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
