himself on the law on this point, and not only am I unable to say that he applied the law incorrectly to the facts of the case, I think positively that he applied that law correctly to the facts of the case."
and "In my opinion, to issue a writ against a party . . when it is not intended to serve a statement of claim, and where one has no reasonable evidence or grounds on which to serve a statement of claim against that particular party, is an abuse of the process of the court."
Lloyd LJ said: "in each case it will depend on the facts whether the damage gives rise to a separate cause of action, or not" and "there may be separate causes of action in relation to the same building, depending upon the facts of the case."
Limitation Act 1980 35
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Sevcon Ltd v Lucas CAV Ltd [1986] 1 WLR 462
1986
HL
Lord McKay of Clashfern
Intellectual Property, Limitation
A claim was brought for the infringement of a patent. It was brought after the specification had been published, but before the patent had been sealed. Held: Time might run from a date before the plaintiff was entitled to sue. The cause of action for infringement accrued at the date of the infringement even if that was before the date of sealing but the claim could not be enforced until the procedural requirement of sealing was met.
Lord McKay of Clashfern said: "If he were to institute proceedings for infringement before the patent for the invention was sealed, the procedural requirements of the proviso would not be satisfied but a statement of claim could not be struck out as disclosing no cause of action although it might be liable to be struck out as an abuse of the process of the court."
Patents Act 1949 13(4)
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Watson-Towers Ltd v McPhail 1986 SLT 617
1986
Lord Wylie
Scotland, Contract, Limitation
The pursuer submitted a motion for summary judgment for the value of goods which had been supplied subject to a reservation of title clause. The pursuer's evidence consisted of a letter from the defender making an offer expressed to be without prejudice but which attached a schedule listing the goods in its possession. Held: The schedule was admissible because it was, on the true construction of the letter, not a "hypothetical admission or concession for the purpose of securing a settlement" but a statement of fact.
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Rose v Express Welding Ltd Unreported, 21 January 1986; Transcript No 31 of 1986
21 Jan 1986
CA
Negligence, Limitation
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Powell v National Coal Board Times, 28 May 1986
28 May 1986
CA
Parker LJ, Sir George Waller
Personal Injury, Limitation
Limitation operates as a defence, and therefore it is for he who sets it up to establish it, and prove that the claim was time barred. Once the initial limitation period had elapsed, it was for the plaintiff to assert that the date of knowledge under the section was later than accrual of the cause of action. If the proposed defendant wished to assert earlier knowledge either in the plaintiff himself or in his solicitors or by way of section 14(3) it was for him to do so. A party's solicitor was not an "expert" within the meaning of section 14(3)(b). That provision was directed to experts in the sense of "expert witnesses". "expert" advice in Section 14(3) meant advice which would establish by expert means the chain of causation of the damages suffered by the plaintiff. This was not a fact which could only be established by expert means.
Limitation Act 1980 11 14(3)(b)
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Patterson v Ministry of Defence Unreported 29 July 1986; [1987] CLY 1194
29 Jul 1986
QBD
Simon Brown J
Personal Injury, Limitation, Damages
The plaintiff had been exposed to asbestos when working for the defendant. X-rays revealed development of pleural plaques, but these would remain asymptomatic. Held: Material damage sufficient to set time running was the same as damage necessary to complete a claimant's cause of action in negligence. The court rejected arguments that this was yet insufficient damage: "I have no doubt whatever that the Plaintiff has suffered material damage. It consists of the symptom – free pleural changes, the risk of pleural thickening deteriorating with the consequences I have indicated, the risk of mesothelioma developing and the understandable worry attendant upon these matters." A provisional award was made: "I therefore have to value in combination (a) the present symptom-free pleural changes; (b) the 5%-odd risk of further diffuse changes developing so as to aggravate the plaintiff's breathlessness, and (c) the anxiety which the plaintiff entirely understandably, and in my judgment reasonably, has hitherto suffered, in particular over the last two years, and to a far more limited degree, the worry he may still experience in the future, even though, as I have sought to emphasize, these future risks are really very small. Doing my best to arrive at a figure which accords reasonably with the scale established by Church and Sykes, both now 2 years old, and with my own views upon the particular facts of the instant case, I assess such damages in the sum of £1,250. There will accordingly be judgment for the plaintiff for damages in that sum assessed on the assumption that the plaintiff will not develop mesothelioma at any future stage."
"[S]ymptom-free pleural changes" could not, of themselves, constitute significant damage for the purpose of founding a cause of action but "In deciding whether material damage has been caused it is appropriate to have regard not merely to actual physical manifestation of injury, but also to whatever risks consequent upon the original injury may exist of future symptoms becoming manifest"
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 Kleinwort Benson Ltd v Barbrack Ltd; HL 1987 - [1987] AC 597; [1987] 2 Lloyds Rep 1; [1987] 2 WLR 1053
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 Amantilla Ltd v Telefusion plc; 1987 - [1987] 9 ConLR 139
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 Ketteman v Hansel Properties Ltd; HL 1987 - [1987] 2 WLR 312; [1987] AC 189
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Westminster City Council v Clifford Culpin and partners Unreported, 18 June 1987; Transcript No 592 of 1987
18 Jun 1987
CA
Kerr LJ
Limitation
It was questionable whether plaintiffs should be allowed the benefit of the full limitation period with virtual impunity where the facts are known and there is no obstacle to the speedy institution and prosecution of claims.
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BP Properties Ltd v Buckler [1987] EWCA Civ 2; (1988) 55 PC&R 337
31 Jul 1987
CA
Dillon LJ, Mustill LJ, Sir Edward Eveleigh
Land, Limitation
The putative owner of the paper title wrote to the defendant who occupied the relevant property in October 1974 as follows: "Since we wish to help you as much as possible we are prepared to allow you to remain in occupation of the house and garden rent free for as long as you may wish and for the rest of your life if you so desire. I am pleased accordingly to confirm that we will not require you to give up possession during your lifetime or until such time as you may choose no longer to live in the house and we have given the necessary instructions so that no proceedings will be commenced until you personally no longer live there."
There was a pending warrant for possession against the defendant. Her solicitors produced the letter written to her from the paper title owner to the County Court judge who stayed the warrant as a result. They sought her instructions on the letter but before obtaining a response the then paper owner withdrew the warrant. The defendant never did respond to the letter by accepting or rejecting it. She remained in possession until her death some nine years later. The paper title owner contended subsequently that no claim for adverse possession could arise after October 1974 because by then the defendant was occupying the land pursuant to a licence and so her possession was not adverse. The licence was unilateral in the sense that it was not one to which she had expressly assented, but it was contended that this would make no difference. Held: Where a person claimed to have obtained a title by adverse possesssion, it did not matter if the person in possession did not know that his or her possession was lawful; the lawful title would still preclude the person with the paper title from evicting the person in possession.
Dillon LJ said: "The claim that a unilateral licence can stop time running is a new one. It may be of some general importance in that it would enable a person who is not prepared to incur the cost of bringing proceedings for possession or of enforcing a possession order to keep his title alive for very many years until it suits him to evict. It might be thought that for title to be kept alive in this way was contrary to the policy of the statute as exemplified by section 13 of the 1939 Act which reproduced earlier statutory provision to the same effect and prevented any right of action to recover land being preserved by formal entry or continual claim . . It may be that the result would have been different if Mrs Buckler had, assuming she had learnt of the letters, plainly told BP Properties Limited that she did not accept the letters and maintained her claims to be already the owner of the property. She, however, did not do that. She accepted her solicitor's advice that, as the warrant for possession had been withdrawn, she should do nothing while the 12-year period from the date of possession order expired . . Whether BP Properties could or could not in law in the absence of consideration have sought to determine in her lifetime the licence, they did not in fact seek to do so. Had they sought to do so they would in the absence of any repudiation of the letters by Mrs Buckler have had to have given Mrs Buckler a reasonable time to quit, as with any licensee. The nature of Mrs Buckler's possession after receipt of the letters cannot be decided just by looking at what was locked up in her own mind. It must depend even more on this aspect of the case, on the position as seen from the standpoint of the person with the paper title. What could that person have done? The rule that possession is not adverse if it can be referred to a lawful title applies even if the person in possession did not know of the lawful title. The lawful title would still preclude the person with the paper title from evicting the person in possession.
So far as Mrs Buckler was concerned, even though she did not 'accept' the terms of the letter, BP Properties Limited would in the absence of any repudiation by her of the two letters have been bound to treat her as in possession as licensee on the terms of the letters. They could not have evicted her (if they could have done so at all) without determining the licence. I can see no escape therefore from the conclusion that, whether she liked it or not, from the time of her receipt of the letters Mrs Buckler was in possession of the farmhouse and garden by the licence of BP Properties Limited."
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Arnold v Central Electricity Generating Board [1988] AC 228; Gazette, 25 November 1987; [1987] 3 All ER 694; [1987] 3 WLR 1009
22 Oct 1987
HL
Lord Bridge of Harwich, Lord Fraser of Tullybelton, Lord Brightman, Lord Ackner and Lord Oliver of Aylmerton
Constitutional, Limitation
The plaintiff was widow and administratrix of the estate of her deceased husband. He had worked from April 1938 to April 1943 for a predecessor to the CEGB. He had been exposed to asbestos dust as a result of his employer's negligence and breach of duty. In 1981 he began to suffer mesothelioma, a long-delayed result of his exposure, and he died in May 1982. Proceedings were issued in April 1984. It was agreed that any cause of action the deceased may have had was barred by section 21 of the 1939 Act one year after his employment had ceased, namely in April 1944. The issue was whether the 1963 Act or the 1975 Act revived the deceased's cause of action. Held: Any action time-barred before 4 June 1954 remained time-barred.
Lord Bridge thought it "beyond question that the Act of 1963 operated retrospectively, when the appropriate conditions were satisfied, to deprive a defendant of an accrued time bar in respect of a claim for damages for personal injuries in which the cause of action had accrued since 4 June 1954 and which had, therefore, been subject to the three year period of limitation introduced by the Act of 1954. This is the combined effect of the relevant provisions of sections 1, 6 and 15."
Lord Bridge accepted that: "Consistently with the presumption that a statute affecting substantive rights is not to be construed as having retrospective operation unless it clearly appears to have been so intended, it seems to me entirely proper, in a case where some retrospective operation was clearly intended, equally to presume that the retrospective operation of the statute extends no further than is necessary to give effect either to its clear language or to its manifest purpose. Construing sections 2A to 2D of the Act of 1939 in the light of section 3 of the Act of 1975, I think that full effect is given both to the language and to the purposes of the legislation if it is held retrospectively applicable to all personal injury actions previously governed by the three year limitation period under the Act of 1954, whether as then enacted or as amended by the Act of 1963. Conversely, I can find nothing in the language or discernible purposes of the statute which leads clearly, let alone avoidably, to the conclusion that defendants previously entitled to rely on the accrued six year and one year time bars under the original Act of 1939 which the Act of 1963 left intact were intended to be deprived of those accrued rights by the Act of 1975."
Limitation Act 1939 2A(1)
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Keenen v Miller Insulation and Engineering Ltd Unreported, 8 December 1987
8 Dec 1987
Piers Ashworth QC
Limitation, Personal Injury
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.
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Mount Carmel Investments Limited v Peter Thurlow Limited [1988] 1 WLR 1078
1988
CA
Nicholl LJ
Land, Limitation
The court considered a defence to an assertion of adverse possession, that the plaintiff had given notice of his intention to recover the land: "no one, either lawyer or non-lawyer, would think that a householder ceases to be in possession of his house simply by reason of receiving a demand that he should quit.
On the owner's argument time starts to run afresh by making a demand for possession. That is in flat contradiction to the long-recognised position and the statutory scheme where a squatter is in possession of another's land. Unless the squatter vacates or gives a written acknowledgment to the owner, the owner has to issue his writ within the prescribed time limit. Otherwise he is barred, because by section 15(1) he is barred from bringing any action to recover the land after the expiration of the 12-year period."
Land Registration Act 1925 15(1) 75(1)
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D W Moore and Co Ltd v Ferrier [1988] 1 WLR 267; [1988] 1 All ER 400
1988
CA
Neill LJ, Bingham LJ
Professional Negligence, Damages, Limitation
The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied that the action was out of time. Held: The purpose of the covenant was to protect the plaintiff's goodwill. That goodwill was damaged as soon as the agreements were executed, since the company lost its protection immediately. The action was out of time and failed. the cause of action against the solicitors accrued when the contract was entered into: "[S]o long as there was any risk that one of the first plaintiff's two directors might leave . . to establish a competing business, there must necessarily have been a depressive effect on the value of the first plaintiff's business." Whether any action later arose went as to quantification of the damage, and did not go as to the existence of the cause of action: "it is a question of fact in each case whether actual damage has been suffered."
Bingham LJ said: "On the plaintiffs' case, which for the purposes of this issue may be assumed to be wholly correct, the covenants against competition were intended, and said by the defendants, to be effective but were in truth wholly ineffective. It seems to me clear beyond argument that from the moment of executing each agreement the plaintiffs suffered damage because instead of receiving a potentially valuable chose in action they received one that was valueless."
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DW Moore and Co Ltd v Ferrier [1988] 1 WLR 267; (1988) 1 All ER 400
1988
CA
Neill LJ, Bingham LJ, Kerr LJ
Professional Negligence, Limitation
A solicitor was instructed to prepare an agreement providing for the introduction of a new working director into an insurance broking business carried on by a company. His instructions called for the new director to enter into a restrictive covenant which would take effect on his leaving the business. Through careless drafting the covenant was ineffective. The agreement (entered into in 1971 and renewed with the same defect in 1975) continued until 1980 when, on the director's departure from the business, the covenant was found to be defective. The company issued a writ against the solicitors in 1985. The appellant plaintiff argued that a defective covenant or similar legal document was a mere defect or weakness, that only ripened into relevant damage when the client actively and unsuccessfully sought to rely upon it. Held. The plaintiff's argument and appeal was rejected. The measure of damages was the measure sometimes loosely referred to as the contract or warranty measure. Had the solicitor done his job properly the plaintiffs would have obtained the benefit of an effective restraint of trade covenant. As it was, they received a worthless covenant. They suffered damage when the transaction was entered into. The limitation period ran from the date of a negligently drafted contract. However, each such case depended upon its own facts.
Bingham LJ said that if the liability is for the difference between what the plaintiff got and what he would have got if the defendant had done what he was supposed to have done, it may be relatively easy, to infer that the plaintiff has suffered some immediate damage, simply because he did not get what he should have got and: "On the plaintiffs' case, which for purposes of this issue may be assumed to be wholly correct, the covenants against competition were intended, and said by the defendants, to be effective but were in truth wholly ineffective. It seems to me clear beyond argument that from the moment of executing each agreement the plaintiffs suffered damage because instead of receiving a potentially valuable chose in action they received one that was valueless." and
"If, in a contractual claim for negligence, the court would have awarded other than nominal damages, I do not see how it can be said that an action in tort based on the same negligence would have been bound to fail for want of any damage as an essential ingredient of the cause of action."
Neill LJ said: "In the present case the judge rightly rejected the notion that where a solicitor gives negligent advice, damage is presumed to occur at the time when the advice is acted upon. I am satisfied that there is no such presumption. It is a question of fact in each case whether actual damage has been established." and
"The plaintiffs suffered damage 'because [they] did not get what [they] should have got.' The plaintiffs' rights under the two agreements were demonstrably less valuable than they would have been had adequate restrictive covenants been included." He continued: "it is a question of fact in each case whether actual damage has been suffered."
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Guidera v NEI Projects (India) Ltd Unreported, 17 November 1988
17 Nov 1988
McCullough J
Personal Injury, Limitation
The plaintiff was exposed to asbestos in 1952 and 1953 and later diagnosed with asbestosis. Held: He had suffered no injury by 4th June 1954 because physical injury would not occur for at least 5 (and more likely 10 – 20) years after exposure. Destruction of cells by macrophages or neurophils was not damage or injury for the purpose of creating a cause of action since destruction of cells in this way was a natural incident of daily life. This was so even on the basis that the claimant would, inevitably, suffer from asbestosis once exposure had begun.
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Bray v Stuart A West and Co (1989) 139 NLJ 753
1989
Warner J
Legal Professions, Limitation
The court's inherent supervisory jurisdiction over legal professions are not proceedings founded on any cause of action, and so are not subject to the Limitation Act.
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Linfood Cash and Carry v Thomson [1989] IRLR 235; [1989] ICR 518
1989
EAT
Wood P
Limitation, Employment
One employee had informed his employer that a fellow employee had stolen two books of credit notes. He refused to allow his identity to be disclosed for fear of reprisals. The Tribunal had held that the dismissal was unfair because although the employers had a genuine belief in the employee's guilt they had no reasonable ground for that belief and had not carried out as much investigation into the matter as was reasonable in all the circumstances; and in particular considered that in the absence of any corroborative evidence, a most stringent enquiry should have been made by management to ascertain that the informant was not actuated by improper motives. Held. The employer's appeal was dismissed. Wood P said that when assessing credibility: "the tribunal must not substitute their own view for the view of the employer, and thus they should be putting to themselves the question – could this employer acting reasonably and fairly in these circumstances properly accept the facts and opinions which it did? The evidence given is that given during the disciplinary procedures and not that which is given before the Tribunal. If a Tribunal is to say that this employer could not reasonably have accepted a witness as truthful, it seems to us that this decision must be based on logical and substantial grounds – good reasons."
The court set out a checklist to be used in assessing the reliability of an anonymous informant witness. "We have been told by both sides that there seems to be no decision of this court giving guidance upon appropriate procedures for an employer to adopt where informants are involved. It is obvious that from whichever side of industry one looks it is important that dishonesty and lack of trust should, where possible, be eliminated, but a careful balance must be maintained between the desirability to protect informants who are genuinely in fear, and providing a fair hearing of issues for employees who are accused of misconduct. We are told that there is no clear guidance to be found from ACAS publications, and the lay members of this court have given me the benefit of their wide experience.
Every case must depend upon its own facts, and circumstances may vary widely – indeed with further experience other aspects may demonstrate themselves – but we hope that the following comments may prove to be of assistance:
1. The information given by the informant should be reduced into writing in one or more statements. Initially these statements should be taken without regard to the fact that in those cases where anonymity is to be preserved, it may subsequently prove to be necessary to omit or erase certain parts of the statements before submission to others – in order to prevent identification.
2. In taking statements the following seem important:
(a) date, time and place of each or any observation or incident;
(b) the opportunity and ability to observe clearly and with accuracy;
(c) the circumstantial evidence such as knowledge of a system, or the reason for the presence of the informer and why certain small details are memorable;
(d) whether the informant has suffered at the hands of the accused or has any other reason to fabricate, whether from personal grudge or any other reason or principle.
3. Further investigation can then take place either to confirm or undermine the information given. Corroboration is clearly desirable.
4. Tactful inquiries may well be thought suitable and advisable into the character and background of the informant or any other information which may tend to add or detract from the value of the information.
5. If the informant is prepared to attend a disciplinary hearing, no problem with arise, but if, as in the present case, the employer is satisfied that the fear is genuine then a decision will need to be made whether or not to continue with the disciplinary process.
6. If it is to continue, then it seems to us desirable that at each stage of those procedures the member of management responsible for that hearing should himself interview the informant and satisfy himself that weight is to be given to the information.
7. The written statement of the informant – if necessary with omissions to avoid identification – should be made available to the employee and his representatives.
8. If the employee or his representative raises any particular and relevant issue which should be put to the informant, then it may be desirable to adjourn for the chairman to make further inquiries of that informant.
9. Although it is always desirable for notes to be taken during disciplinary procedures, it seems to us to be particularly important that full and careful notes should be taken in these cases.
10. Although not peculiar to cases where informants have been the cause for the initiation of an investigation, it seems to us important that if evidence from an investigating officer is to be taken at a hearing it should, where possible, be prepared in a written form.
"This case also appears to highlight the problems facing a Tribunal when considering credibility. As Mr O'Hara confirmed to us, the tribunal must not substitute their own view for the view of the employer, and thus they should be putting to themselves the question – could this employer acting reasonably and fairly in these circumstances properly accept the facts and opinions which it did? The evidence is that given during the disciplinary procedures and not that which is given before the Tribunal.
If a Tribunal is to say that this employer could not reasonably have accepted a witness as truthful, it seems to us that that decision must be based upon logical and substantial grounds – good reasons. Instances might be – that the witness was a bare faced liar, who must have given that impression to the employer at the relevant time; that the witness was clearly biased – provided that such a bias should have been clear at the relevant time; that documents available at the relevant time clearly showed the witness to be inaccurate and that such documentary evidence was ignored by the employer.
However, there could be other less obvious situations where mere vagueness and uncertainty would not be sufficient, and it should never be forgotten that cross-examination by experienced advocates may produce a picture not made evident during the disciplinary procedures. For the Tribunal merely to prefer one witness to another might well not be sufficient as this could be to substitute their own view. The employers have the peculiar advantage over the Tribunal of having an intimate knowledge of the geography, the nature and workings of the business and the various members of the staff."
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 Buckinghamshire County Council v Moran; CA 13-Feb-1989 - [1990] 1 Ch 623; [1989] EWCA Civ 11; [1990] Ch 632; [1989] 2 All ER 255
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White v Glass Times, 18 February 1989; Transcript No 140 of 1989
17 Feb 1989
CA
Kerr LJ
Personal Injury, Limitation
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 claimed limitation under Walkley in defence of the second action. Held: The Walkley principle does not apply to defeat in limine a second action, notwithstanding that the defect was capable of being cured by substituting the names of representative members. The plaintiff could rely on section 33: "There was no action in being against the present defendants at the time when the limitation period expired or thereafter when the application under section 33 was made. … But it seems to me that the plaintiff is now prejudiced by section 11, since he cannot bring this first properly constituted action unless he can avail himself of section 33. … In my view, the position is now that he is prejudiced by section 11 and is entitled to rely on section 33. … This is not a case of a mere repetition of an identical action which has been instituted during the limitation period. In the present case the action which had started during the limitation period was defective and invalid and not capable of resurrection… The Court is therefore entitled to conclude that the provisions of section 11 prejudiced the plaintiff in relation to the present action. Accordingly I would dismiss this appeal and allow this action to proceed by reason of section 33."
Limitation Act 1980
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Horner v Cartwright Unreported, 11 July 1989
11 Jul 1989
CA
Stuart Smith and Ralph Gibson LJJ
Limitation
Stuart Smith LJ discussed the status of pleadings in a limitation as an acknowledgement: "It is unnecessary for the purpose of this judgment to deal with Mr. Horner's submission that a statement in an action once it is contained in a pleading enures from day to day as a sort of continuing or running acknowledgment. As at present advised, I do not accept that submission for one moment, but it is unnecessary to decide that for the purpose of this appeal."
1 Citers
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McCaul v Elias Wild Unreported, 14 September 1989
14 Sep 1989
McNeill J
Personal Injury, Limitation
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.
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