Sayers v Hunters (A Firm) and another
| Jurisdiction | England & Wales |
| Date | 2013 |
| Court | Court of Appeal (Civil Division) |
Limitation of action - Personal injuries - Time limit, power to override - Action for damages for personal injury commenced four years after expiry of limitation period - Claimant’s application to disapply limitation period - Judge ruling that claimant seeking disapplication of limitation period facing “particularly heavy burden” - Whether judge applying wrong test - Whether limitation period to be disapplied -
The claimant brought a claim against the defendants claiming damages for personal injuries caused by negligence. The deputy judge hearing the claim found that it had been commenced four years after the expiry of the three-year limitation period provided by section 11 of the Limitation Act 1980F1, but exercised his discretion under section 33 of 1980 Act to disapply the time limit so that the claim was permitted to proceed. The defendants appealed and the decision was reversed, the judge referring in his ruling to the “particularly heavy burden” lying on a claimant seeking to persuade a court to exercise its discretion to disapply a time limit under section 33 of the 1980 Act.
On the claimant’s appeal—
Held, dismissing the appeal, that since it was established that a court’s discretion under section 33 of the Limitation Act 1980 to disapply the limitation period for commencing an action for personal injuries was broad and unfettered, it could not be said that the burden on a claimant seeking to persuade a court to exercise that discretion was necessarily a heavy one; that, rather, how difficult or easy it would be for the claimant to discharge the burden would depend upon the facts of the particular case; that in stating that the claimant had a particularly heavy burden the judge had been stating a general principle, rather than its application to the claimant, and so had applied the wrong test, and the court would have to revisit the question whether it was appropriate for the discretion under section 33 of the 1980 Act to be exercised in the claimant’s favour; that, having regard to the circumstances, it would not be equitable to allow the claim to proceed and the limitation period would not be disapplied; and that, accordingly, the judge’s order dismissing the claimant’s claim as time-barred would be upheld (post, paras 55–58, 68–69, 70, 71).
The following cases are referred to in the judgment of Jackson LJ:
A v Hoare
B v Ministry of Defence
B v Nugent Care Society
Davies v Secretary of State for Energy and Climate Change
Horton v Sadler
KR v Bryn Alyn Community (Holdings) Ltd
Kew v Bettamix Ltd (formerly Tarmac Roadstone Southern Ltd)
McDonnell v Walker
The following additional cases were cited in argument:
Adams v Bracknell Forest Borough Council
Cain v Francis
Robinson v St Helens Metropolitan Borough Council
No additional cases were referred to in the skeleton arguments.
APPEAL from Judge Hollis sitting in the Hastings County Court
The claimant, Clifford Sayers, commenced proceedings against the defendants, Hunters (a firm), who were the executors of the late Lord Chelwood, and Lady Chelwood, seeking damages for personal injury caused by negligence. The proceedings were commenced at least four years out of time. By a decision dated 22 November 2010, Deputy District Judge Smith, sitting in Hastings County Court, exercised his discretion to extend time under section 33 of the Limitation Act 1980 so that the claimant’s personal injury action could proceed. The defendants appealed and, by a decision dated 11 July 2011, Judge Hollis, sitting in the Hastings County Court, allowed the appeal.
By an appellant’s notice dated 25 July 2011 and pursuant to the permission of the Court of Appeal (Dame Janet Smith) the claimant appealed on the ground, inter alia, that Judge Hollis, in allowing the defendants’ appeal, had erred by applying the wrong test in holding that there was a “particularly heavy burden” on a claimant who sought to rely on the discretion provided by section 33 of the 1980 Act.
The facts are stated in the judgment of Jackson LJ.
Simon Mallett and Guy Coleman (instructed by
David Platt QC and Patrick Blakesley (instructed by
The court took time for consideration.
19 December 2012. The following judgments were handed down.
JACKSON LJ
1 This judgment is in six parts, namely: Part 1. Introduction; Part 2. The facts; Part 3. The present proceedings; Part 4. The appeal to the Court of Appeal; Part 5. Did the judge apply the wrong test? Part 6. How should the discretion under section 33 of the Limitation Act 1980 be exercised?
Part 1. Introduction2 This is a personal injury action which was begun four years after the expiry of the limitation period. The issue in this appeal is whether the judge in the county court erred in failing to exercise his discretion under section 33 of the Limitation Act 1980 in favour of the claimant.
3 The claimant in this action is Mr Clifford Sayers, who was born on 21 November 1946 and is now aged 66. The first defendant is named in the claim form as Lord Chelwood. In fact Lord Chelwood died in 1989 and the action has proceeded as if the claim were being made against his estate. The second defendant is Lady Chelwood, who is Lord Chelwood’s widow.
4 In this judgment I shall refer to the Limitation Act 1980 as “the Limitation Act”. Section 11 of the Limitation Act provides that an action for personal injuries shall not be brought more than three years after the cause of action accrued or (if later) the claimant’s “date of knowledge”. The date of knowledge is defined in section 14 of the Limitation Act 1980.
5 Section 33 of the Limitation Act 1980, as amended, provides:
“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 11A 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, by section 11A 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.”
6 After these introductory remarks I must now turn to the facts.
Part 2. The facts7 In 1981 the claimant started working for Lord and Lady Chelwood as a forester and gardener. Lord and Lady Chelwood lived in East Sussex. They had a garden of 1·3 acres and about 200 acres of forest. The claimant’s work would on occasions involve the use of noisy equipment.
8 In 1988 Lord and Lady Chelwood sold off the forest, so that from then on the claimant’s sole task was to look after the garden. In 1989 Lord Chelwood died. Thereafter the claimant continued to work as a gardener employed by Lady Chelwood.
9 In May 2000 the claimant’s employment with Lady Chelwood came to an end. Thereafter the claimant was employed by Express Dairies as one of the drivers of their vans and lorries.
10 By the time that the claimant left Lady Chelwood’s employment he was suffering from hearing loss and tinnitus. According to the claimant, he told Lady Chelwood about this problem before 1989. Lady Chelwood replied that she had similar symptoms. This was because she used to accompany Lord Chelwood when he was shooting and she loaded his guns.
11 The cause of the claimant’s hearing loss and tinnitus is a matter of dispute in this litigation.
12 Express Dairies provided periodic health checks for their...
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...at paragraph 74, of there being a "heavy burden" on the claimant and it being "an exceptional indulgence" and, in Sayers v Chelwood 2013 1WLR 1695, Lord Justice Jackson said at paragraph 53 "…there can be no doubt that if a claimant commences proceedings out of time and asks the court, in t......
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Rachel Catherine Ellam v George Ellam
...judgment 38 The judge recited the relevant parts of section 33 of the 1980 Act. He quoted paragraph 56 of the judgment of Jackson LJ in Sayers v Hunters [2013] 1 WLR 1695, as follows: "All that one can possibly say about the general approach to section 33 is that the burden is on the claima......
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David William Carr v Panel Products (Kimpton) Ltd
...unrptd 21.7.1977); A v Hoare [2008] UKHL 6, [2008] 1 AC 844, at [45], [49], [68] and [84]; Sayers v Lord Chelwood [2012] EWCA Civ 1715 [2013] 1 WLR 1695, at [55]. 2) The matters specified in section 33(3) are not intended to place a fetter on the discretion given by section 33(1), as is ma......
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Peter John Sebastian Murray v Father Martin Devenish (Provincial Superior of the London Province of the Sons of the Sacred Heart of Jesus Sued on his own behalf and as a representative of all other members of the unincorporated association known as the Sons of the Sacred Heart of Jesus)
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