Hartley v Birmingham City District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LEGGATT,LORD JUSTICE PARKER |
| Judgment Date | 24 July 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0724-6 |
| Docket Number | 91/0778 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 1991 |
[1991] EWCA Civ J0724-6
Lord Justice Parker
and
Lord Justice Leggatt
91/0778
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
(Mr. Justice Owen)
Royal Courts of Justice
MR. RICHARD MAWREY QC and MR. ANDREW JORDAN (instructed by Messrs Sharpe Pritchard; London Agents for Messrs Shakespeares) appeared on behalf of the Appellant (Plaintiff).
MR. DERMOD O'BRIEN QC and MR. SIMON GASH (instructed by Messrs Penningtons; London Agents for Messrs Edge & Ellison, Birmingham) appeared on behalf of the Respondents (Defendants).
On the 10th December 1986, the appellant plaintiff suffered an accident whilst visiting a primary school owned and occupied by the respondent defendants. The relevant limitation period would accordingly have expired on the 9th December 1989 but as that day was a Saturday it is common ground that the period was in effect extended until Monday 11th December 1989. Unfortunately the writ was not issued until the morning of the 12th December.
The result of this was that on the 21st March 1990 two applications came before the Deputy District Registrar in the Birmingham District Registry. Those applications were an application by the plaintiff for a direction under section 33 of the Limitation Act 1980 disapplying the provisions of section 11 of that Act to her action and an application by the defendants to strike out the action on the ground that it was statute barred. It was common ground that the defendants' application depended entirely on the result of the plaintiff's application. The Deputy Registrar therefore heard the plaintiff's application first. He dismissed it and then granted the defendants' application. The plaintiff appealed to the judge in chambers. Her appeal was heard by Owen J. who on the 13th July dismissed it but granted leave to appeal. Pursuant to that leave she now appeals to this court.
The relevant facts are not in dispute. They were summarized by the judge as follows:
"On 6th January 1987 the plaintiff's husband wrote to the defendants indicating the date and manner of the accident and the injury resulting. On 22nd January 1987 the plaintiff's husband wrote stating that his wife intended to make a claim for damages. On 26th March 1987 the defendants' insurers wrote indicating that they were concerned. On the 12th October 1987 the defendants' insurers in an open letter made an offer in settlement: this was not accepted. On 20th November 1987 the defendants' insurers increased their offer to £350: this was not accepted. The plaintiff then instructed solicitors. There was correspondence between them and the defendants' insurers. The insurers declined to admit liability. As the Registrar said: 'It was not unreasonable for the plaintiff and her solicitor to conclude that liability would not be in issue'. Between June 1988 and November 1989 further medical evidence was requested and obtained.
The relevant limitation period expired on the 9th December 1989. This was a Saturday. The court office was closed which had the consequence that the Writ could have been properly issued on the 11th December 1989. The file came to the solicitor's attendance at 5.15 p.m. in the evening of the 11th December 1989. It was then too late to issue the Writ. The Writ was issued the following day, the 12th December 1989. Thus, the issue of the writ was out of time by one day. To the layman this could be of no consequence as the defendants' insurers had for a long time known of the claim and the delay could not have affected the cogency of the evidence even if liability was denied."
Before turning to the law I should add the following facts. It is accepted by the defendants that they are liable for such injuries as were due to the accident and they have expressly disclaimed any allegation of contributory negligence. If the action is allowed to proceed the issues will therefore be (a) what injuries were caused by the accident and (b) what is the appropriate monetary award for such injuries. For the plaintiff it is accepted that if the action does not proceed she will have an unanswerable claim against her solicitors.
Section 33 of the Limitation Act 1980 , so far as relevant, provides:
"(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.
…
(3) 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 or (as the case may be) by section 12;
(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;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(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;
(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."
As to the specific matters to which the court must have regard the position is clear. I take them in turn:
(a) the actual delay was a matter of hours only, namely from the close of the Writ Office on the 11th December until shortly after it opened on the morning of the 12th December. It may also be noted that had the position been discovered two hours earlier on the 11th December the writ would no doubt have been issued in time. The reason for the delay was a slip on the part of the solicitors.
(b) The cogency of the evidence adduced or likely to be adduced by both sides is wholly unaffected by the delay.
(c) No criticism can be made of the defendants' conduct.
(d) Does not apply.
(e) The Plaintiff acted with unusual promptness. The possibility of a claim was intimated in less than a month and a claim formally notified just over two weeks thereafter.
(f) The Plaintiff contacted solicitors on the 16th December 1987 and on the 27th January 1988 instructed them to pursue her claim. It is not and could not be suggested that she should have taken advice earlier. In the period between notification of the claim and the 12th December 1987 she had been negotiating with the Defendants' insurers who had made two open offers the last of which was on the 20th November 1987.
As to medical advice, there is also no criticism. In the period between January 1988 and November 1989 both parties had sought and obtained medical reports.
In the result what is the position? It is simply this. If the action is not allowed to proceed the plaintiff will be deprived, through no fault of her own, of an action to which there is no defence on liability. The claim was promptly notified and the defendants' ability to defend the action on the merits is not in the slightest degree affected by the fact that the writ instead of being issued in the afternoon of the 11th December was issued in the morning of the 12th December. In this connection it may be noted that had the writ in fact been issued on the 11th December it need not have been served until the 10th December 1990 and had this happened the defendants would have had no complaint. They would have been obliged to defend the case on the merits. Although, however, the plaintiff will be deprived of her claim against the defendants if the action is not allowed to proceed she will have an equal (and possibly better) claim against her solicitors.
As to the defendants, the fact that the writ was issued a few hours late provides them, if section 11 is not disapplied, with a wholly fortuitous cast-iron technical defence to a claim, which in justice they ought to meet, of which defence they will be deprived if section 11 of the 1980 Act is disapplied.
I turn to the authorities and first to Firman v. Ellis [1978] QB 886. In that case the court had to consider section 2D of the Limitation Act 1939 as amended by the Limitation Act 1975, which section was replaced without material change by section 33 of the 1980 Act. The facts in the three cases there in question were very different. The writs had been issued in time. They were, however, not served or renewed within the one year period of their validity. Applications to renew were refused and fresh writs were then issued and applications made in the fresh actions to disapply the relevant limitation provisions. The applications succeeded. Appeals to this court failed.
Referring to the discretion conferred by section 2D Lord Denning M.R. said...
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