Gregory v HJ Haynes Ltd [2020] EWHC 911 (Ch)

The Claimant was a roofer employed by the Defendant from 1959 to 1971/2. His case was that during his period of employment he was required to work with asbestos containing materials and was exposed to dust. As a result, he developed pleural thickening which gave rise to a respiratory disability. He was at risk of mesothelioma and asbestosis.

The limitation period started running when the Claimant became aware of his disease in November 2008. He contacted solicitors in March 2009. His solicitors were unable to identify any relevant insurer covering the period of the Claimant’s employment, notwithstanding several checks and enquiries. In November 2013, the details of the Defendant’s insurers were uploaded to the Employer’s Liability Tracing Office database. This was not known to the Claimant or his solicitors at the time, but was later discovered in the course of another client’s claim in September 2014. In March 2015, the Claimant’s solicitors sent a letter of claim to the Defendant’s insurers. The Defendant company was also restored to the register for the purposes of other litigation. The Defendant acknowledged receipt in April 2015 and requested a witness statement. A statement was provided in November 2016. In January 2017, the Claimant also disclosed a medical report. In September 2017, the Claimant’s claim was issued.

District Judge Bell, exercising the jurisdiction of a circuit judge, declined to grant the Claimant’s application to extend the limitation period applicable to his personal injury claim, pursuant to section 33 of the Limitation Act 1980. The Claimant appealed, and submitted that the judge wrongly considered the claimant to be culpably responsible for a period of delay during which he did not know, and could not find out, whether the Defendant company, then dissolved, had insurance for the period of his claim.

Mr Justice Mann heard the appeal. He observed that this was an appeal from the exercise of discretion and that “the decision should therefore only be impeached if it betrays an error of principle, takes into account an irrelevant factor or fails to take into account a relevant one“…

Analysing the decision of District Judge Bell, Mr Justice Mann found that it had been an error to hold that the delay between March 2009 and September 2014 had been culpable. There was nothing more that the Claimant could realistically and sensibly have done during this period, given the dissolved and apparently penniless Defendant. Reasonable searches had been made and issuing a claim before restoration of the defendant company would not have been sensible. It was clear that in performing the balancing exercise under section 33, the judge had placed significant weight on the delay between 2009 and 2014 and the Claimant’s culpability in relation to this delay. The judge therefore took into account an irrelevant consideration which had a material effect on his ultimate decision. As a result, his final decision could not stand.

Mr Justice Mann proceeded to consider the Claimant’s application afresh. He observed that the section 33 exercise involved three key elements, namely delay and its reasons, prejudice to the parties and the possibility of a fair trial. There were also separate considerations under section 33(3) to consider. He made the following findings:

• Delay and its reasons:

o Up until 2014, the delay caused was not culpable.

o The period of delay between 2014 and 2017, had been culpable and inexcusable. The letter of claim ought to have been sent sooner and the claim should have been issued long before it was.

• Prejudice:

o The main prejudicial effect was likely to be the loss of evidence over the years, resulting in difficulties for the Defendant to meet the claim. However, it was not appropriate to consider the adverse effect of the total period of delay. The court had to consider the effect on the Defendant’s evidential position, only of the period of culpable delay from 2014 to 2017.

o By 2014, all the real prejudice to the defendant had accrued. The same was likely true for the Claimant’s evidential case.

• Fair trial

o District Judge Bell had found that a fair trial was still possible, and Mr Justice Mann accepted this view.

In his concluding remarks, Mr Justice Mann found that if the Claimant had commenced proceedings in 2014 or the beginning of 2015, the application to extend the limitation period would have been highly likely to succeed. The balance of fairness would have been in his favour as he would have sued at the first reasonable opportunity. Instead the claim was brought in 2017, for no good reason. Whilst the Defendant’s evidential position had probably not worsened during this period of delay, there comes a point at which the Claimant’s own delay will make it unfair to extend the period. This case came close to that point. However, the delay was attributable to the Claimant’s solicitors rather than the Claimant himself, and it was not quite enough to deprive him of the opportunity to pursue his claim.

Accordingly, the Claimant’s appeal was successful.

May 19, 2020 · Editorial Team · Comments Closed
Posted in: Cases