“Special time limit for actions for personal injuries 11(1) Except where sub section (5) below applies, the period applicable [in personal injury claims] 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.”
“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 33] can be invoked at all. The section opens with the words: “(i) 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 11]… of this Act prejudice the plaintiff…”
“So, to entitle the court to give a direction under [section 33(1)], there must be some prejudice to the plaintiff and the cause of that prejudice must be the requirement under [section 11] that he should start his action before the expiry of the primary limitation period. My Lords, in my opinion, once a plaintiff has started an action (the first action) within the primary limitation period it is only in the most exceptional circumstances that he would be able to bring himself within [section 11] in respect of a second action brought to enforce the same cause of action. If the first action is still in existence, as it was in the instant case when the matter was before the Master or the judge, cadit quaestio; he has not be prevented from starting his action by [section 11] at all, so the provisions of [that section] cannot have caused him any prejudice. Does it make any difference if the first action is no longer in existence at the time of the application under [section 11] either because it has been struck out for want of prosecution or because it has been discontinued by the plaintiff of his own volition? In my view, it does not. These are self inflicted wounds. The provisions of [section 11] caused him no prejudice at all; he was able to start his action. The only cause of the prejudice to him in the case of dismissal for want of prosecution is dilatoriness which took place after the action was started whether on his own part or on the part of his legal advisors. In the case of discontinuance the only cause of prejudice is his own act. … I would allow the appeal upon the ground that Mr Walkley, having previously started an action for the same cause of action within the primary limitation period prescribed by [section 11], cannot bring himself within [section 33] at all. Any application by him under that section would fail in limine.” (Emphasis added by me.)
“Because we were negligent, in effect, in not issuing within the primary limitation period therefore Walkley does not apply and therefore you (the Judge) retain your discretion to disapply the limitation period under section 33.”
“14. It seems to me that this case is stronger than Walkley. It is not, as the Claimant says, an opportunity to escape from that which was laid in Walkley, rather as I say it was a stronger case because in this case the Claimant had already issued late. The defendant decided not to take the limitation point, but had he taken the limitation point the Claimant could hardly say I am starting again. In fact what happened was that the Claimant failed to serve … the proceedings within the appropriate time and the proceedings came to a halt [and] were struck out as I have described. 15. It seems to me, therefore, and I have looked at the other cases, none of which seem directly in point, that the principle of Walkley does apply to this case and that therefore I have no discretion to allow the claimant to proceed under section 33. ”
“Despite the use of the phraseology “an action shall not be brought,” it is trite law that technically the Limitation Act does not prevent the commencement of an action by the Plaintiff after the limitation period has expired. What it does is to provide the defendant with a cast-iron defence if he chooses to avail himself of it; which he may do either by pleading it or, in a case where the action is in indisputably statute-barred, by taking out a summons to have it dismissed as vexatious. For the sake of brevity, however, I shall speak of the effect of the expiry of a primary limitation period as preventing the starting of the action.”
“Walkley … was a case in which the plaintiff had issued and served his writ within the primary limitation period; so section [11] had not affected him at all. No further steps were taken in the action within the primary limitation period and it was ripe to be dismissed for want of prosecution. In an attempt to avoid this fate a second writ founded on the same cause of action was issued by the plaintiff’s new solicitors. Considerable procedural manoeuvring by both parties followed, in the course of which application was made under section [33] to allow the action started by the second writ to proceed. This House took the view that, the plaintiff having brought within the primary limitation period an action for damages for the very negligence which constituted the cause of action alleged in the second writ, he had not been affected by section 2A [11] at all, let alone prejudiced by it.”
“In Walkley … the primary period of limitation had not expired when the plaintiff had started his action against the tortfeasor. That was the only reason why section [33] did not apply to his case”, (with emphasis added by me). At p. 752 he acknowledged that: “It may seem anomalous that a defendant should be better off where, unknown to him, a writ has been issued but not served than he would be if the writ had not been issued at all …”
“…I cannot accept the submission that [Walkley] is a decision only on the facts of that case. It seems to me plainly a decision on principle that if a plaintiff starts but then does not for any reason proceed with an action, whether it is because the plaintiff chooses not to serve or his solicitors fail to serve the writ timeously or because the action is subsequently struck out for want of prosecution, or because for good reason or bad the plaintiff or his solicitors give notice of discontinuance, it is not open to the plaintiff thereafter to seek to take advantage of the provisions of section [33] … because as their Lordships have laid down (and we are of course bound by their decision) the cause of his prejudice is not the provisions of section [11], that is to say, the existence of the primary limitation period, but is the act or remission of himself or his solicitors in acting or failing to act as he or they have done in relation to their action.”
“There was no action in being against the present defendants at the time when the limitation period expired or thereafter when the application under section 33 was made. … But it seems to me that the plaintiff is now prejudiced by section 11, since he cannot bring this first properly constituted action unless he can avail himself of section 33. … In my view, the position is now that he is prejudiced by section 11 and is entitled to rely on section 33. … This is not a case of a mere repetition of an identical action which has been instituted during the limitation period. In the present case the action which had started during the limitation period was defective and invalid and not capable of resurrection… The Court is therefore entitled to conclude that the provisions of section 11 prejudiced the plaintiff in relation to the present action. Accordingly I would dismiss this appeal and allow this action to proceed by reason of section 33.”
“Lord Wilberforce was there [p. 609 cited above] saying that as a matter of construction the particular prejudice to which the section 33 discretion is directed is that occasioned by the plaintiff not having issued his proceedings within the primary three-year limitation period. Once he has issued his proceedings within that period, then, for whatever reason they have ceased to exist – whether through failure to serve, strike out for want of prosecution, or discontinuance – section 33 simply has no application. Although Lord Wilberforce observes that any prejudice resulting from the ultimate ineffectiveness of the first proceedings is due rather to the plaintiff’s inaction than to the act (i.e. the proceedings not having being issued in time), this observation seems to me strictly outside the ratio. It is, after all, plain that the section 33 discretion arises notwithstanding a plaintiff’s solicitors’ perhaps far greater negligence in failing ever to have issued proceedings within the primary limitation period in the first place. Indeed, as Lord Diplock expressly recognised in Thompson v Brown [1981] 1 W.L.R. 744, 752 that is an undoubted anomaly arising from the Walkley principle. I accordingly understand the Walkley principle to exclude from section 33 only actions which involve the same defendant and the same cause of action as was the subject of the earlier, timeous proceedings.”
“The general tendency of those cases, I have no doubt, is to support the plaintiff’s argument. In the first place, they suggest a marked unwillingness on the Court’s part to apply the Walkley case … unless it is plainly indistinguishable. … By the same token that the Walkley principle itself rests upon a narrow and somewhat technical construction of section 33, so too it is, in my judgment, possible to escape it on just such grounds. That, moreover, is particularly appropriate given the undoubted anomalies that in any event arise from the application of the principle – most notably, as already pointed out, its failure to impact on cases of perhaps greater negligence where no writ was ever issued in the first place. I would accordingly rule that the section 33 discretion arises in all cases save those which fall four-square within the Walkley principle.”
“The rationale of the Walkley principle is, as already explained, that it is not the time limit in section 11 which prejudices the claimant in such circumstances but rather the fact that he had previously commenced timeous proceedings which, for whatever reason, were not then successfully pursued.”
“(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 … ; (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 defendant 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.”
“The trouble in this case is that which I set out earlier on, that the claimant knew immediately after the accident at the time of the accident she had a good cause of action and proceedings were not issued, not even attempted to be issued, until the very end of the limitation period. It is standing on the edge of Beachy Head hoping the wind does not blow too hard to do that and I am afraid solicitors do time and time again; one sees it all the time.”
“So it seems to me that however one looks at it, if I had to weigh up those matters in the balance I would without hesitation find that the claimant should not be given leave to proceed with the proceedings out of time.”
“The onus of showing that in the particular circumstances of the case it would be equitable to make an exception lies on 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.”
“The overall question is one of equity, namely, whether it would be ‘equitable’ to disapply the limitation provisions having regard to the balance of potential prejudice weighed with regard to all the circumstances of the case, including those specifically mentioned in s 33(3).”
“It does not, however, follow that, in weighing the prejudice to the defendant, the court is not entitled to take into account the date upon which the claim is first made against the defendant. Compare the facts in Thompson v Brown with the facts of this case. In Thompson v Brown the claim had been made within a few weeks of the accident and liability and damage had been fully considered by the defendants’ insurers at an early stage. At the time the limitation period expired, the defendants’ insurers were in a position to settle the claim on its true merit. The fact that the plaintiff’s solicitors slipped up so that the writ was issued 37 days late was a totally unexpected windfall benefit for the defendants’ insurers. The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim, that is, a claim with which he never expected to have to deal. … I entirely agree with the following passage from the judgment of Stuart-Smith L.J.: ‘The time of the notification of the claim is not one of the particular matters to which the court is required to have regard under s 33(3); although it may come in under paragraph (e). But to my mind it is an extremely important consideration, and is always so regarded by judges who have to consider these questions. …’.” ‘The time of the notification of the claim is not one of the particular matters to which the court is required to have regard under s 33(3); although it may come in under paragraph (e). But to my mind it is an extremely important consideration, and is always so regarded by judges who have to consider these questions. …’.”
“If he has acted promptly and reasonably it is not to be counted against him, when it comes to weighing conduct, that his lawyers have been dilatory and allowed the primary limitation to expire without issuing a writ. Nevertheless, when weighing what degree of prejudice the plaintiff has suffered, the fact that if no direction is made under s [33] he will have a claim over against his solicitor for full damages that he could have recovered against the defendant if the action had proceeded must be a highly relevant consideration.”
“The degree to which the plaintiff would be prejudiced by being prevented from proceeding with his action would be affected by how good or bad would have been his prospects of success; so too it will be affected by the extent to which the plaintiff will be able to recover in an action for negligence against his own solicitor the value of his lost prospects of success. But even where, … , if the action were not allowed to proceed the plaintiff would have a cast-iron case against his solicitor in which the measure of damages will be no less than those he would be able to recover against the defendant if the action were allowed to proceed, some prejudice, although it may be only minor, will have been suffered by him. He will be obliged to find and instruct new and strange solicitors; there is bound to be delay; he will incur a personal liability for costs of the action up to the date of the court’s refusal to give a direction under section [33]; he may prefer to sue a stranger who is a tortfeasor with the possible consequences that may have on the tortfeasor’s insurance premiums rather than to sue his former solicitors with corresponding consequences on their premium.”
“The result is that the game will continue to be played between defendants’ insurance companies and solicitors’ insurance companies. That is not a situation which I personally find at all satisfactory …”