THE HIGH COURT HAS RECENTLY CONFIRMED THAT THERE IS NO BAR TO S.33 ARGUMENTS, EVEN SHOULD THE LIMITATION PERIOD HAVE EXPIRED PRIOR TO THE DECEASED’S DEATH.
SHAW -v- MAGUIRE (RE PRELIMINARY ISSUES) [2023] EWHC 2155 (KB)
There are strict time limits to issuing proceedings in England & Wales referred to as ‘limitation’. In cases where the proceedings have been issued out of time/outside of limitation, then the Claimant will need to rely upon s.33 Limitation Act 1980 which requires the court to consider whether the matter should be allowed to proceed? This article provides a brief introduction to limitation in Injury cases, the test under s.33 and examines the court’s decision to allow the matter to proceed in a clinical negligence matter that resulted in death.
LIMITATION
The limitation periods for civil litigation cases are primarily governed by the Limitation Act 1980 and differ depending on the nature of the dispute. In most civil disputes, a claimant has 6 years in which to issue proceedings.
However, for injury cases including road traffic accidents, clinical negligence and occupational health/disease matters; it is 3 years from the date of injury (this is referred to as ‘the cause of action’) or, 3 years from the date that the claimant had knowledge of the injury, whichever comes later. In the regrettable case of a fatal accident, limitation runs from the date of death not the injury and/or accident date. Should a claim be issued more than 3 years from the date of death, then the default position is that the claim is time/statute barred.
The relevant part of the limitation act are as follows:
s.11(4) Except where subsection (5) below applies, the period applicable is three years from –
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
And in the case of fatal accidents:
s.11(5) If the person injured dies before the expiration of the period mentioned in subsection (4) above, the applicable as respects the cause of action surviving for the benefit of his estate by virtues of the Law Reform (Miscellaneous Provisions) Act 1934 shall be 3 years from –
(a) the date of death; or
(b) the date of the personal representative’s knowledge;
Whichever is the later.
s.12(1) An action under the Fatal Accidents Act 1976 shall not be brought if the death occurred when the person injured could no longer maintain an action and recover damages in respect of the injury (whether because of a time limit in this Act or in any Act, or any other reason).
Where any such action by the injured person would have been barred by the time limit in section 11 of this Act, no account shall be taken of the possibility of that time limit being overridden under section 33 of this Act.
SECTION 33 LIMITATION ACT 1980
Section 33 of the Limitation Act 1980 operates to prevent bureaucratic injustices by allowing the court to disapply the limitation period should it be equitable to do so i.e. in the interests of justice. In consideration of this discretion, the court is required under subsection (3) )to have regard to:
(a) The length of, and the reasons for, the delay on the part of the claimant.
(b) The extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the parties is or is likely to be less cogent than if the action had been brought within the time allowed …
(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 claimant or inspection for the purpose of ascertaining facts which were or might be relevant to the claimant’s cause of action against the defendant;
(d) The duration of any disability of the claimant 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.
Simply put, the claimant will need to show a good reason for the delay, there should be sufficient evidence for a fair trial to take place and the claimant’s conduct should be beyond reproach in complying with requests from the Defendant. Otherwise, should evidence no longer be available (e.g. witnesses have moved or documents been destroyed) or the claimant has not complied with the defendant’s reasonable requests, then the court will look at whether there was a medical reason beyond the claimant’s control to explain this? In absence of such, it is unlikely the court will exercise its discretion unless it can be shown that the defendant has acted unreasonably by for example; destroying evidence, withholding witnesses, failing to investigate an accident and/or refused access for site inspections.
For fatal accidents the relevant part of the section 33 discretion is found in subsection 2 which reads:
(2) The court shall not under this section disapply section 12(1), except where the reason why the person injured could not longer maintain an action was because of the time limit in section 11.
In practice, should the defendant raise the issue of limitation at the outset then to prevent an escalation of costs, the court will list a preliminary hearing to determine if the matter is outside of limitation and if it is, whether it should be allowed to proceed to trial.
SHAW -v- MAGUIRE: THE BACKGROUND
The Claimant widower sued for the death of her husband alleging that the Defendant was clinically negligent in their treatment they had administered from 2007 to 2009. This was alleged to be a failure to examine histological samples properly in 2007.
The Claimant and the deceased’s ‘date of knowledge’ was found to have been June 2013. However, the deceased passed away in 2014. Proceedings had previously been issued but they were never served and consequently, limitation expired in June 2016. Accordingly, the Claimant instructed another firm to bring an action against her previous solicitors whom gave an indemnity as to the costs so that proceedings could be issued against the original Defendant.
In August 2022 approximately 5.5 years outside of limitation, the Claimant issued proceedings again. The Defendant rightly raised the issue of limitation and the matter was listed for a preliminary hearing arguing that as the claim was statute barred prior to the deceased death, the Court has no power to resurrect a right of action which had already expired prior to death under s.33. The bar was therefore, absolute.
LIMITATION CONSIDERED
The Presiding Master Cook found that an action under the Fatal Accidents Act 1976 can be statute barred in one of two ways:
At the time of his death, the deceased must have been in a position to sue the defendant had he survived injured by the wrongful act instead of dying because of it. Thus if the deceased died of his wounds four years after being injured by the defendant, no Fatal Accidents Act claim would normally arise. However, it could arise if it was not yet three years since the deceased acquired the relevant knowledge under s.14(1) Limitation Act 1980.
Where a cause of action under the Fatal Accidents Act does arise, it must be brought within 3 years from either the date of death or “knowledge” of the person whose benefit it is brought whichever is the later.
The question that the presiding Master Cook had to consider was whether the court had the power to exercise the Section 33 discretion in these circumstances? There was no direct authority on the issue while one of the leading practitioner texts ‘Kemp & Kemp’ 3 – 010 stated that it could not:
“If the deceased failed to sue within his own limitation period then no Fatal Accidents Act claim may be pursued, and there is no power to make a retrospective s.33 application to disapply the limitation period once the victim has died s.12(1).
Pursuant to s.12(2) of the Limitation Act 1980 the limitation period for Fatal Accident Claims by dependents is 3 years from the date of death or the date of knowledge of the “person” for whose benefit the claim is brought i.e. the dependant. If there is more than one that one dependant the limitation period is applied separately for each.”
The Master disagreed while expressing some surprise that Counsel for either party were unable to find an authority on the issue:
“It seems to me that the answer is provided by a careful reading of s.12(1) and s.33(2) of the Limitation Act 1980. The effect of s.12(1) taken together with s.33(2) is that where an injured person with capacity dies 3 years or more after the accident or date of knowledge without commencing proceedings, the only avenue open to the personal representative on behalf of the dependants is to commence proceedings and apply to the court to exercise its discretion under s.33 to disapply the limitation period. On the basis that that s.33(2) of the Limitation Act 1980 provides the court may disapply s.12(1) where the reason the person injured could not maintain an action was because of the time limit provided by s.11(4). This seems to me to be consistent.
The Master was also able to find this interpretation consistent with a previous High Court Decision. Continued;
“This also seems to be consistent with the approach taken in the case of MMG3 -v- Dunn [2019] EWHC 882 (QB). In this case, the deceased suffered a long and lingering injury before his death with the result that the deceased had not commenced proceedings in the period in excess of 3 years between diagnosis (and date of knowledge) and his death. Therefore, the primary limitation period for the deceased’s claim expired in October 2011, pursuant to s.11 and by operation of s.12 of the Limitation Act 1980 the claimant’s claim could not proceed unless the Court exercised its discretion under s.33 of the Limitation Act 1980. The Deputy Circuit Judge found as a fact that the deceased’s date of knowledge was October 2008 and went on to exercise his discretion under s.33 Limitation Act 1980 in favour of the Claimant. The decision of the deputy judge was upheld on appeal by Mrs Justice Yipp.
And as for poor Kemp:
“I also note that my view is consistent with that of the editors of Butterworths Personal Injury Service at [129].”
EXERCISE OF THE S.33 DISCRETION
Applying the s.33(3) Criteria, the Master found as follows:
(a) Delay: The delay simply put was not the fault of the Claimant but the incomprehensible incompetence of 2 law firms. The Claimant had instructed what she had thought to be were ‘competent’ solicitors whom then closed their personal injury department after failing to make any progress. Her case was then transferred to another firm whom did practically nothing other than identify the defendant and then after some further delay sent the case back. There was subsequently a wild goose chase for the samples that had been transferred to another hospital after the experts thought their reports were no longer needed. Her only recourse then was to the Legal Ombudsman.
(b) Cogency: “Subject to considerations of proportionality, the Defendant only deserves to have obligation to pay due damages removed if the passage of time has significantly diminished the claim on liability or amount: Cain -v- Francis [2009] QB 754 para.69.” As the both the histology samples and the Defendant’s Report were available and the evidence as to liability would be expert based as is the norm in clinical negligence and common to fatal accident cases, the cogency had not been fatally affected.
(c) Conduct of the Defendant: Not relevant. – There was no untoward conduct.
(d) Disability of the Claimant: Not relevant.
(e) The extent to which the Claimant acted promptly: The Claimant could not be criticised for acting
promptly, the delay being entirely due to her solicitors.
(f) Medical or Legal Knowledge: As above.
In summarising the test as a balancing exercise between the prejudice to the claimant and the defendant it was not an insubstantial point that the Claimant had a right of recourse in the form of a professional negligence claim against her former solicitors. However, the judge referred to Rayner v. Wolferstans (A Firm) [2015] EWHC 2957 (QB) where the same point had been argued and noted that Wilkie J had pointed out that in the context of a s.33 application than an action against a claimant’s former solicitor was one for a loss of a chance and that of necessity that would result in a claimant recovering less than 100% of what they would recover in the personal injury. It was also dependent on the claimant proving professional negligence but more importantly:
“In circumstances where I have found that the Claimant has not contributed to the delay caused by her former solicitors I can see no reason to visit any of the faults on her lawyers on the Claimant. Nor can I be satisfied that the Claimant’s claim against her former solicitors would succeed … I am also clear that the Claimant’s alternative remedy, if she were to win, would result in an award of less damages that if she were successful against the Defendant.
Due to the above the court found that the prejudice to the Defendant was far outweighed by that to the Claimant, critically; as a fair trial could take place and exercised its discretion under s.33 Limitation Act 1980.
CREDITS
We extend our gratitude to Counsel Gordon Exall on whose ‘Civil Litigation Brief’ this case was first brought to our attention. You can read Counsel’s original blog post by clicking the above.
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