Jones v G. D. Searle & Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL,LORD JUSTICE EVELEIGH,MR. JUSTICE MICHAEL DAVIES |
| Judgment Date | 24 April 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0424-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Interlocutory Appeal No. 61 |
| Date | 24 April 1978 |
[1978] EWCA Civ J0424-3
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Lord Justice Roskill
Lord Justice Eveleigh
and
Mr. Justice Michael Davies
MR. G. HAMILTON, Q. C. (Instructed by Messrs. Herbert Smith & Co.) appeared on behalf of the Defendants/Appellants.
MR. J.P. HARRIS, Q.C. and MR. K. GODDARD (Instructed by Messrs. Sharp Pritchard &. Co., agents for Messrs. Betesh, Fox & Co., Bolton) appeared on behalf of the Plaintiff/Respondent.
This is an appeal from an Interlocutory Order made by A Mr. Justice Mais, sitting in Chambers in Manchester, on 14th December last year, when the learned Judge dismissed an appeal by the Defendants in these proceedings, from an order of the District Registrar which, though requiring: the Plaintiff to answer six interrogatories, bad refused to order the Plaintiff to answer the seventh interrogatory sought by the Defendants. The learned Judge granted leave to appeal and indeed his careful judgment obviously contemplated that the matter might be taken further.
The appeal raises a novel point under section 2D of the Limitation Act 1975. Section 2D is one of the new sections which that Act inserted in the Limitation Act 1939 after section 2 of the latter Act.
The action is brought by Mrs. Jones, a married lady, against G.D. Searle & Company Ltd. The writ was issued on 8th June 1976. It was a generally endorsed writ, and claimed without further particularisation "damages for negligence and/or breach of contract". But the details of the claim appear in the Statement of Claim served in October 1976.
The Statement of Claim averred: "The Defendants were at all material times the manufacturers of the oral contraceptive drug known as 'Ovulen'.", and that as long ago as between February 1966 and September 1969, this lady took Ovulen on a regular monthly basis with the exception of a short period between the autumn of 1968 and, the early spring of 1969. The Statement of Claim further averred that in September 1969 the Plaintiff developed venous thrombosis of the right leg and that that thrombosis was the result of the use of the drug and was followed by a calf vein thrombosis in the Plaintiff's left leg. There followed in paragraph 4 particulars of alleged negligence on the part of the Defendants.
To that Statement of Claim a Defence was served on 27th October 1976. That Defence pleaded in paragraph 8 the Limitation Act 1939, as amended, the allegation being that the alleged cause of action did not arise within three years before the issue of the writ, a statement which is undoubtedly true inpoint of fact. But in reply - the Reply was delivered in January 1977 - in paragraphs 3 and 4, the Plaintiff made these further allegations: "3. The Plaintiff did not have knowledge within the meaning of Section 2A of the Limitation Act 1939 until a time less than 3 years from the date of the commencement of proceedings herein. In the alternative the Plaintiff will contend that in any event it will be equitable to allow the action to proceed by reason of the provisions of Section 2D of the said Act, in particular having regard to the fact that the Plaintiff was unable to obtain Legal Aid to commence proceedings herein until after 15th March 1976. On the said date the Plaintiff obtained the Opinion of Leading Counsel, given in the light of documentary evidence from the United States of America, which said evidence had not been available to the Plaintiff until the granting of a limited Legal Aid certificate on the 11th April 1975 to meet the cost of production of the same." The reference in paragraph 3 of the Reply to section 2A of the Limitation Act 1939 is a reference to one of the lettered sections which the 1975 Act inserted in the Limitation Act 1939. So there is the Plaintiff in terms setting out section 2D of the 1975 Act.
It will have been observed, as I read paragraph 4 of the Reply, that there is a reference in that paragraph to the Plaintiff having obtained an Opinion of Leading Counsel. We are told that a request was made for the production of that Opinion but was refused on the ground of professional privilege. That refusal has not hitherto been challenged on behalf of the Defendants.
Section 2D of the 1975 Act is the all important statutory provision for the purpose of this appeal and I will read part of that section: " 2D.(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 2A or 2B 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 thoseprovisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates."
I need not read subsection (2); I go to subsection (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;" - I need not read (b), (c) and (d) but I must read (e) and (f) in full: "(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act of 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.
Now the seventh interrogatory which the Defendants sought to require the Plaintiff to answer must be read in conjunction with the fifth and sixth interrogatories, both of which have been answered. The fifth interrogatory was: "Please look at Paragraph 4 of your Reply herein. Did you not receive advice from Counsel before 15th March 1976?" The answer to that was "Yes". The sixth interrogatory was "If the answer to the fifth Interrogatory is 'Yes', when did you receive such advice and in each case was it oral or in writing and was it from Leading or Junior Counsel?" The answer to that was "I received advice from Junior Counsel on or about the 29th September 1971 I...
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