Kamar v Nightingale
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Eady |
| Judgment Date | 14 December 2007 |
| Neutral Citation | [2007] EWHC 2982 (QB),[2008] EWHC 2982 (QB) |
| Docket Number | Case No: CC/2007/PTA459 |
| Court | Queen's Bench Division |
| Date | 14 December 2007 |
[2007] EWHC 2982 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Eady
Case No: CC/2007/PTA459
Martin Westgate (instructed by Bhatt Murphy) for the Respondent
Roger Stewart QC (instructed by Fishburns) for the Appellant
Hearing date: 3 December 2007
HTML VERSION OF JUDGMENT
There is before the court an appeal from a decision of His Honour Judge Latham made at the Central London County Court on 25 June 2007, following a three day hearing which had taken place on 22 and 23 May and 4 June. Permission to appeal was granted by Teare J on 23 August. The claim is for damages for negligence against a barrister in respect of a criminal trial which concluded at the Reading Crown Court as long ago as 10 December 1997. On the following day, Mr Kamar (the Claimant in the present proceedings) was sentenced to five years imprisonment for grievous bodily harm together with four years, concurrent, for threats to kill. The convictions were set aside on 16 March 1999 because there had been no good character direction in the summing up, and the comment was made by Henry LJ in the judgment that the present Defendant (Mr Nightingale) should have introduced Mr Kamar's good character in the course of the trial.
The decision under appeal is that whereby Judge Latham set aside the provisions of the Limitation Act 1980 in accordance with s. 33, which is as follows:
“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 11 A] 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.
[(1 A) the court shall not under this section disapply-
(a) subsection (3) of section 11 A; or
(b) where the damages claimed by the plaintiff are confined to damages for loss of or damage to any property, any other provision in its application to an action by virtue of Part 1 of the Consumer Protection Act 1987.]
(2) The court shall not under this section disapply section 12(1) except where the reason why the person injured could no longer maintain an action because of the time limit in section 11.
If, for example, the person injured could at his death no longer maintain an action under the Fatal Accidents Act 1976 because of the time limit in Article 29 in Schedule 1 to the Carriage by Air Act 1961, the court has no power to direct that section 12(1) shall not apply.
(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…;
(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 plaintiffs 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.
(4) In a case where the person injured died when, because of section 11 [or subsection (4) of section 11A], he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on the part of the deceased.
(5) In a case under subsection (4) above, or any other case where the time limit, or one of the time limits, depends on the date of knowledge of a person other than the plaintiff, subsection (3) above shall have effect with appropriate modifications, and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit.
(6) A direction by the court disapplying the provisions of section 12(1) shall operate to disapply the provisions to the same effect in section 1(1) of the Fatal Accidents Act 1976.
(7) In this section 'the court' means the court in which the action has been brought.
(8) References in this section to section 11 [or 11A] include references to that section as extended by way of the preceding provisions of this Part of this Act or by any provision of Part III of this Act.”
The Judge found that the Claimant had the requisite knowledge of his personal injury (which relates to mental health) by 20 October 1998, which would mean that the three year period would have expired on 19 October 2001. Specific knowledge as to the criticism of Mr Nightingale in connection with good character was found to date from shortly after Mr Kamar received a letter from his solicitors in December 1998, which would entail a correspondingly later expiry of limitation.
The proceedings with which I am now concerned were started on 1 December 2006, although they were only served in March 2007. The first notification to Mr Nightingale that there was to be a claim for personal injuries took place in January 2006. The proceedings are thus apparently well out of time, although it is right to record that, by way of proposed cross-appeal, Mr Kamar now seeks to suggest that knowledge of his medical condition was not acquired until March 2006, when he obtained a copy of a report from his psychiatrist, Dr Lipsedge.
The essential question for the Judge was whether it was inequitable to extend the limitation period. It was for Mr Kamar to show why Mr Nightingale should be deprived of the limitation defence.
What is clear is that the circumstances of this case (in contrast to some of the cases cited, in which the limitation period had only been extended by a small margin) do engage the primary public policy consideration underlying the limitation regime, in particular, that people should not find themselves vexed by claims that are “stale”. As Lord Griffiths observed in Donovan v Gwentoys Ltd [1990] 1 WLR 432, 478: “The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim that is a claim with which he never expected to have to deal”. Nor can the defence that Nightingale seeks to pray in aid be characterised as a “windfall” or as “an unexpected adventitious advantage”: see e.g. Hartley v Birmingham City District Council [1992] 2 All ER 213, 227 (Leggatt LJ).
The Judge highlighted two matters in particular. First, he contrasted the position of Mr Nightingale's instructing solicitor (Mr Jackson), who had been joined as the Second Defendant in the proceedings. The Judge concluded that criticisms of the solicitor's preparation for trial would require a close examination of documentation which is no longer available. In Mr Nightingale's case, by contrast, the claim in negligence did not require a close examination of documents (or so the Judge held), since liability depended essentially on what was said to be an admitted failure on his part to put in Mr Kamar's good character. The Judge thought that the absence of documentation would not prejudice Mr Nightingale as it would Mr Jackson.
While that may be so as far as breach of duty was concerned, it is necessary also to have regard to any possible prejudice caused Mr Nightingale's position (and, for that matter, the position of the solicitor also) by the passage of time, in so far as it impacted on the potential issues of causation and quantification. That is a point which lies at the heart of the submissions of Mr Stewart QC, on Mr Nightingale's behalf, on this appeal.
The second point emphasised by the Judge was that if Mr Nightingale retained no recollection of the original proceedings, as he claimed, either at trial or in the Court of Appeal, that was his misfortune. Moreover, it was said to be his fault that he had not notified his insurers or kept his papers together. It seems to have been thought that the reference by the Court of Appeal to his...
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...later in this judgment of Raggett at first instance. 115Chagos Islanders v Attorney General [2003] EWHC 2222 (QB); see also: Kamar v Nightingale [2007] EWHC 2982 (QB) at 116 Court of Appeal at [23]–[26], commenting on Bryn Alyn at [81] 117 [2016] EWHC 3336 (QB) paragraph 51. 118 [2016] EWHC......