Walkley v Precision Forgings Ltd
| Jurisdiction | England & Wales |
| Judge | Viscount Dilhorne,Lord Wilberforce,Lord Diplock,Lord Edmund-Davies |
| Judgment Date | 17 May 1979 |
| Judgment citation (vLex) | [1979] UKHL J0517-2 |
| Date | 17 May 1979 |
| Court | House of Lords |
[1979] UKHL J0517-2
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 Walkley against Precision Forgings Limited, That the Committee had heard Counsel as well on Monday the 19th as on Tuesday the 20th days of March last upon the Petition and Appeal of Precision Forgings Limited of Albert Works, Darlaston, South Staffordshire praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 20th day of June 1978 except so far as regards the words 'The costs of the Plaintiff be taxed in accordance with the provisions of the Second Schedule to the Legal Aid Act 1974' 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 and that the Petitioners might have the relief prayed for in the Appeal or 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 Anthony Walkley 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 of the 20th day of June 1978 in part complained of in the said Appeal be, and the same is hereby, Reversed and that the Order of Master Lubbock of the 1st day of June 1977 be, and the same is hereby, Restored: And it is further Ordered, That the Appellant's Costs in respect of the Appeals to the Court of Appeal and to this House be paid out of the Legal Aid Fund pursuant to section 13 of the Legal Aid Act 1974, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered that the Respondent's Costs in this House be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.
My Lords,
The circumstances giving rise to this appeal will be stated by my noble and learned friend Lord Diplock. I need only draw attention to the salient dates which are relevant for a decision on the point of law which we have to decide.
The respondent, having been employed by the appellants as a dry grinder in 1966, became aware in June 1969 that he had the symptoms of a disease in his hands called Raynaud's Phenomenon. In November 1969 the condition was diagnosed by his doctor. He also understood that it was caused by his work and in December 1969 he consulted his trade union shop steward. The union's legal department advised that he had no case. These facts appear from his own affidavit. A writ against the appellants was issued on 7th October 1971 claiming damages for personal injuries. After counsel had been consulted, the solicitors then acting for the respondent advised him that the union would not support his claim and they took no further action. But after he had consulted a second and ultimately a third firm of solicitors a second writ was issued by the latter on 6th December 1976 claiming similar though not identical relief. This was served on 23rd February 1977. The present appeal arises out of a summons to strike out the second writ. This succeeded before the Master: Swanwick J. allowed the second action to proceed on an undertaking by the respondent to discontinue the first; the Court of Appeal by a majority affirmed the decision of the judge. They did so upon the basis that the respondent should have an opportunity of making good his claim for exercise of the court's discretion under section 2D of the Limitation Act 1939 (as amended). Waller L.J., dissenting, held that it was clear that no case could be made under section 2D and accordingly that the second writ should be struck out.
My Lords, although there are examples in the cases of worse delays than that which existed in the present case, there is to my mind no doubt that apart from any question arising under section 2D (supra), the first writ would have been struck out for want of prosecution, under the principle laid down in Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229. So much was conceded before the judge, and although the concession was modified in the Court of Appeal, both Megaw L.J. and Waller L.J.—and I agree with them—held that this result would have followed. So the only question which remains is whether the respondent can make good a case under section 2D (supra) for allowing the second action to proceed, or, more accurately, whether there is an arguable case that he might be able to do so, for it is only in clear cases that the jurisdiction of the court to strike out an action should be exercised.
My Lords, as a matter of principle I have very great difficulty in understanding how in this case or indeed in any case that I can imagine where an action has been started within the normal limitation period, section 2D can be invoked at all. The section opens with the words:
"(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 2A or 2B of this Act prejudice the plaintiff …"
The provisions of section 2A are those which require an action for personal injuries to be brought within 3 years. So subsection (1)(a) must be contemplating a case in which, because the 3 years have expired without an action being brought, section 2A applies to the prejudice of the plaintiff. But if the plaintiff has brought his action within the 3 years, how has he been prejudiced by section 2A? This I fail to understand. If this argument is sound, the respondent's case fails in limine. He brought his first action within the normal limitation period, and if he has suffered any prejudice, it is by his own inaction and not by the operation of the Act. However, since the Court of Appeal did not decide the case on this argument, or, it seems, consider it, and since the provision is a new one, understanding of which may have to come with time, I will consider the appeal on the assumption that these initial words may apply to the case.
If they do, it becomes necessary to look at the matters referred to under subsection (3) which states under six headings what the court must have regard to in acting under the section. These were examined seriatim by Waller L.J. who formed the opinion that none of them applied, or could apply in the respondent's favour. On the other hand, under paragraph (b) it was clear that the evidence would be considerably less cogent than it would have been had the action been brought (n.b.) within the normal period. There was evidence that the factory in which the respondent worked was no longer occupied by the appellants: that it would be difficult to establish the machine at which the respondent worked or to simulate his working conditions: that the appellants' works manager had died and that a medical officer who might have testified as to the working conditions of the respondent both while employed by the appellants and in his previous employment had either died or was untraced. I shall not repeat the analysis of the learned Lord Justice, which I believe to be unchallengeable.
The majority of the Court of Appeal did not, as I read their judgment, disagree with it. They took the view, however, that it could not be said that there might not be other matters relevant to the decision of the court under section 2D which were not before the court and that the respondent should have an opportunity to adduce them. This line of argument was supported and amplified by the respondent's counsel in the appeal. In their printed case they endeavoured to specify other matters which they said might be material and which were (as weakly submitted) "not necessarily" before the court. Moreover they argued that, procedurally, an issue under section 2D should be placed before the court on a separate summons directed to that issue, or be dealt with at the trial: it should not be disposed of, as it were incidentally, on an application to strike out.
My Lords, I am not impressed by any of these arguments. The predominant interest in these matters (all the more when the plaintiff is, as here, legally aided) is to dispose of any issue under the Limitation Act as expeditiously as possible. Section 2D specifies no procedure, nor are there rules of court dealing with the matter: the section opens with the general words "If it appears to the court". No doubt it is desirable that some regular practice should exist in these matters: this is for the judges to develop under the guidance of the Court of Appeal. It is in course of being done. This House will not entertain procedural objections so long as the requirements of justice under the section are satisfied. In the present case, it is true that the operative summons is a summons to strike out, and that the possible application of section 2D only emerged fully before the Court of Appeal. But the appellants made clear at an early stage that they intended to rely on the Limitation Act: the respondent himself stated his intention to rely on section 2D well before the matter came before the judge: the appellants in their affidavit at this stage raised very clearly the evidentiary difficulties, relevant to section 2D(3)(b), which would arise if the second action were allowed to proceed, and the appellants' notice of appeal to the Court of Appeal gave the clearest...
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