Smith v White Knight Laundry Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JONATHAN PARKER |
| Judgment Date | 11 May 2001 |
| Neutral Citation | [2001] EWCA Civ 660 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 May 2001 |
| Docket Number | Case No: A2 2000 0151 |
[2001] EWCA Civ 660
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
(His Honour Judge Pryor QC sitting as a High Court
Judge in the Queens Bench Division)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Lord Justice Laws and
Lord Justice Jonathan Parker
Case No: A2 2000 0151
Mr Allan Gore (instructed by Field Fisher Waterhouse for the Appellant)
Mr Richard Methuen QC (instructed by Davies Arnold Cooper for the Respondent)
INTRODUCTION
This is the judgment of the court.
This is an appeal by Mrs Maria Smith, the claimant in a personal injuries action, against an order made by His Honour Judge Pryor QC (sitting as a High Court Judge in the Queens Bench Division) on 22 October 1999. The defendant in the action, White Knight Laundry Ltd ("the Company"), is the respondent to the appeal. The judge refused permission to appeal, but permission was granted by Chadwick LJ on 31 January 2000.
Mrs Smith is the widow and personal representative of Thomas Albert Smith, who died on 6 February 1995, aged 68 ("the deceased"). Mrs Smith claims damages against the Company pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 ("the 1934 Act") and the Fatal Accidents Act 1976 ("the 1976 Act"), alleging the deceased's death was caused by negligence and breach of duty by the Company.
The Company was dissolved on 21 October 1963, and (as is common ground) so long as it remained dissolved Mrs Smith could not commence proceedings against it. On 22 December 1997 Mrs Smith applied to the Companies Court for an order under section 651 of the Companies Act 1985 ("the 1985 Act") declaring the dissolution to have been void and restoring the name of the Company to the register of companies. In accordance with normal practice notice of Mrs Smith's application was served on the Registrar of Companies and on the Treasury Solicitor. No other party was served. On 23 January 1998 Mr Registrar Buckley made the order sought ("the restoration order").
In addition to declaring the dissolution of the Company to have been void, the restoration order also directed, pursuant to section 651, that the period from dissolution to the date of the order should not count for limitation purposes. We will refer to such a direction hereafter as "a section 651 direction".
The restoration order was not served on the Company until May 1999, shortly after the commencement of this action.
The action was commenced by writ issued on 14 April 1999. By her Statement of Claim, Mrs Smith alleges that the deceased was employed by the Company from 1950 to 1956, and that his work brought him in contact with asbestos. She alleges that in consequence he contracted mesothelioma, from which he died. She alleges that his death was caused by negligence and breach of statutory duty on the part of the Company, and she claims damages for the deceased's estate (pursuant to the 1934 Act) and for herself as a dependant (pursuant to the 1976 Act).
By its Defence, the Company alleges that the claim is statute-barred because the deceased had the requisite knowledge about his condition for the purposes of the Limitation Act 1980 ("the 1980 Act") more than 3 years before the date of his death (that is to say, prior to 5 February 1992); alternatively because Mrs Smith commenced the present action more than 3 years after the deceased's death (that is to say, after 5 February 1998); and that the court should not make a direction pursuant to section 33 of the 1980 Act allowing the action to proceed notwithstanding that the claim would otherwise be statute-barred, since it would not be equitable in all the circumstances so to direct.
By her Reply, Mrs Smith admits that the action was commenced more than 3 years after the date of death but denies that the claim is statute-barred. She alleges that the deceased first had knowledge of his condition on 5 January 1993, that is to say less than 3 years before his death. The Reply goes on to plead the dissolution of the Company and the restoration order, alleging that the Company was not available to be sued until the restoration order was made; alternatively, if the claim would otherwise be statute-barred, Mrs Smith seeks relief under section 33 of the 1980 Act on the grounds (a) that she commenced proceedings within one year and three months of making of the restoration order; (b) that no prejudice would be caused to the Company by the grant of relief under section 33; and (c) that the claim does not depend upon witness recollection and that the evidence to be adduced has not been rendered less cogent by the passage of time.
The Company applied in the action for the trial of a preliminary issue as to limitation. The application was opposed by Mrs Smith on the basis that no cause of action arose until there was a defendant available to be sued – that is to say, until the making of the restoration order. In the alternative, Mrs Smith relied on the section 651 direction contained in the restoration order. It was accordingly contended on behalf of Mrs Smith that there was no issue as to limitation since the pleaded limitation defence was bound to fail. However, by order dated 21 September 1999 Master Ungley directed a preliminary issue as to limitation. Mrs Smith appealed against that order.
Mrs Smith's appeal against Master Ungley's order was heard by His Honour Judge Pryor QC on 22 October 1999, when he made the order against which Mrs Smith now appeals to this court.
The judge not only dismissed Mrs Smith's appeal against Master Ungley's order; he also varied the restoration order by setting aside the section 651 direction. Thus, the effect of the judge's order is that so much of the restoration order as declared the dissolution of the Company to have been void still stands, as does Master Ungley's direction for the trial of a preliminary issue as to limitation; but that the period from the dissolution of the Company to the date of the restoration order counts for limitation purposes. Thus, if the judge's order stands, preliminary issues will arise in the action as to whether the claim is statute-barred, and if so, whether relief should be granted under section 33 and the action be allowed to proceed.
In this appeal, Mrs Smith essentially repeats the contentions which were made unsuccessfully on her behalf before Master Ungley and before the judge. She contends firstly that no cause of action accrued to the deceased prior to the dissolution of the Company on 21 October 1963 a contention which the Company is content to accept for the purposes of this appeal. Mrs Smith goes on to contend that no cause of action can have accrued to the deceased (or to her) during the period while the Company was in dissolution, since throughout that period there was no defendant available to be sued. It follows, so it is contended, that the cause of action arose only on the making of the restoration order, with the consequence that the claim is not statute-barred. Hence, so it is said, there is no need for a preliminary issue as to limitation since the limitation defence is bound to fail. That is Mrs Smith's primary basis for challenging the judge's order. It is to be noted that if Mrs Smith is right in her primary contention the section 651 direction was wholly unnecessary since it achieved nothing.
In the alternative, Mrs Smith relies on the section 651 direction. She contends firstly that the judge had no jurisdiction to set aside the section 651 direction since (a) no application to that effect had been made by the Company either in this action or in the proceedings in the Companies Court in which the restoration order was made, and (b) no step had been taken by the Company to seek to appeal the restoration order out of time. Alternatively, she contends that even if the judge had power to set aside the section 651 direction, he ought not to have exercised that power in the circumstances of this case; and that his decision to do so was perverse and against the weight of the evidence.
We must now set this appeal in its statutory context, by referring to the relevant statutory provisions.
THE RELEVANT STATUTORY PROVISIONS
Section 11 of the 1980 Act provides for a special time limit for personal injury actions. Section 11(2) provides that none of the time limits provided elsewhere in the 1980 Act applies to personal injury actions, and section 11(3) provides that the limitation period for personal injury actions is that which is applicable under subsections (4) and (5). Subsection (4) provides that (save where subsection (5) applies) the applicable limitation period is 3 years from the date on which the cause of action accrued or (if later) the date of knowledge of the person injured. Subsection (5) provides that if the person injured dies within that period, the applicable limitation period in respect of the cause of action surviving for the benefit of his estate by reason of the 1934 Act is 3 years from the date of death or (if later) the date of the personal representative's knowledge.
Section 12 of the 1980 Act provides for a special time limit for actions under the 1976 Act. Section 12(1) provides that an action under the 1976 Act shall not be brought if the death of the person injured occurred when that person could no longer maintain a personal injuries action (whether because the claim is statute-barred or for any other reason). Section 12(2) provides that the limitation period for an action under the 1976 Act is 3 years from whichever...
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