Tolley v Morris
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Viscount Dilhorne,Lord Diplock,Lord Edmund-Davies,Lord Keith of Kinkel |
| Judgment Date | 17 May 1979 |
| Judgment citation (vLex) | [1979] UKHL J0517-1 |
| Date | 17 May 1979 |
| Court | House of Lords |
[1979] UKHL J0517-1
Lord Wilberforce
Viscount Dilhorne
Lord Diplock
Lord Edmund-Davies
Lord Keith of Kinkel
House of Lords
Upon Report from the Appellate Committee to whom was referred the Cause Tolley against Morris, That the Committee had heard Counsel as well on Monday the 12th as on Tuesday the 13th days of March last upon the Petition and Appeal of George Arthur Morris of Southcombe Silverton, Exeter in the County of Devon praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal dated the 12th day of May 1978 so far as therein stated to be appealed against might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order so far as aforesaid might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Lynne Marie Tolley (an infant by her father and next friend Alan Frederick Tolley) lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Civil Division) of the 12th day of May 1978 in part complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay or cause to be paid to the said Respondent the Costs incurred by her in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments if not agreed between the parties.
My Lords,
"In these cases the law's delays have been intolerable. They have lasted so long as to turn justice sour". These are the words of Lord Denning M.R. in Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229, 243, a case in which the Court of Appeal established on a modern basis the remedy of dismissal for want of prosecution. This present case is perhaps an even more extreme instance. The respondent, born in November 1961, was, so it is said, on 21st May 1964 struck by a motor car driven by the appellant: she was on the pavement holding her mother's hand. On 3rd May 1967 (i.e. just within three years) a writ was issued on her behalf against the appellant by her father and next friend, acting through solicitors. The writ claimed damages for personal injuries. The writ was not served until 20th April 1968 (nearly four years after the accident). Solicitors for the appellant immediately (on 23rd April 1968) entered an appearance on his behalf.
Nothing more happened until 19th July 1977 (thirteen years after the accident) when different solicitors for the respondent served a notice of intention to proceed. A statement of claim was delivered on 19th August 1977. On 22nd September 1977—the appellant's insurers having taken charge of the case—his solicitors applied by summons that the action be dismissed for want of prosecution. This was agreed to by the registrar at Yeovil, and his decision was affirmed on appeal by Dunn J. The Court of Appeal reversed this decision relying on Birkett v. James [1978] A.C. 297.
The basis of that decision was that an action would not normally be dismissed for want of prosecution while the relevant period of limitation was running, because the plaintiff could, without abuse of the process of the court, issue a fresh writ within that period. It was not a case of personal injury, nor was the plaintiff under a disability. In order to see whether the principle of the decision is to be applied to the present case, it is necessary to examine the law as to limitation of actions in cases of personal injury, whose development, I feel obliged to say, does not bear the hallmark of successful law reform.
The Limitation Act 1939, an Act of consolidation with amendments, was intended to restate the law generally; it repealed the relevant parts of the Limitation Act 1623, the Real Property Limitation Acts 1833-1874, and a number of other enactments.
I cite the following provisions.
"1. The provisions of this Part of this Act shall have effect subject to the provisions of Part II of this Act which provide for the extension of the periods of limitation in the case of disability, acknowledgment, part payment, fraud and mistake.
2.(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:—
(a) actions founded on simple contract or on tort;"
…..
"22. If on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years, or in the case of actions to which the last foregoing section applies, one year from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired:"
The reference here to "the last foregoing section", i.e. section 21, related to actions against public authorities and was supplemented by section 22(d) which read:—
"(d) this section, so far as it relates to the disability of infancy or unsoundness of mind, shall not apply to any action to which the last foregoing section applies, unless the plaintiff proves that the person under a disability was not, at the time when the right of action accrued to him, in the custody of a parent;"
The next Act was the Law Reform (Limitation of Actions, etc.) Act 1954. This reduced the six year limitation period in respect of actions for personal injuries to three years, and amended section 22 of the Act of 1939 (relevantly) so as to read:—
"(1) If on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years … from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired: …
(2) In the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person,—(a) the preceding provisions of this section shall have effect as if for the words 'six years' there were substituted the words 'three years'; and (b) this section shall not apply unless the plaintiff proves that the person under the disability was not, at the time when the right of action accrued to him, in the custody of a parent."
Further, substantial changes were made by the Limitation Act of 1975. As regards actions for personal injuries, it inserted new sections after section 2, replacing, as regards such actions, the provisions of that section. These (i) established a time limit of three years from the date when the cause of action accrued or the date, if later, of the plaintiff's "knowledge", (ii) gave the court power to override the limits if it appears equitable to allow the actions to proceed (not relevant in this case), (iii) replaced subsection (2), added to section 22 by the Act of 1954 (see above), by a new subsection establishing a limitation period of three years in personal injury cases and abolishing the need in cases of disability for a plaintiff to prove that the person under disability was not at the time when the right of action accrued, in the custody of a parent.
The policy behind these changes is obscure. But the effect is that after a generation of effort directed apparently to reducing limitation periods, an infant, whether or not in the custody of a parent, has the benefit of an extended period which enables an action to be brought within three years from attainment of the age of eighteen—in this case up to November 1982.
The effect of the decision of the Court of Appeal, by following Birkett v. James, is that it would be fruitless to dismiss the present action for want of prosecution because the respondent would have until November 1982 to issue a fresh writ.
My Lords, it is clear that the decision in Birkett v. James in itself makes a substantial inroad into the beneficial rule established by Allen v. Sir Alfred McAlpine & Sons Ltd. To extend, or apply this, to cases of persons under disability would make this even more substantial. If this result follows from Parliamentary legislation, it would have to be accepted, however unfortunate it might appear to be. But we are entitled to see whether it does follow.
The purpose of limitation provisions as regards persons under disability, and of the extensions of time granted, must be to ensure that such persons are not deprived of their remedies through inability to start proceedings—no more, no less. It is not in the interest of such persons that avoidable delays should occur in starting, or for that matter in prosecuting, their action (evidence may be lost, etc.). Delays may moreover seriously prejudice a defendant, and indeed prevent justice being done to either side. In this present case it appears that the insurers' files have been disposed of; police records and statements have been destroyed; the memories of witnesses, including the defendant, must have been fatally impaired; medical evidence...
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