Davidson v Aegis Defences Services (BVI) Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice McFarlane,Lord Justice Vos |
| Judgment Date | 11 December 2013 |
| Neutral Citation | [2013] EWCA Civ 1586 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 December 2013 |
| Docket Number | Case No: B3/2013/0361 |
[2013] EWCA Civ 1586
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR N WILKINSON QC (Sitting as a High Court Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Longmore
The Right Honourable Lord Justice McFarlane
and
The Right Honourable Lord Justice Vos
Case No: B3/2013/0361
Ms Leigh-Ann Mulcahy QC (instructed by Bolt Burdon Kemp) for the Appellant
Mr David Platt QC & Ms Farrah Mauladad (instructed by Kennedys Law LLP) for the Respondents
Introduction
The second defendant ("Aegis") was a company which, until July 2011, provided security services to western organisations operating in Iraq. It sub-contracted the recruitment and engagement of personnel to the first defendant, a wholly owned subsidiary of the second defendant. I shall refer to the defendants as "Aegis". A particular contract undertaken by Aegis was known as the Matrix contract in respect of which the client was the United States Government.
The claimant, Mr Davidson, was originally a member of the Parachute Regiment and had served in Iraq before he left the army in 2002. Thereafter he worked as a protection operative and in November 2007 was engaged as a Security Escort Team ("SET") member by Aegis on the Matrix project. On 22 nd November 2007 while in Basra, he participated in a medical training course run by a regional liaison team leader also employed by Aegis, Mr Craig Dickson. There were about six or eight participants and Mr Davidson was paired with a Mr Charles-Francis Love (Mr Love) for the purpose of the exercises which formed part of the training. Both were required to wear full military body armour, weapons and equipment. The first exercise was for Mr Davidson to drag Mr Love along the ground which he found very difficult; the second exercise was to lift Mr Love from the ground without assistance and carry him in a fireman's lift for 20 metres in high desert temperatures. The combined weight of Mr Love with his equipment and Mr Davidson's equipment was 155kg (24.4 stone). While doing this Mr Davidson sustained a back injury allegedly caused by rotation of his back under the heavy load. It did not appear to be too bad at first and Mr Davidson carried on the day's activities but it was hurting badly the next day and he reported the fact to Mr Dickson who referred him for medical assessment.
Mr Davidson's back did not improve and Aegis terminated his contract of employment with effect from 18 th December 2007 by which time Mr Davidson was back in England. Mr Craig Dickson made a short statement about the matter on 11 th December 2007 in which he said that he had demonstrated the correct method of lifting and carrying. Aegis reported the accident to the United States Department of Labor on 20 th December 2007. Negotiations took place with insurers which have resulted in payments of US$1 million under the U.S. Defense Base Act, US$ 156,000 under a personal accident policy taken out for him by Aegis and US$134,000 by way of medical expenses. Mr Davidson maintains, however, that the true value of his claim is about £1.71 million.
In about March 2009 he instructed Irwin Mitchell to pursue this claim against Aegis but they did not send a letter of claim pursuant to the pre-action protocol for personal injuries until 10 th December 2009 perhaps because they were awaiting a medical report which Mr Davidson sent to Aegis on 30 th October 2009. Matters proceeded in a leisurely fashion but on 23 rd July 2010 Aegis' insurers said that Aegis intended to deny liability. A letter requiring Aegis to make the disclosure required by the pre-action protocol letter elicited a response on 12 th October 2010 from Aegis' insurers that their inquiries were incomplete. The three year time bar for personal injury was due to expire on 22 nd November 2010 and Irwin Mitchell issued a claim form on 15 th November 2010. That had to be served within 4 months; a photocopy of the claim form was served on Aegis on 18 th February 2011 but that did not comply with CPR 6.3(1) which requires an original sealed claim form to be served. Aegis did not assert that the claim form had not been served until 15.30 hours on 15 th March when they consented to a request from Irwin Mitchell for an extension of time for service of the particulars of claim until 10 th May 2011. Mr Davidson applied for a further extension of time which was not agreed. An application was listed for 20 th June 2011, when Aegis said in the face of the court that the claim form had not been served.
This was, of course, a point which was legally correct although one of the great technicality; an application was made for an extension of time for service pursuant to CPR 7.6 until 26 th August 2011 or an order dispensing with service altogether. That application was refused by District Judge Birkby on 5 th September 2011 and an appeal from that order was dismissed by His Honour Judge Robinson on 13 th January 2012. Inevitably Mr Davidson was advised to instruct new solicitors; they issued a new claim form on 5 th April 2012 which was duly served on 10 th May 2012 together with an application to disallow the three year time bar pursuant to section 33 of the Limitation Act 1980. That application was dismissed by Mr Nigel Wilkinson QC sitting as a Deputy Judge of the High Court. He cited a dictum of Waller LJ in McDonnell v Walker [2009] EWCA Civ 1257; [2010] PIQR P 102 to the effect that it should not be easy for a claimant, who had failed to serve proceedings in time, to commence a second action and obtain a disapplication of the limitation period under s.33. He set out the guidance of Smith LJ given in Cain v Francis [2009] QB 754 at para 73 and then said:-
"23. Bearing those broad principles in mind, in my judgment the balance tips heavily towards the defendant, who has been caused a degree of unfairness by the initial delay in the notification of the claim, which has been aggravated by the continuing delay caused by the failure of the claimant to commence proceedings within the limitation period. Those difficulties have been exacerbated by the loss of documents in August 2011, which I have no good reason to doubt did occur. That loss took place nine months after the expiry of the limitation period and is not reflective, as I find, of any fault on the part of the defendants.
24. I am reinforced in my decision by the observations of Waller LJ in McDonnell, to which I have previously referred. The prejudice to the claimant in having to pursue an unanswerable claim against his former solicitor is slight by comparison to that confronting the defendants in the light of the history of his claim against them. This application therefore fails and is dismissed."
It is at this stage convenient to set out the relevant terms of section 33 of the Limitation Act 1980:-
" Discretionary exclusion of time limit for actions in respect of personal injuries or death.
(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 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates….
(2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to —
(a) The length of, and the reasons for, the delay on the part of the plaintiff;
(b) The extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11….
(c) The conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant…
(e) The extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; and
(f) The steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."
The claimant's submissions
Ms Mulcahy QC for Mr Davidson made four attacks on the judge's exercise of discretion. She submitted:-
i) McDonnell v Walker was inconsistent with the later authority of Aktas v Adepta [2011] QB 894 [2010] EWCA Civ 1170 which was to be preferred. The resolution of this conflict was said to be of great importance to those practising in the personal injuries...
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Kimathi and Others v The Foreign and Commonwealth Office
...of delay in considering issues of cogency of the evidence of the Claimants or the Defendant. As Longmore LJ said in Davidson v Aegis Defences Services (BVI) Limited110 at [19]: “PREJUDICE TO DEFENDANT WITHIN THE LIMITATION PERIOD … Prejudice during this period may not be relevant under sect......