Kew v Bettamix Ltd & Ors [2006] EWCA Civ 1535

[2006] EWCA Civ 1535

Case No 2006/0303 B3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM KINGSTON-UPON-THAMES

COUNTY COURT

4MB1710

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/11/2006

Before

LORD JUSTICE WALLER

Vice President of the Court of Appeal, Civil Division

LORD JUSTICE LEVESON

Between

IAN KEWRespondent/Claimant

(1) BETTAMIX LIMITEDAppellants/ Defendants

(2) TARMAC ROADSTONE LIMITEDAppellant

(3) SITUSEC CONTRACTORS LIMITEDAppellant

(4) TARMAC CONTRACTORS LIMITEDAppellant

(5) FM CONWAYAppellant

Mr John Ross QC and Mr Ivor Collett

(instructed by Gaston Whybrew, Colchester) for Appellants/Defendants

Mr Nigel Cooksley QC

(instructed by Askews, Stockton) for Respondent/Claimant

Hearing Hearing date : 16/10/06

Judgment

[1]The concept of limitation of action has always been difficult to apply in relation to industrial disease or injury that is insidious in onset and gradual in development. In its present form, but following earlier legislation, Section 11 of the Limitation Act 1980 (“the Act”) is the primary tool for correcting, among other things, the injustice of depriving an employee of a cause of action on the basis that he has developed a disease by reason of his working practices but has simply not known that he is ill. In section 33 of the Act, the law additionally creates an elasticity to the strict operation of limitation in personal injury cases and gives the judge a discretion to allow a case to proceed notwithstanding that the primary three year period (from whenever it commenced to run) has expired.

[2]On 1 February 2006, at the Kingston upon Thames County Court, Her Honour Judge Williams was called upon to determine the limitation period within which the Respondent, Ian Kew, could bring an action against the Appellants, his present and former employers, in relation to the industrial injury Hand Arm Vibration Syndrome. She decided that the period started to run “on receipt (at the very latest) of the letter from the doctor dated 19 July 2000 and indeed quite possibly even earlier than that in view of the medical advice he had in 2000, or even earlier on the claimant’s own evidence given orally”. Although this meant that the primary period of limitation had expired prior to the commencement of proceedings (which was the important decision to be reached for the purposes of section 11 of the Act), for reasons that I shall elaborate, the appellants submit that she had to fix upon a specific date.

[3]The learned Judge then went on to exercise her discretion to disapply the primary provisions in relation to limitation, thus permitting the action to proceed. The Appellants challenge that decision and argue that the action should have been dismissed as statute barred. With the leave of the full court (Hallett LJ and Bennett J), this appeal is mounted. The Respondent contends that the decisions reached by Judge Williams were both correct and, in any event, a perfectly proper exercise of her discretion. By Respondent’s Notice, further reasons are advanced to justify each. In addition, there is also an appeal against the order for costs whereby the Judge required the Appellants to pay the entirety of the costs of the preliminary issue notwithstanding their success on primary limitation.

The Respondent’s Working History and Primary Limitation

[4]The Respondent is 57 years of age. From about 1970, during his employment as a labourer/fitters mate and then as an asphalter, he was exposed to the use of vibrating equipment. He said that in 1991, his fingers were starting to tingle and go numb. When he was cross examined, he said that he did not really take notice of the problem but thought that it was an effect of age. I interpolate the history to say that in this court the Appellants submit that his state of knowledge at that time was such that limitation then started to run. Reverting to his statement he said that the following year, the symptoms seemed to get worse in the cold and he did not have the same grip that he had previously had.

[5]By 1998, the Respondent had been an asphalter for 28 years; he then became an inspector. When cross examined, he was asked about the symptoms in his hands:

“Q: By 1998/1999, it is of real concern to you. Is that fair? A: Yes Q: By then, you do know that it is not just age, do you not? A: Roughly, yes.”

[6]In March 2000, the Respondent was subject to a routine health care assessment and was seen by an occupational nurse, who completed a questionnaire form from information supplied by the Claimant, which was passed to Dr Cleeland, an occupational physician. In a letter which Dr Cleeland wrote to the Respondent dated 29 March 2000, he said “you have some symptoms which might be attributable to exposure to vibration at work…”. The Respondent was seen by Dr Cleeland again on 26 June 2000; this visit was followed by a further letter dated 19 July 2000 which the Respondent acknowledges that he received. It was in these terms: “I can confirm that you are suffering from Hand Arm Vibration Syndrome affecting the nerve endings in the fingers of both hands. … Your exposure to vibration has ceased and should not recommence in the future. You will be reviewed again clinically in one year’s time…”.

[7]A report signed by Dr Cleeland also dated 19 July 2000 which can only have been sent to the Appellants has the terse recommendation “No longer exposed – must not be re-exposed. Review in 1 year”. Although the document in the bundle apparently came from Dr Cleeland’s file, it is signed by him and it is not in issue that the present employers (being one of the Appellants) knew of the need for a review after a year. In the event, although there would have been a general health check each year, perhaps because he was not exposed to vibration (although no reason was proffered to the Judge), he was not called for a review of the condition of Hand Arm Vibration Syndrome notwithstanding the recommendation and this matter was not revisited until 2003.

[8]That happened in this way. At some time after the 2000 review, the Respondent heard from colleagues at work about the prospect of pursuing a claim after which he instructed solicitors. He completed a Review Questionnaire on 28 May 2003 and was reassessed medically the following month. The Respondent contended before the Judge that it was only after receipt of another letter from a doctor in June 2003 that he had knowledge within the meaning of section 11 of the Act. Proceedings were ultimately issued on 22nd April 2004 after the Respondent had entered into a conditional fee agreement the preceding December and so it was argued that the primary limitation period had not expired. Both that question and the alternative contention that it would be appropriate to disapply the provisions of the Act came on for hearing before the Judge as a preliminary issue.

[9]As to the expiry of the three year primary period of limitation, there were two issues relating to the Respondent’s knowledge as defined by section 14 of the Act before the Judge. The first related to the date upon which the Respondent knew or might reasonably have been expected to acquire knowledge that he had suffered a significant injury attributable in whole or in part to acts alleged to constitute negligence. The second concerned equivalent knowledge in relation to the identity of a proposed defendant. It is unnecessary to say more about the latter issue which, in the words of Hallett LJ on the permission hearing, was robustly rejected by the learned judge and no longer in issue.

[10]Neither is there a challenge to the Judge’s conclusion that the primary period of limitation had, in fact, expired more than 3 years prior to the commencement of proceedings or, in other words, rejecting the date of knowledge submitted on behalf of the Respondent. What remains in issue, however, is the precise date from which limitation started to run, that is to say, the date from which the Respondent had the relevant knowledge. Its significance is that it is an important reference point highly material to the later decision under section 33 of the Act which, as I shall examine, requires the exercise of discretion to the determination whether to disapply the provisions of the Act having regard to all the circumstances and, in particular, the length of the delay and features arising as a consequence of the delay.

The Date of Knowledge

[11]Section 11(4) of the Act prescribes the limitation period in an action for damages in respect of personal injuries as three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured. The phrase “date of knowledge” is further defined by section 14(1) of the Act. The material part for the purposes of this issue is in sub paragraph (a) which refers to the date on which he first had knowledge that the injury in question was significant. That language is further defined in later sub sections as follows: (2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. (3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire--(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

[12]This statutory language has been considered by the House of Lords in Adams v Bracknell Forest DC

[2004] UKHL 29

[2005] 1 AC 76

. The House then ruled that in determining whether a claimant had knowledge which he might reasonably be expected to acquire the Court was to consider how a reasonable person in the situation of the claimant would have acted and that, in doing so, aspects of character or intelligence peculiar to the claimant were to be disregarded. Lord Hoffman said (at paragraph 47) in these terms:

“47. It is true that the plaintiff must be assumed to be a person who has suffered the injury in question and not some other person. But, like Roch LJ in Forbes [1997] QB 402, 425 I do not see how his particular character or intelligence can be relevant. In my opinion, section 14(3) requires one to assume that a person who is aware that he has suffered a personal injury, serious enough to be something about which he would go and see a solicitor if he knew he had a claim, will be sufficiently curious about the causes of the injury to seek whatever expert advice is appropriate.”

[13]Lord Phillips of Worth Matravers, and Lord Scott of Foscotte specifically agreed on this topic, Lord Walker of Gestingthorpe expressed himself generally in accord but slightly more cautiously and Baroness Hale of Richmond formulated the test in slightly different terms to the effect that personal characteristics may be relevant to the knowledge that can be imputed (see paragraph 91). The learned Judge referred to the fact that she had considered the points that arose out of the guidance in this case.

[14]Mr Ross QC for the Appellants (who did not appear in the court below) also relied on the more recent decision of the House of Lords in Haward v Fawcetts

[2006] UKHL 9

[2006] 1 WLR 682

. That dealt with the similar provision in section 14A(8) of the Act which concerns time limits for negligence actions where facts relevant to the cause of action are not known at the date of accrual and is to the effect that, in relation to negligent advice, time starts to run from the date when enough is known that the damage may be attributable in whole or in part to the act or omission alleged to constitute negligence for it to be reasonable for a reasonable person to embark on preliminary investigations into the possibility that acts or omissions had been the cause of damage. As a result he submits that the limitation period in this case started to run not from the date on which the Respondent realised that his employers’ breaches of duty caused his injury but from the earliest date on which the Respondent as a reasonable person should have embarked on preliminary investigations into the possibility that his employer was responsible for his hand symptoms. I agree that actual knowledge is not necessary; a proper analysis is clear from the speech of Lord Mance at para 126 in these terms:

“126. The language of section 14A thus recognises a range of different states of mind: (a) actual knowledge of the material facts about the damage and other facts relevant to the action (including therefore knowledge that the loss was capable of being attributed to an act or omission alleged to constitute negligence); (b) knowledge that a claimant might reasonably have been expected to acquire (from facts observable by himself or ascertainable by him or with the help of appropriate expert advice which it would have been reasonable for him to seek); and (c) ignorance. Actual knowledge within (a) involves knowing enough to make it reasonable to investigate whether or not there is a claim against a particular potential defendant: see para 112 above.

(a) ”

[15]Applying that analysis to the circumstances of personal injury litigation, an injured person must know sufficient to make it reasonable for him (by himself or with advice) to acquire further knowledge of the link between his injury and his prior working conditions.

[16]Turning to the facts of this case, Mr Ross advances a series of alternative dates from which he argues that the Respondent knew enough to start time running. Mr Cooksley QC for the Respondent who similarly did not appear before Judge Williams argues that this analysis goes beyond the date contended for by the pleadings and the evidence: at best, it might have been suggested in closing submissions. Mr Ross responds that although the pleadings could and perhaps should have been amended to reflect the case as it emerged, in this type of litigation, proportionality means that this step is not always taken, particularly when a final formulation of the relevant date depended on the Respondent’s evidence.

[17]Examining the skeleton argument placed before the Judge (drawn after the witness statements had been exchanged), there is not a hint that a date of knowledge prior to 2000 will be suggested. The cross examination, which I examine below, does not categorically put the case now advanced and, in my judgment, there is real force in the argument that the Respondent was entitled to be able to respond in his evidence to the case that he had to meet (irrespective of the fact that the burden of proof rested on him). A draft amendment to the pleadings with a skeleton argument making the point would have been the least that the Respondent was entitled to. If earlier dates relevant to the decision under section 14(3) of the Act came into play (as is now suggested it did), common fairness required that the Claimant had the opportunity of meeting that allegation.

[18]Putting the point to one side for a moment, I analyse the suggested dates. First, Mr Ross takes the date as 1991 when the Respondent first noticed problems with his fingers tingling and becoming numb, or 1992, when the symptoms were worse in the cold. The Respondent explained that he then believed that the symptoms were the product of age and there was no evidence to any other effect. It does not even appear to have been suggested that the symptoms were sufficiently serious to take the Respondent to his doctor. In my judgment, irrespective of any other argument, there is no basis for suggesting that he considered or should have considered that his injury was not the product of some ageing process. Even very much later, there is not the slightest evidence that he either was or should have been aware of the potential dangers arising from vibrating tools.

[19]1998/9 is the next date suggested by Mr Ross on the basis that in the examination of March 2000, the Respondent told Dr Cleeland that he was experiencing numbness in response to cold and at other times, with both hands and fingers affected. When cross examined, he agreed that by then, the symptoms were of real concern to him. He was then asked: “Q: By then, you do know that it is not just age, do you not? A: Roughly, Yes. Q: Is it fair to say that you had never heard of anybody else developing these sorts of symptoms just --- A: No, I’ve never heard of it before. Q: And you had been using vibrating tools a lot by the late 1990s, had you not? A: Yes. Then, after a few questions concerning the extent of use of such equipment, the questions go on to refer to the occupational investigation conducted by Dr Cleeland: Q: Do you remember this examination in June 2000? A: Was that with Dr Cleeland? Q: Yes. A: Yes. Q: I should just like to suggest to you that he must have taken this information from you; you must have given it to him, about the whacker plate and jack-hammer. A: Yes. Q: The 28 years’ exposure. By this time, you did know, did you not, that the problems with your hands was probably related to the use of those tools? A: Yes. I still wasn’t told by Tarmacs. I was told that by the hospital. Q: It was clear, was it not, from that meeting with Dr Cleeland? A: Yes.

Q: Do you remember this examination in June 2000? A: Was that with Dr Cleeland?

[20]Mr Ross uses this exchange to mount the argument that the Respondent was then conceding that by 1998 he knew, as a matter of probability that the problems with his hands were related to the use of the tools at work. I simply do not agree. On its proper reading, the Respondent was doing no more than making it clear that it was in the examination at the hospital that he was told of the probably link, that is to say in June 2000.

[21]Once again, there is simply no evidence that the Respondent had any inkling of the link between the injury he was suffering and his working conditions. He made it clear that he had never heard of anyone else developing those symptoms and although he was cross examined about the statement of a work mate to the effect that in about 1999, he thinks that “we” (that is the employees) were given some training/warning about vibration, and he agreed that two could have been working together at the time, he did not remember any talk of this problem at the time. One of the Appellant’s concerns, relevant to discretion under section 33 of the Act, was the paucity of evidence from this period, but there is no evidence that no-one was available. I shall return to this point later but that witness, whose statement was put, was not called to contradict the Respondent or to provide any colour to the bald allegation of “some training/warning”.

[22]Further, the concession that by 1998/9 the Respondent knew that his difficulties were not just caused by age provides no evidence as to what he thought the cause might have been, sufficient to generate the need to further investigate the position in relation to his employers. He simply wasn’t asked about it; he was not asked about seeing his doctor or raising the matter with anyone. Finally, there was no further investigation of the time frame 1998/1999. The bracket had only been arrived at by counting backwards from the inaccurate history in a medical report of May 2004 that symptoms started approximately five or six years previously. Doubtless, this was because of the way that the Appellants were then putting their case in relation to primary limitation, and it may be that this is why the learned Judge left open the possibility that time ran from that period, but in the absence of proper investigation at the hearing, and bearing in mind the pleaded case, I am not prepared to conclude that the use of the words “1998/9” identifies a specific period of time, particularly given the clearer evidence available in March 2000, that is to say 4 or 5 years prior to the medical examination rather than 5 or 6 years.

[23]In March 2000, following a routine health care assessment, the Respondent was told in writing by Dr Cleeland that he had some symptoms which might be attributable to exposure to vibration at work. I accept that even then, he was not being told that there was a causative link and, indeed, there is some force in the argument that, given the way that it was put to him, the Respondent should not be overly criticised for not taking the matter further. In my judgment, however, the doctor’s conclusions demonstrated that there was a real possibility that working conditions had caused the symptoms and, for a reasonable man, required investigation.

[24]Although referring at the conclusion of her judgment to a number of decisions including Adams, the learned judge did not deal with the issue of deemed knowledge within section 14(3) of the Act at all. That is not surprising because the sub-section is simply not mentioned in the Appellant’s skeleton argument for the court below. Even in relation to section 33, the skeleton argument does not condescend to an analysis of the individual features of that section which might itself have focussed on the need to go further than identify that primary limitation had passed.

[25]Why should the Respondent now be able to take the point? Mr Ross submits that although irrelevant to the section 11 argument, which is not now before the court, it is of importance to the general issue of discretion under section 33 and, given his complaints about the way that this aspect of the decision is reasoned, it is open to the court to exercise its discretion afresh. I will come on to consider this argument, but for the purposes of this exercise, I am prepared to make it clear that I would have concluded that constructive knowledge dated from 29 March 2000, just under 4 months prior to the date identified by the learned judge.

Section 33 of the Act

[26]The unfettered discretion conferred by this provision is well known. To the extent that it would be equitable, having regard to the prejudice caused to the respective parties, it is open to the court to direct that the limitation provisions set out in section 11 shall not apply to the action. Section 33(3) obliges the court to have regard to all the circumstances and identifies six, in particular. It will be necessary to consider them separately but they are: (3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to--(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 [, by section 11A] or (as the case may be) by section 12;

(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 plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d) the duration of any disability of the plaintiff 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.

[27]Mr Ross first submits that this discretion should be exercised only if the case merits exceptional indulgence to the Claimant citing KR v Bryn Alyn Community Ltd

[2003] QB 1441

. At paragraph 74(ii) (page 1470), giving the judgment of the court, Auld LJ put the matter this way:

“74(ii) The burden of showing that it would be equitable to disapply the limitation period lies on the claimant and it is a heavy burden. Another way of putting it is that it is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it; as the following reminders of Lord Diplock, in relation to the statutory predecessor of section 33, in Thompson v Brown [1981] 1 WLR 744, 750, 752, underline: "Section 2D empowers the court to direct that the primary limitation period shall not apply to a particular action or cause of action. This is by way of exception, for unless the court does make a direction the primary limitation period will continue to apply. The effect of such a direction, and its only effect, is to deprive the defendant of what would otherwise be a complete defence to the action ... for even if he also has a good defence on the merits he is put to the expenditure of time and energy and money in establishing it, while if ... he has no defence as to liability he has everything to lose if a direction is given under the section." (Emphasis added.) "when the court makes a direction under section 2D that the provisions of section 2A should not apply to a cause of action, it is making an exception to a general rule that has already catered for delay in starting proceedings that is due to excusable ignorance of material facts by the plaintiff as distinct from his lack of knowledge that the facts which he does know may give him a good cause of action in law. The onus of showing that in the particular circumstances of the case it would be equitable to make an exception lies upon the plaintiff; but, subject to that, the court's discretion to make or refuse an order if it considers it equitable to do so is, in my view, unfettered. " (Emphasis added.)”

[28]It is important to underline that Auld LJ was not seeking to place a gloss on the observations of Lord Diplock and I read the words “exceptional indulgence” as meaning no more than an indulgence that represents an exception to the general rule that a claim should be brought within the primary limitation period. Inevitably, that casts a burden on the claimant to demonstrate good reason to justify the exception but, again, that burden is itself not intended to suggest that it has necessarily become more difficult since it was first introduced. The discretion remains unfettered but its exercise requires justification the reasons for which are articulated by the judge’s judgment.

[29]Before turning to the specific facts of this case, it is important to underline the well known background circumstances. As I said at the beginning of this judgment, industrial disease (and certain forms of industrial injury) have created a challenge for the law and its need to strike a fair balance between employers responsible for industrial safety with the resources to research good practice and keep appropriate records and the need for injured employees, including those whose injury does not arise from an obvious incident, to pursue timeous claims which do not put their employers at an unfair disadvantage by reason of passage of time. It may not be a coincidence that applications to disapply have not unusually arisen in this type of case whereas the particular authorities to which Mr Ross has referred both concern unusual, if not novel claims (in relation to Adams, a claim against an education authority in relation to untreated dyslexia and to KR, sexual and physical abuse in care homes) where there will not have been the same recognition at the time that the cause of action arose of the risk and the need for safety records of the type routinely kept in industrial settings.

[30]Turning to a consideration of the merits, the learned Judge correctly identified the approach required by the Act and proceeded to analyse the specific factors identified as relevant. As to the length and reasons for the Respondent claimant’s delay, she said:

“I accept that the claimant may not fully have appreciated, or taken on board, the advice he was given until after his medical in June 2003, and I understand this is a subjective test. Whilst it would be reasonable to say the claimant should have understood what he was being told, his evidence is that he did not. The delay itself, on the face of it, is a period of eight months. The limitation period, on my finding, would have expired in July 2003, and proceedings were issued in March 2004. It is therefore a relatively short delay.”

[31]As I have made clear, I would have concluded that limitation started to run at the end of March 2000 with the result that the delay is just under one year, as opposed to 8 or 9 months. As the other features are examined, if the extra months should or might have made a difference to any balancing exercise, this could be important and would require this court to consider the exercise of its discretion. If it could not have made any difference, however, there will be no basis for interfering with the judge’s decision simply because of this feature, particularly as it was not the way the case was put before her.

The judge then went on to consider the effect of delay on the cogency of the evidence and said:

“I have not been told how many other claims these defendants may or may not face from claimants in similar circumstances to this claimant, but it seems likely that they do from the evidence given in support of the claimant by his witnesses from only one of whom I heard in oral evidence. In that case it seems to be likely that these defendants who are on notice as to this claim will not be unduly prejudiced if this action were to proceed. They have known since March 2004 about this claim and no doubt have had the opportunity in this and possibly other cases to research relevant materials. Further, these defendants could not say they were unaware of the possibility of such claims in view of the doctors’ reports, those reports having been authorised by the defendants and no doubt paid for by them, in which the position was made clear, and this claimant, of course, consented to the information obtained from the doctor being disclosed to his employers. That is documented in the paperwork.”

[33]In my judgment, these points are well taken. In addition, it is to be noted that in relation to obtaining witnesses, there was no evidence that some appropriate personnel (or indeed records) were not available. The highest the matter was put in the statements is that Mr Bradley spoke of the process of trying to identify and gather documents and witnesses as having been ‘significantly hampered’ by the lapse of time between diagnosis in 2000 and his becoming aware of the claim. He said that some employees had transferred, an office had closed, the infrastructure of the businesses diminished to point of non existence and some other employees retired. Quite apart from the point later made by the judge as to what was done when the potential diagnosis must also have been obvious to the employers who will have understood its significance, this statement does not assert that no documents or witnesses could be found or the precise effect of the enigmatic phrase ‘significantly hampered’. Mr Rollason asserts that it would have been ‘much easier’ if the claim had been made in 2000 but says nothing about what can be obtained. He also mentions regular Health and Safety meetings, making the point that he was not told of any complaint by the Respondent. He says nothing otherwise about the evidence or lack of it regarding the steps taken to avoid disease or disability from vibrating equipment either from that or earlier employment.

[34]As to conduct of the Appellant (then defendant),

the judge said:

“The defendants’ conduct is to be taken into account. It is clear to me that these defendants failed to recall this claimant for a medical review a year after July 2000 as the doctor had advised, and indeed informed both the claimant and defendants was necessary. There was no review until June 2003. Had the defendants acted as they should have done as responsible employers with regard to the regulations on these diseases, the claimant may not have found himself in this position. ”

[35]Mr Ross challenges the relevance of this failure because it did not impact on his ability to bring the claim. He argues that by the time he received the 19th July 2000 letter, recommending the further review after a year, the Respondent had all the knowledge he needed to bring a claim if he wished to but instead, quoting the judge, “he did not decide to pursue his claim until after receipt of the doctor’s letter in June 2003”.

[36]That submission implies that the Claimant knew that he had an actionable claim after the July letter but that is not what the Judge found. True it is that he knew both that he had a significant injury and that its likely cause was the exposure to vibration. Knowledge that he had a cause of action is irrelevant to limitation but, in my judgment, material to the jurisdiction to disapply the limitation period. The fact is that after the July 2003 review, the Respondent did seek legal advice and commence proceedings. The Appellants had arranged for the 2000 review and if they had arranged for a further review in 2001 (which their occupational physician had specifically said should be arranged in a report which they must have seen but as to which there is no issue but that they were aware), it is at least arguable that wheels would have been put into motion at that time. In my judgment, on the special facts of this case and, more specifically, the fact that the occupational physician engaged by the employer had specifically raised the possibility of this condition and suggested review after one year, the conduct of the Appellants was relevant. I reject the submission that only forensic tactics after the intimation of a claim are relevant: section 33(3)(c) only includes forensic issues and does not exclude other conduct. To such extent that Wright J in Hodgson v. Imperial Tobacco Ltd (09 February 1000) may have suggested otherwise, I disagree.

[37]It is convenient to deal with the Respondent’s delay at this point. Having accepted his evidence that he did not understand what he was being told such that he may not fully have appreciated the advice that he was being given, the judge concluded that after June 2003, his delay had not been dilatory. Mr Ross criticises this part of the judgment submitting that the delay is not 8 or 9 months (or even a year) but just under 4 years: given that the judge was entitled to consider not merely what he should have known but also the extent to which he acted promptly and reasonably when he knew that his injury might be capable of giving rise to a cause of action, when the two paragraphs of the judgment are put together, I do not accept that it is open to the criticism suggested.

[38]The only specific feature with which I have not dealt is the duration of any disability which should be taken with the argument about proportionality. Judge Williams took the view that potentially the claim fell into the most serious bracket of the relevant JSB guidelines and was therefore up to £21,000. Mr Ross pointed to the submission that the true value was not likely to exceed £10,000 but, even accepting that the Judge was right, it was insufficiently substantial to justify the exercise of discretion. He bases the argument on observations in Robinson v St Helens Metropolitan Borough Council [2003] PIQR 128, in which he said at paragraph 33 “The question of proportionality is now important in the exercise of any discretion, none more so than under section 33. Courts should be slow to exercise their discretion in favour of a claimant in the absence of cogent medical evidence showing a serious effect on the claimant's health or enjoyment of life and employability. The likely amount of an award is an important factor to consider, especially if, as is usual in these cases they are likely to take a considerable time to try. ”

[39]This comment was cited with approval by Lord Hoffman in Adams (at paragraph 54) in terms:

“Their Lordships think that these observations from judges with considerable experience of exercising and overseeing the section 33 jurisdiction carry great weight.”

[40]The matter was addressed again in McGhie v British Telecommunications PLC

[2005] EWCA Civ 48

in which May LJ explained proportionality in these terms:

“35. In my judgment this is not a correct interpretation of what Sir Murray Stuart-Smith had said. The question of proportionality is, in my judgment, in the first place, a proportionality between the size of the claim and the legal and other costs of running it. The question of proportionality also has an eye, in my judgment, to the strength of the claimant's claim. In my judgment, taking the matters in the round, it would be a great prejudice to a claimant who was very badly injured and likely to suffer the consequences of that injury for many years to come if, what would otherwise be a very large claim, based upon very strong evidence, were to be lost through a refusal to exercise the discretion under section 33.”

[41]In that regard, it is noteworthy that Adams was the unusual claim arising out of undiagnosed dyslexia and McGhie concerned a back injury following a specific incident five years prior to the commencement of proceedings. It is not that there is a specific financial hurdle which must be overcome for any claim of this nature to succeed, but rather a consideration both of the benefits to the claimant in terms of strength and value of claim and the potential cost both legal and in manpower or otherwise to the organisation of the proposed defendant. In the context of a claim for industrial injury such as that suffered by this Respondent of a type that any employer whose business has required the use of vibrating equipment is likely to have faced, it is open to the court to use this jurisdiction to disapply primary limitation if it is equitable to do so: that is the nature of the discretion created by the statute.

[42]Nothing of this analysis turns on the difference between the date of knowledge of March and July 2000 and, in my judgment, the discretion exercised by the learned Judge was open to her on the facts of the case. As to the operation of the Limitation Act, I would dismiss this appeal.

Costs

[43]A second limb for which the Appellants were given leave concerns the costs of the preliminary hearing. It was submitted that the bulk of the two day hearing was concerned with the issue of date of knowledge of significant injury attributable to employment and the identity of the employers, both of which the Respondent lost. Nevertheless, the judge ordered the Appellant to pay all the costs the only note of that aspect of her judgment being that not all the blame could be laid at the Respondent’s door. Mr Ross submits that the judge was wrong not to make an issue based costs order under CPR 44.3 to reflect the fact that the Appellants had been successful on substantial issues.

[44]Mr Cooksley argues that the court has a wide discretion in relation to costs (which the Judge was entitled to exercise as she did) and that issue based costs should only be made in lengthy and complex matters. In straightforward cases of this nature, he submits that costs should follow the event. He also submits that such orders in cases of this nature will have great consequences for access to justice as lawyers will be faced with difficult decisions as to whether to take a point and risk costs, even if ultimately successful in the action, or not take the point and risk an allegation of professional negligence. Mr Ross responds by suggesting a percentage costs order on the basis that the CPR encourages the parties to concentrate on those issues on which they are likely to succeed. Substantial costs (including the attendance of Dr Cleeland) were the consequence of the argument on section 11 which in the light of the letters that the Respondent had received was thin, at best. He submits that the issue has nothing to do with funding criteria but everything to do with not taking plainly bad points on the available evidence.

[45]I entirely agree that the issue of costs generally falls to the discretion of the judge and that this court should be extremely slow to intervene with that discretion. That does not mean, however, that if this court comes to the clear conclusion that the decision of the judge was wrong because the judge has not balanced the various factors in the scale, it should not intervene (see per Stuart Smith LJ in Roache v. News Group Newspapers [1998] EMLR 161 (at 172) repeated in Adamson v. Halifax plc

[2002] EWCA 1134

at para 16,

[2003] 1 WLR 60

[46]In this case, with full disclosure of the documents and, in particular, the medical reports, the Claimant determined to pursue the argument that proceedings were issued before primary limitation had expired. As a result, a very much lengthier hearing than would otherwise have been the case was inevitable. It is incumbent on all those involved in litigation to ensure that they carefully reflect on those issues that they seek to put before the court and it will be no bad thing if that leads to the reduced pursuit of bad points.

[47]Mr Cooksley makes a number of additional submissions on this issue. First, he argues that the advent of conditional fee agreements and (more particularly) the need for after the event insurance should be taken into account in the resolution of these issues. Thus, he said that if the court overturned this decision and made either an issues based order for costs or a percentage costs order, severe consequences could result. In his skeleton argument on this issue, he put the matter this way:

“For example, ATE insurers are likely to become even more reluctant to back claims or will significantly raise premiums and claimant’s solicitors may become even more cautious as to what claims they take on or how they run them thereby increasing the conflict of interest with their clients and having a detrimental effect on access to justice.”

[48]However uncomfortably this submission might fit with the overriding objective and the need for advisers to strip out the bad points and advance only the good ones, I can well understand that making an adverse order for costs in circumstances such as these (overall success albeit following failure to make good a significant alternative formulation of the case) could impact on premiums and might well have a detrimental effect on a number of aspects of funding in this field. The same argument does not, however, apply to percentage costs orders which can be fashioned to ensure that a party does not profit from his failure on a substantial point which resulted in a real increase of the overall costs. The ATE insurers would simply not be engaged on the basis that no adverse order for costs would result.

[49]The second further argument advanced by Mr Cooksley is based on Blakes Estate Ltd v. Government of Montserrat

[2006] 1 WLR 297

in which the House of Lords determined that a claimant who had been awarded compensation for the compulsory purchase of his land should prima facie be entitled to his full costs although where he had put forward a grossly excessive claim, he could be deprived of part of his costs if the exaggeration had given rise to an obvious and substantial escalation in the costs incurred with the amount of such reduction being proportionate to the time wasted and costs properly attributable to the exaggeration. He argues that this case endorses the principle that a claimant is entitled to put his case at its highest. I entirely accept that proposition. On the other hand, however, there is a distinction between putting the case at its highest (for example, in relation to many heads of damage in a personal injuries claim) and advancing a basis for relief on a basis that fails (especially if it is entirely unsupportable).

[50]Finally, Mr Cooksley informed the court that the Claimant had made a Part 36 offer, so that he submitted that costs should be reserved to the trial judge for resolution depending upon the ultimate conclusion of the trial. I see no merit in this argument at all. However well or badly the Claimant fares in relation to any Part 36 offer will not affect the question of costs unnecessarily incurred in relation to an issue that failed.

[51]Notwithstanding the Respondent’s evidence, based on the documentary material and the authorities, in my judgment, the section 11 argument simply could not succeed and I conclude that the learned judge did not appropriately balance this factor in the scale. I see no reason why the Appellants should bear the costs (enhanced to reflect the risk of a conditional fee agreement) in relation to this issue. Although I would not order the Respondent to pay any costs to the Appellants, in order to reflect the way in which the issues were resolved but taking account of the evidence that would have been necessary in any event, on the facts of this case, I would vary the order as to costs and order the Appellants to pay 65% of the Respondent’s costs of and incidental to the preliminary issue of limitation. Further, if the bill of costs is in the sum advanced and referred to in terms of astonishment by Hallett LJ, I can only express the view that it should be subject to rigorous analysis on assessment.

[52]In the circumstances, I would dismiss the appeal in relation to the resolution of the limitation issue but allow it on the issue of costs to the extent that I have indicated.

[53]I agree that the appeal on the Limitation issue should be dismissed for the reasons given by Leveson LJ, and I also agree that the appeal on costs should be allowed to the extent he has indicated and for the reasons he gives. I would however like to add a few words on the costs appeal having regard to what we were informed during argument on that issue.

[54]Mr Cooksley in seeking to uphold the judge’s order went a little further than the paragraph from his skeleton quoted by my Lord in paragraph 47. He did so as I understood him on information from his instructing solicitors. He informed us that ATE insurers would not provide insurance to claimants if the only point they were arguing on Limitation was for an extension pursuant to Section 33. So his submission was that in order to obtain such insurance even rather weak points on Section 14 were run. I found this a troubling submission if it suggests that advice on points to run might be coloured by whether insurance to back a CFA was a factor.

[55]I would in fact be surprised if the position was this black and white so far as insurers were concerned, but whatever the position on insurance may be, the duty on those advising claimants which existed where public funding was the issue, is no different under the present circumstances. If a point is a bad one, that should be the advice that those advising should give. Apart from the duty of proper disclosure to the insurers as to the true view of the merits of a case, there is an over riding duty to the court not to run unarguable points.

[56]It is certainly not an argument for an order that an opponent should bear all the costs of the successful party, that some bad points needed to be run in order to obtain ATE insurance.

[57]I view with disquiet the sum suggested as the costs incurred by the respondents’ solicitors in this case on this preliminary issue - £69,480.58. I must accept from Mr Cooksley that it was felt proper to advise the claimant in this case that he had an arguable Section 14 point because the claimant was saying that although he had received the letter of 19 July, he had been told by the doctor that he was not suffering from vibration white finger. But if this sort of figure is typical for a preliminary issue of this kind and if it were thought to be recoverable on assessment, it would indicate that there may be a temptation to advise the taking of a rather weak point so that a CFA and insurance can be put in place.

[58]On any view in these types of case the courts should not be slow to make a reduction in the costs that a successful party should recover if they form the view that bad points have been argued and lost.

[59]So far as the costs of the appeal are concerned, I am anxious that no further unnecessary expense is incurred. Short written submissions should ensure that no counsel need to appear at the handing down of these judgments.