This post looks at the case of Nicholas -v- Ministry of Defence where an action for damages following death was issued many years late. The court exercised its discretion under Section 33 of the Limitation Act 1980 to allow the action to proceed and awarded damages.
In Patricia Melanie Nicholas (Executrix of Doris Timbrell) –v- Ministry of Defence  EWHC 2351 H H Judge Burrell QC (sitting as a judge of the High Court) considered the exercise of the court’s discretion under Section 33 of the Limitation Act 1980.
Mrs Timbrell had been exposed to asbestos between 1941 – 43 whilst making gas masks for the war effort. She was told in 2004 that she could make a claim for the asbestosis. She did not make a claim during her lifetime and the action became statute barred in 2007. Mrs Timbrell died in 2009 as a result of the cancer. A claim was intimated in June 2009 and proceedings issued in May 2012.
The Court had to decide whether to exercise its discretion under Section 33 of the Limitation Act 1980. The Defendant could not point to any prejudice (and admitted liability) but argued that it was unfair for the Claimant (Mrs Timbrell’s estate) to gain a windfall.
The judge rejected that argument. He held that one of the central issues to be considered in Section 33 was substantive prejudice to the defendant.
8. It is the effect of the delay on the defendant’s ability to resist the claim on the merits which is of paramount importance. (Hartley v Birmingham City District Council  1WLR 968). In Cain v Francis  QB 754, this criterion was described as “the critical factor”. In EB v Haughton  EWHC 279 (QB) it was said that although lack of prejudice does not “trump” all other considerations, it is a factor to be given considerable weight.
9. Although the defendant agrees it has suffered no prejudice, it is argued that it is simply not fair (not equitable) to disapply the limitation period given the deceased’s clear decision not to issue proceedings when she had all relevant knowledge. Mr Farrer, for the defendant, refers to the claimant as benefiting from a “windfall” if the application is successful. He has argued that if the injured person has decided not to pursue the claim, then that should be an end of it. In my judgment that is simply wrong. The legislation obviously envisages a myriad of situations where it could and would be equitable to allow proceedings to be pursued outside the limitation period. It is fact specific. If the law allows the estate to benefit from damages awarded to a deceased person as a result of a defendant’s tort, (as it does) then the “windfall” argument has no merit.
10. It is important to remember that the decision not to issue proceedings was directly related to the effects of the asbestos exposure which is admitted to have been the defendant’s fault. They caused the very condition which the deceased said made her too ill and disabled to contemplate proceedings. I do not think it would be right to allow the defendant to take advantage of allow the defendant to take advantage of its tortious acts, bearing in mind that the delay has caused no prejudice to the cogency of the evidence – liability and causation being admitted. The reality was that the deceased wanted to sue but was of the view that she was too ill to do so. Given her age and the nature of her symptoms, that is understandable. It is to be noted from the medical report prepared by Dr Rudd (TB 2/7) that her respiratory disability due to asbestosis in 2004/5 was 40% (using the Coal Miners’ Respiratory Disease Litigation Disability Rating Scale 1999) increasing to 50% by the end of 2005/beginning of 2006. That is very significant disability.
11. Although there was further delay from death to issue of proceedings, for a large part of that time, solicitors for the claimant were pursuing the matter and the defendant had known of the claim from 4.6.09. There is no suggestion on the part of the defendant that the claimant’s solicitors have been negligent. In any event, I bear in mind the dicta in Roberts v The Commissioner of Police of the Metropolis  EWCA Civ 799, where Patten LJ said at para 11, “..Where no such prejudice exists then the fact that the claimant may have an alternative right to recovery in the form of a claim against his solicitors for negligence is unlikely, in my view to be determinative..”
12. The discretion is a general one which has to be exercised to achieve a result which is fair and just between the parties having regard to the circumstances set out in S33 and all other relevant circumstances. There being no prejudice to the defendant in the overriding of the limitation period, a fair trial on quantum is possible. The requirement to show prejudice is of course by no means an overriding one but it is obviously very important. As to the loss of the limitation defence being prejudice in itself, it has been held in previous cases that this is balanced by the prejudice to the claimant were the dispensation provisions not to be applied
13. In all the circumstances therefore, for the reasons set out above, I take the view that it would be equitable to allow this action to proceed and I am prepared to direct that the limitation provisions of the 1980 Act should not apply to the action, pursuant to S33.”
POINTS TO NOTE
LIMITATION PERIOD AND DATE OF KNOWLEDGE PRIOR TO DEATH
Note that a “new” limitation period did not arise when the deceased person died. If the date of knowledge of the deceased person is more than three years prior to death then the limitation period has probably expired before the death. However if the three year period has not expired prior to death then the limitation period runs from the date of death.
Sections 11 (4) and (5) of the Limitation Act 1980 provide:
“(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.
(5) If the person injured dies before the expiration of the period mentioned in subsection (4) above, the period applicable as respects the cause of action surviving for the benefit of his estate by virtue of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 shall be three years from—
(a) the date of death; or
(b) the date of the personal representative’s knowledge;
whichever is the later”
This decision reiterates the point that the determinative factor on a Section 33 is usually prejudice. If the absence of prejudice then allegations of inequity or unfairness will not prevent the discretion being exercised. However it is not prudent to be complacent. Every Section 33 application is a gamble to some extent. Litigators are advised, if at all possible, to avoid relying on the discretion and issue promptly.
The decision is at