Mr Christopher Holmes v S & B Concrete Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Martin Spencer |
| Judgment Date | 20 August 2020 |
| Neutral Citation | [2020] EWHC 2277 (QB) |
| Court | Queen's Bench Division |
| Date | 20 August 2020 |
| Docket Number | Case No: E85YJ201/BM90201A |
[2020] EWHC 2277 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
On appeal from the County Court of Lincoln
Order of HHJ Owen dated 27 September 2019
COUNTY COURT NO: E85YJ201
APPEAL REF: BM90201A
Birmingham Appeal Centre
Priory Courts, 33 Bull Street,
Birmingham B4 6DS
Mr Justice Martin Spencer
Case No: E85YJ201/BM90201A
Mr Daniel Penman (instructed by Baker & Coleman) for the Claimant/Appellant
Mr Michael Kent QC (instructed by DWF Law LLP) for the Defendant/Respondent
Hearing dates: 27 July 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
With permission of Soole J, the Claimant appeals against the decision of HHJ Owen QC dated 27 September 2019 whereby he dismissed the Claimant's claim for noise-induced hearing loss (“NIHL”).
The issue in this case is whether the learned judge erred in failing to find that, the Respondent having been deemed to have been in liquidation continuously since 1995, limitation did not run between 1995 and 4 May 2018, applying Financial Services Compensation Scheme Limited v Larnell (Insurances) Limited (in liquidation) [2005] EWCA Civ 1408 (hereafter “ Financial Services”), with the result that the action was not statute barred.
The background facts
The Claimant was employed by the Defendant between approximately 1986 and 1993 as a joiner at their factory premises in Barnsley. He made this claim for alleged NIHL, supported by a medical report dated 14 November 2018 from a Consultant Otolaryngologist, Mr Verma.
The Defendant employer was dissolved on 19 August 1995 following the voluntary winding-up of the company pursuant to section 106 of the Insolvency Act 1986. On the judge's findings, the Claimant's date of knowledge for the purposes of the Limitation Act 1980 arose by at least mid-2007: by that date he was aware that he had suffered a significant hearing loss which he considered was (probably) attributable to the noisy working conditions of which he now complains.
On 13 August 2018, the Claimant applied by Claim Form for the restoration of the Defendant to the Register of Companies, clearly for the purposes of bringing this claim against the Defendant's insurers pursuant to the Third Party (Rights against Insurers) Act 1930. By order of District Judge Richmond sitting in the Manchester Business and Property Court, an order was made restoring the Defendant to the Register and ordering that the company do continue in creditors' voluntary liquidation. That application was served only on the Registrar of Companies, but not on the Defendant's insurers and was unopposed.
Prior to the restoration of the company to the Register the Claimant issued this claim for damages on 30 May 2018 and, on 20 August 2018, served Particulars of Claim alleging negligence and breach of statutory duty. At paragraph 9 it was pleaded:
“The claimant will contend that their date of knowledge within the meaning of the Limitation Act 1980 occurred less than three years prior to the date of issue of these proceedings. In so far as it may be established that the claimant's date of knowledge occurred more than three years prior to the date of issue of these proceedings, the claimant will invite the court to exercise discretion pursuant to section 33 of the Limitation Act 1980 to allow this action to proceed. It would be equitable to do so in all the circumstances of the case.”
By order of District Judge Corkill dated 18 February 2019, an order was made for the trial of a preliminary issue as to whether the claim was statute-barred and whether there should be an order under section 33 of the Limitation Act 1980 to disapply section 11. It was this preliminary issue that came before Judge Owen QC on 27 September 2019.
The judgment of HHJ Owen QC
The principal issues before the learned judge concerned the date of the Claimant's knowledge for the purposes of sections 11 and 14 of the Limitation Act 1980 and whether he should exercise his discretion to disapply the limitation period under section 33 of the Act. For reasons which it is unnecessary to consider for the purposes of this judgment, the learned judge decided that the Claimant's date of knowledge was mid-2007 and that it would not be equitable for him to exercise his discretion to disapply the limitation period pursuant to section 33. There is no appeal against that part of the judgment.
However, in his skeleton argument below on behalf of the Claimant, Mr Penman relied upon a further, separate argument: this was that the effect of restoration of the company to the Register was retrospective and the Defendant was therefore deemed to have been in creditors' voluntary liquidation since at least 17 May 1995. Relying upon Financial Services in which was held that “if [a claim] is not time-barred at the commencement of the bankruptcy or winding-up, it does not become time-barred by the passage of further time thereafter,” he argued that, in order for the case to be statute-barred, the Claimant would have had to have had relevant knowledge for the purposes of the 1980 Act before 17 May 1992, that is, three years prior to the date since when the Defendant was deemed to have been in creditors' voluntary liquidation. On that basis, he argued that the claim was not statute-barred. Mr Penman renewed that argument orally before Judge Owen QC.
In response, counsel for the Defendant in the court below, Mr Eccles, submitted that the decision in Financial Services, if applied to the facts of this case or any similar case (which is very common) would produce the remarkable and hitherto unknown outcome that whatever inequitable conduct by a claimant, the defendant would have no means of challenging the claim on the grounds of limitation. He submitted that Financial Services could and should be distinguished and that the appropriate approach is that identified in the decision of the Court of Appeal in Smith v White Knight Laundry Limited [2002] 1 WLR 616. Following that case, the approach which would do justice between the parties was to determine the two issues – limitation and restoration of the company to the Register – concurrently so that if, as was the case, it appeared that the merits of the section 33 issue were against the Claimant, the court could refuse to restore the company to the register and refuse to disapply section 11.
Rejecting the additional argument on behalf of the Claimant, the learned judge said:
“28. I am not persuaded by Mr Penman that the decision in Financial Services has that effect in light of the facts of this case. I am satisfied that different considerations arise in this case and in ‘personal injury claims’ (see Financial Services at paragraph 28). Mr Eccles drew attention in his submissions to section 1030(3) and section 1032(3) of the 2006 Act. These provisions are similar in effect to the statutory provisions applicable in Smith v White Knight (section 651 (5) and (6) of the 1986 Act). That is, when considering the application to restore in the present case the court was bound (‘shall’) have regard to its power to make such directions which protect the rights or position of any person who might be affected by the proposed order for restoration (that is, the defendant or his insurer). Furthermore, I accept Mr Eccles’ submission that this court in dealing with different statutory provisions concerning limitation to those which applied in Financial Services, namely section 14A and 14B. In the present case, a personal injury claim, the court is directly engaged by the operation of sections 11, 14 and in particular 33 which specifically require the court to determine the question of whether it would be equitable to disapply section 11, in light of section 14. In assessing the balance of prejudice and that which is equitable, the court is concerned with wider considerations than those in, for example, Financial Services. In my judgment the correct approach, certainly consistent with the overriding objective, is essentially that set out in Smith v White Knight Laundry, albeit involving different statutory provisions which are not material for present purposes. This approach might also be supported by the propositions suggested by Mr Eccles to the effect that this is a claim that concerns the benefits of an employer's liability policy, that is which is subject to the compulsory statutory provisions and which is ring-fenced to respond to this very claim. But I am content to determine the application before me on the basis that, this being a personal injury claim, in which the cause of action accrued pursuant to section 11 at or about the time of the alleged exposure at work (long before the voluntary winding-up and dissolution in 1992) and where the claimant had acquired relevant knowledge within the meaning of section 14 as long ago as mid-2007 and yet, for reasons not explained satisfactorily to the court, the claimant (wilfully) delayed bringing his claim until mid-2018 having given notice by letter of claim two years earlier, different considerations do apply and the court is not bound to apply the principle relied upon in Financial Services. Standing back it is not surprising that this argument has not been previously raised by personal injury practitioners or that counsel in the short time available apparently to them had been unable to...
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