Davies & Ors v Secretary of State for Energy and Climate Change [2012] EWCA Civ 1380

[2012] EWCA Civ 1380

Case No B3/2011/0187

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

Venue QUEEN’S BENCH DIVISION, LEEDS DISTRICT REGISTRY

[2011] EWHC 11 (QB)

His Honour Judge S P Grenfell

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

Date 25/10/2012

Before

LORD JUSTICE MUMMERY

LADY JUSTICE HALLETT

LORD JUSTICE TOMLINSON

Between

Davies & OthersAppellants

The Secretary of State for Energy and Climate ChangeRespondent

David Allan QC and Ivan Bowley (instructed by Irwin Mitchell Solicitors) for Appellant

Leigh-Ann Mulcahy QC and Andrew Kinnier (instructed by Nabarro LLP) for Respondent

Hearing Hearing dates : 30 April – 2 May 2012

Judgment

Introduction

[1]This appeal is concerned with the working conditions which obtained in coalmines in England and Wales between 1954 and 1994. Specifically it concerns the question whether eight representative miners should be allowed to bring, long after the expiry of the applicable limitation period, actions against the operators of the mines alleging that, negligently and in breach of statutory duty, the operators of the mines exposed them to conditions which were responsible in due course for the onset and development of osteoarthritis of the knee.

[2]The working lives underground of the eight Claimants together span the period 1954 – 1993.

[3]The significance of the earlier date, 1954, is that, as is common ground, the Limitation Act 1939 renders statute barred any cause of action vested in an English or Welsh miner arising before June 1954. I can leave out of account for present purposes that there are apparently within the Group bringing this litigation Scottish miners in respect of whom the relevant cut off date would, it is said, be 1949. The relevant period ends in 1994, when the assets of the British Coal Corporation, the successor of the National Coal Board which was established in 1947, were transferred to the private sector. By then the majority of the deep mines in England and Wales had been closed. The Defendant/Respondent Secretary of State succeeded to the liabilities of the BCC and thus also of the NCB in 1997. The BCC was wound up in 2004.

[4]One of the lead Claimants, William Davison, has sadly died since the trial of the preliminary issues against the outcome of which this appeal is brought. That outcome is that the actions should not be allowed to proceed. There is no doubt that all eight lead Claimants suffer, and in Mr Davison’s case suffered, severe, painful and disabling osteoarthritis of the knee. There is also no doubt that a substantial cause of the development of this chronic disease in the eight lead Claimants at the relatively early stage of their lives at which it manifested itself was the repeated jarring and stresses to their knee joints to which their conditions of work underground inherently gave rise. There are many other factors which may contribute to the development of osteoarthritis. They can be considered under the following broad groups:- a) inherited (genetic factors) b) joint surface damage c) repetitive joint damage d) inflammatory conditions e) increased strain on the joint f) abnormal movement of the joint Repetitive joint damage is the most significant of the causative factors for present purposes, although it should at the outset be stressed that such damage may be caused by the sustaining of repeated minor trauma such as occurs, for example, in the course of playing contact sports. An example of a condition which causes increased strain on the joint is obesity.

[5]It is accepted by the lead Claimants that repeated jarring of and stressing to the knee joint was at all material times an inherent and inevitable concomitant of working in an underground mine. It is therefore important to note at the outset that this litigation is concerned with an attempt by the miners to establish that the conditions and the manner in which they were required to work exposed them to additional risk of sustaining repeated jarring and stressing to their knee joints, over and above the risk of that nature necessarily inherent and inevitable in underground mining. Thus the lead Claimants seek to show that there were aspects of those working conditions which were both avoidable and, in accordance with the standards of knowledge and care prevailing at the time, ought reasonably to have been avoided. As the judge below remarked, at paragraph 54 of his judgment, “for obvious reasons the Claimants cannot present a case that each Claimant should not have been exposed at all to the rigours of underground mining. That would have involved presenting a case that it was a negligent breach of duty to employ anyone underground.” The judge returned to this point at the conclusion of his judgment, at paragraph 399, where he said this:- “The nature of [the miners’] heavy and demanding work and the varied conditions underground, including often very confined working conditions, were bound to take their toll on their bodies and, in particular, their joints. However, no-one could expect to launch a claim based solely on the premise that it was negligent by the standards of the day to require men to work in those difficult conditions.” The Claimants’ case, therefore, involves, as the judge pointed out at paragraph 54 of his judgment:- “A potential investigation into the causes of those repeated trauma and whether through the recollection of factual matters and expert engineering and medical evidence it is possible to prove that at least a proportion of the minor trauma is avoidable in the sense of having been the result more likely than not of some breach of duty on the part of the NCB/BCC.”

[6]We were shown archive photographs said to be illustrative of the working conditions described in detail by the eight lead Claimants in their careful and lengthy witness statements. They included pictures not just of access roadways with very limited headroom, cluttered with obstacles to safe progress, but also of men carrying out heavy lifting and shovelling work from an awkward kneeling or crouched position in conditions so cramped that they could not have assumed a more upright or less awkward working position. To anyone unaccustomed to the conditions in our coalmines in those times the photographs of themselves revealed working conditions which can only be described as appalling. In such circumstances the task of the court is invidious. Few would cavil at the notion that chronic injury sustained in working in such conditions should attract compensation.

[7]Happily since July 2009 osteoarthritis of the knee sustained by miners has been a prescribed condition attracting benefits under the Industrial Injuries Disablement Benefit legislation. The condition to be satisfied in order for a miner suffering from osteoarthritis of the knee to qualify for benefit is work for ten years or more in aggregate in any combination of the following coalmining occupations: a) Before 1986, as an underground coalminer or b) After 1985 as: i) a faceworker working non-mechanised coalfaces; or ii) a development worker or conveyor belt cleaner or attendant. A non-mechanised coalface is defined as a face with neither powered roof supports nor a power loader machine which simultaneously cuts and loads the coal. The judge below noted that the availability of this benefit may be small consolation to those who have had their hopes of greater compensation raised by the bringing of this Group litigation. That may be so. However I mention this development because it reinforces the point that this litigation is not concerned with conferring benefit from the public purse on those who sustained injury carrying out unpleasant and dangerous work in the national interest. This litigation is, by contrast, concerned with the extent to which, if at all, the miners can establish that, within the context of an operation which inevitably subjected them to the risk of repeated jarring and stressing to their knee joints, the operators of the mines were at fault in the sense of having exposed the miners to reasonably avoidable risk of such trauma over and above that inherent in working underground in an era before mechanisation and other factors led to a significant decrease in the amount of time most miners spent kneeling and squatting while undertaking heavy physical tasks – cf paragraph 6 of the Report by the Industrial Injuries Advisory Council, Cm7440 August 2008. It was this report which led to prescription for osteoarthritis of the knee in coalminers for the purpose of making available the benefit which I have described. It is only if fault can be proved that the miners will be entitled not just to a benefit but to recover damages from their erstwhile employers or rather from the Secretary of State who has assumed their liabilities.

[8]Furthermore this appeal is not concerned with the question whether such fault can be proved, although if it could be shown that the attempt to prove such fault is hopeless, the appeal could not succeed. So much is established by the decision of the Supreme Court in AB and Others v Ministry of Defence,

[2012] 2WLR 643

, colloquially known as the “Atomic Veterans Litigation”. This appeal is concerned with the question whether it would be equitable, i.e. fair, to allow the Claimants to demonstrate actionable fault so long after the expiry of the relevant limitation period. Of the eight lead Claimants, the shortest period of delay between expiry of the limitation period applicable to his claim and the issue of these proceedings is 10 years. The longest period is 21 years. The average period of delay across these eight representative Claimants is therefore 15.6 years. The question which the court must resolve is whether it would be equitable to allow each or any of the eight actions begun by the lead Claimants to proceed notwithstanding that delay. That enquiry involves not just assessing the extent to which the Claimants may at this remove of time be in a position to prove their case but also the extent to which the Defendant may be in a position to rebut the allegations of fault now raised against the NCB and BCC for whose actions and omissions he is now responsible. As I have already indicated, the judge below, His Honour Judge Simon Grenfell sitting as a Judge of the High Court, decided that it would not be equitable to allow the actions to proceed.

[9]This is Group Litigation. Whilst an application for a Group Litigation Order was issued by the Union of Democratic Mineworkers (“UDM”) on 19 May 2003 and a subsequent application issued in March 2004, both were withdrawn. A further application was issued in January 2006 and a Group Litigation Order (“GLO”) was approved by the Head of Civil Justice in December of that year. Under the terms of the GLO a claim cannot be registered unless the Claimant had worked underground for at least five years. In fact all of the eight lead Claimants had more than ten years employment underground, mostly substantially more than ten years. Because this litigation is intended to deal only with chronic long-term injury, any Claimant who had suffered major accidental trauma to the knee was excluded. Major accidental trauma to the knee is a recognised cause of osteoarthritis of the knee and the victims thereof will have had the opportunity where appropriate to make claims in the normal way. This litigation is concerned only with chronic long-term injury sustained in consequence of repeated minor trips, stumbles, knocks, working and crawling on knees and heavy lifting imposing stresses on the knees. This litigation is not concerned with bursitis, inflammation of the pre-patella bursa, commonly known as “beat knee”, a relatively temporary condition from which miners tended to suffer and which has for some time been a prescribed condition under the Industries Injuries Disablement Benefit legislation. Although progress was made in the Group Litigation in the sense of service of generic statements of case and disclosure, it was not until October 2008 that Claim Forms were issued by those Claimants wishing to join the Group Register. It was common ground that the relevant period of delay in issuing proceedings should be regarded as terminating only on the date of issue of proceedings by each individual Claimant, although it was also recognised that it is proper to take into account the reason for the delay before the making of the GLO and the issue of proceedings and appropriate also to have regard to the nature of investigations being undertaken on both sides during and indeed before that period.

[10]In October 2009 Judge Grenfell directed that the following preliminary issues should be tried:- “a) In relation to Claimants who fulfil the GLO entry criteria, what is their “date of knowledge” for the purposes of section 14 of the Limitation Act 1980 (“the Act”); and b) In relation to Claimants whose “date of knowledge” for the purposes of section 14 has expired, should the Court exercise its discretion to disapply the primary limitation period for the purposes of section 33 of that Act? More specifically, what are the factors which should guide the exercise of the Court’s discretion in individual cases having regard to the range and nature of the registered cases within the group?” Eight lead Claimants had already been selected for the purpose of the trial of the preliminary issues, four being nominated by the Claimant Group and four by the Defendant.

[11]Section 11 of the Limitation Act 1980 prescribes the basic period of limitation in respect of claims for personal injury caused by negligence or breach of statutory duty. By s.11(4) it is three years from the date on which the cause of action accrued or from the date of knowledge (if later) of the person injured. Because the kind of chronic osteoarthritis with which this case is concerned develops over many years of minor trauma and stresses to the knee, it is impossible to say with any precision when the injury was actually caused and thus the cause of action accrued. The date of first diagnosis of osteoarthritis is therefore in each case bound to be later than the date on which the cause of action accrued and it is not suggested that the Claimants could have had the knowledge relevant to s.11(4) before first diagnosis of the condition.

[12]Section 14, as amended, of the Limitation Act 1980 provides:- “ (1) … in section 11 … of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts— (a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty … and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.” “(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.”

[13]By the time of the trial of the preliminary issues the dates of knowledge of four of the lead Claimants were agreed – Hathaway 1986, Hickin 1995, Thompson 1993, Davison 1984. In relation to two others, Smith and Bell, it was agreed that their claims were out of time but their dates of knowledge were in issue, they contending for 2003 and 2001 respectively. The judge determined that their dates of knowledge were in fact 1987 and no later than 1990 respectively. Lewis and Hughes contended that their dates of knowledge were, in each case, 2007, and thus that they had issued within time. The judge determined that their dates of knowledge were, respectively 1989 and no later than 1991. There is no appeal against any of the judge’s determinations of the Claimants’ dates of knowledge.

[14]It follows that in all eight cases the judge had to consider the exercise of his discretion to direct the disapplication of the statutory time limit against the background of very substantial delay in issuing proceedings. Whilst the judge rightly examined the case of each Claimant on its individual merits, a common thread is that all of these men had a firm belief as from their date of knowledge that their knee osteoarthritis was attributable to their general walking and working conditions over many years underground. With the possible exception of Mr Hughes, on whose behalf a letter of claim was written and sent by his solicitors in 1992, it never occurred to any of the lead Claimants that they could establish that those conditions had arisen and/or been allowed to persist in consequence of actionable fault on the part of their employer. It was not until 2003 that the unions indicated that they were thinking of bringing a group litigation claim for osteoarthritis of the knee, although that information did not come to the attention of some of these Claimants until 2008. Prior to that none of the lead Claimants received any information or guidance to the effect that such a claim could successfully be brought. The Claimants’ attitude, and I do not suggest that it was unreasonable, was that they relied upon their unions for information and guidance in such matters. The unions had over the years brought group claims in respect of noise-induced hearing loss, vibration white finger and chronic obstructive pulmonary disorder. The judge said the following of Mr Bell, at paragraph 359 of his judgment:- “His reasons for not claiming earlier are that he plainly did not think that he could claim fault based compensation for what he thought was simply part of his working life, until he learnt in 2008 that a group claim for knee osteoarthritis was being contemplated. Like others he put himself entirely in the hands of his Union to initiate advice to bring a claim. He was prepared to follow the advice to make deafness, COPD and VWF claims, although there is no evidence that he initiated such claims without first hearing that such claims could be brought.” Subject to variations as to when individual Claimants became aware of their union’s initiative, this is a fair summary of all the leading Claimants’ states of mind. It should be remembered that there are at least three unions involved, the National Union of Mineworkers (“NUM”), the Union of Democratic Mineworkers (“UDM”) and the National Association of Colliery Overmen Deputies and Shotfirers, (“NACODS”) and that the NUM is itself a federated union so that there may be local variations. One of the points argued on this appeal concerns the proper approach to be adopted when exercising the statutory discretion so far as concerns the Claimants’ reliance upon their unions.

[15]Section 33(1) of the Limitation Act 1980 provides the statutory discretion to disapply the time limit in these terms:- “(1) 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 sections 11 or 11A or 12 of this Act prejudice the [claimant] or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.”

[16]Section 33(3) of the Act directs how the discretion is to be exercised:- “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 [claimant];

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the [claimant] 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 [claimant] for information 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 [claimant] 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 [claimant] to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

[17]It is common ground that the judge was exceptionally well qualified by his experience at the Bar to consider and to evaluate the evidence in this case as to the nature and significance of working conditions underground. If it was not formally common ground it is undoubtedly the case that the judge approached the task in a conspicuously conscientious and sympathetic manner and examined with care all of the arguments presented to him. The result is a judgment running to 405 paragraphs which deals first at paragraphs 1-199 with the generic issues and then, in the remainder of the judgment, with the particular circumstances of each individual lead Claimant. It is also common ground that “it is axiomatic that this court will not interfere with the exercise of discretion by the judge below unless he has misdirected himself in law, takes an irrelevant factor into account, omitted to consider a relevant factor or otherwise reached a conclusion which is irrational or clearly wrong” – per Smith LJ in AB v Ministry of Defence

[2010] EWCA Civ 1317

at paragraph 94. See also to similar effect per Clarke LJ in Burgin v Sheffield City Council

[2005] EWCA Civ 422

at paragraph 16. It follows that the Appellants face a considerable burden in seeking to persuade us that the judge erred in a manner which invites our interference.

[18]The judge first directed himself as to the proper approach to the exercise of the statutory discretion. It is not suggested that in so doing he misdirected himself and because I find the judge’s summary helpful I reproduce it in full:- “31. Horton v Sadler

[2007] 1 AC 307

reaffirmed Thompson v Brown

[1981] 1 WLR 744

in that the discretion is unfettered. I adopt the guidance to judges as provided by Smith LJ in Cain v Francis

[2009] QB 754

at 773 paragraph 63 and following:

“63 As I have said, the authorities all arrive at the same result but by different reasoning. I believe that it would be helpful to judges if some rational explanation for the authorities could be advanced. I have searched for some coherent explanation of Parliament's intention within the words of the section itself but did not for myself find one. However, having now read Sir Andrew Morritt C's judgment, I agree with his analysis of section 33(1)(b). I do not think one can infer much from the six factors in section 33(3) which, as Lord Diplock said, are “a curious hotchpotch”

“In fairness and justice, [the defendant] only deserves to have that obligation removed if the passage of time has significantly diminished his opportunity to defend himself (on liability and/or quantum). So the making of a direction, which would restore the defendant's obligation to pay damages, is only prejudicial to him if his right to a fair opportunity to defend himself has been compromised.” 33. So she concludes at paragraph 73: “73 It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.” 34. The following factors in the exercise of discretion emerge from the judgment of the Court of Appeal in the AVL: 35. The Court emphasised the importance of considering each claimant’s case individually whilst giving consideration to those generic issues that are relevant to the exercise of the discretion in each case: paragraph 95: “The MOD is critical of the judge’s generic approach, submitting that the section 33 exercise must be tailored to the individual case. We agree that that is so, but see no reason why the judge was not entitled, at a preliminary stage, to consider issues that would arise in most if not all the lead cases. That is acceptable so long as each individual case is separately considered when the time comes.” 36. Paragraph 96: “… the burden of proof under section 33 lies on the claimant (see Thompson v Brown [1981] 1 WLR 744 at 752) recognising that the suggestion made in KR v Bryn Alyn Community Holdings Limited [2003] QB 1441 that it is a heavy burden is no longer good law. The discretion to disapply section 11 is unfettered and the court’s duty is to do what is fair: see Horton v Sadler [2007] 1 AC 307 and A v Hoare.” 37. To this I should only add the case of Burgin v Sheffield City Council [2005] EWCA Civ 482, in which Clarke LJ stated at paragraph 23: “Mr Groom submits that the Judge should not have placed weight on the failure of the Council to adduce evidence of prejudice because the burden of proof was on the respondent. I do not agree. While it is true that the ultimate burden is on a claimant to show that it would be equitable to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the defendant is, or is likely to be, less cogent because of the delay is on the defendant.” 38. This is important when it comes to considering the efforts made to obtain evidence. 39. In paragraph 103 of the AVL the Court considered the relevance of funding problems when considering the reasons for delay and the timing of action: “…. the judge turned to subsection 3(e) - the extent to which the claimant acted promptly and reasonably once he had learned that he might have a cause of action. He acknowledged that this would usually depend on individual circumstances but then expressed the view that, because of the difficulties of obtaining funding, it was reasonable for any individual claimant to delay until a group action could be mounted. We are concerned about this generic approach to the reasons for delay. We think that it is important to consider reasons for delay individually and, as we will eventually show, the judge did not always deal with the reasons for delay when discussing individual cases; he must have been relying on his general observation. We doubt the validity of the proposition the judge accepted, first because in some cases, legal aid might well have been available at the material time. Also, the availability of a conditional fee agreement is not necessarily limited to group actions although we can see that a group action would be more potentially cost effective than a single action and therefore more attractive to a firm of solicitors contemplating taking it on. However, having expressed our reservations about the judge’s generic approach, we do not think that this issue will be crucial when we come to the individual cases.” 40. Whilst this was not decisive, these observations accord with my own view that the arguments advanced on behalf of the claimants to the effect that they were dependent on the actions of their Union and of other potential funders before they could contemplate the pursuit of any proceedings are poor reasons for taking no action. In my view, there is no special privilege that attaches to a potential claimant just because he happens to be a member of a Union. To hold otherwise would place him in a special position which has no basis in the terms of section 33. Once the reasonable potential claimant has taken the advice which he is expected to have taken, then protective action can be taken on his behalf. However, as in the AVL I do not consider this to be a decisive factor. This brings me to the perception of injustice point which counsel anticipated when they made their submissions to me last July and on which it was agreed that they would defer further submissions until the Court of Appeal delivered its judgment in that case. The Court dealt with this at paragraph 111: “We think that the judge erred in saying that the need to avoid an apparent injustice was a weighty factor to take into account under section 33. We think that the judge must have had in mind the impression of injustice that would exist in the minds of the claimants if their claims are struck out and also possibly in the minds of readers of the rather unbalanced coverage that these issues have received in the press. In our view those are not proper considerations for section 33.” 42. At paragraph 112 the court considered the ‘Broad Merits Test’ concluding with these words: “It would be inappropriate for the court to allow an expensive and resource-consuming trial to take place if the prospects for the claimants’ success are slight. If the prospects of success are even reasonable, those resource considerations fade into relative insignificance.” 43. The Court went on to exercise its discretion against the claimants in the majority of the cases. As Mr Allan, rightly points out, in the AVL the difficulties that the claimants faced was establishing causation between late contamination and the development of disease, prompt causation having vanished from the case. So, in effect, he submits, there is no reason to adopt a similar approach in the present litigation. I can assure those he represents that my approach is to deal with these cases on their merits and without being influenced by the way in which a court may or may not have exercised its discretion in other cases. 44. He submits, because causation was the weak link, that was one of the principal reasons why the effect of post-limitation delay was fatal to the exercise of the discretion in the claimants’ favour. That was undoubtedly so. However, the Court said this at paragraph 157: “We summarise our conclusions in respect of the judge’s general approach to section 33 issues by saying that we think that there is sufficient concern about the propriety of the judge’s approach legitimately to render his conclusions open to challenge and in the circumstances we are firmly of the view that we will have to exercise our discretion afresh as and when it becomes necessary to consider section 33. That is first because we think that the judge has significantly and wrongly underestimated the claimants’ difficulties on causation and is therefore unlikely to have given appropriate weight to that when applying the broad merits test. We think also that he has demonstrated an incorrect willingness to give weight to the claimants’ contention that if their cases are not allowed to proceed, there will be a perceived injustice.” 45. I agree with Mr Jay that the AVL judgment is relevant to the exercise of my discretion, therefore, in the following respects: (a) Whilst there may be matters which are common to all or a majority of the Lead Claimants, in exercising its discretion under s. 33, the Court must examine each individual case on its own facts (para. 95 of the judgment); (b) The question of delay and any consequential prejudice suffered by the defendant (para. 101 of the judgment); (c) The extent to which the Court should have regard to the “overall justice” of the case (paras. 107-111 of the judgment); and (d) The broad merits test (paras. 112 and 113 of the judgment). 46. From these authorities and section 33 itself I derive the following assistance for my approach to the exercise of my discretion. I must consider the following: the reasons for delay from the expiry of the limitation period in each individual case and how promptly he brought the claim once he was aware of the possibility of bringing a claim; the effect that that delay has had on the fairness of a trial on liability and quantum: the extent to which, if at all, the cogency of the evidence has been adversely affected, as a result of that delay. In addition, I must consider the broad merits of the litigation and determine whether it is fair and just that any of the individual claim should go forward to full trial. 47. In this regard, Mr Allan submits that only post-limitation delay and prejudice attributable to it may be taken into account. In other words the fact, that by the date of knowledge in any particular case there already existed considerable or even impossible difficulties for the defendant to investigate the reasons for the conditions now the subject of the generic Particulars of Claim and whether it was or was not practicable to have avoided any of them, is immaterial. Mr Jay on the other hand submits that it is legitimate for me to take account of such difficulties that may have existed already at the time of the date of knowledge and to take account in addition such further prejudice that may have accrued to the defendant on top of those difficulties. The difference between these submissions is highlighted most when I come to consider the effect of the passage of time on the statutory defence of impracticability to allegations of breach of statutory duty. The inability to avail itself of such a defence must be a matter of simple prejudice which section 33 requires to have been attributable to the post limitation delay. Nevertheless, in my judgment, it is legitimate to take such prejudice and any other as is shown to exist into account in conjunction with the broad merits test and to give some consideration to the prospects of success whilst not actually deciding on those prospects as such. In other words, it is legitimate, in my view, to take account of such difficulties as may have pre-existed the date of knowledge in each case when considering the effect of further post limitation delay on the fairness of a trial.” “63 As I have said, the authorities all arrive at the same result but by different reasoning. I believe that it would be helpful to judges if some rational explanation for the authorities could be advanced. I have searched for some coherent explanation of Parliament's intention within the words of the section itself but did not for myself find one. However, having now read Sir Andrew Morritt C's judgment, I agree with his analysis of section 33(1)(b). I do not think one can infer much from the six factors in section 33(3) which, as Lord Diplock said, are “a curious hotchpotch”

. I agree with the Chancellor that the phrase “it would be equitable to allow the action to proceed” is at the heart of the section. Equitable here means “fair and just”. With that in mind, I think that the rationale underlying the provision must be found in a consideration of the background to limitation law as a whole. “64 It is a fundamental precept of the common law that a tortfeasor should compensate the victim of the tort. At common law, the victim, now the claimant, could sue the tortfeasor at any time, without limitation. It is also a fundamental precept that any person who is sued in respect of a tort should have a fair opportunity to defend himself. In 1623, a uniform limitation period of six years was introduced for all actions. The rationale behind the limit was to protect defendants from stale claims. It was not fair and just to impose liability on a defendant who had not had a proper opportunity to investigate the allegations against him and to assemble the evidence necessary to defend himself. There may have been other policy reasons for the provision, such as the desirability of finality but, as between the parties, the reason was to protect the defendant from a stale claim. “65 The effect of the limitation provision was not to extinguish the claimant's right of action, only to bar his remedy. The Act did not provide a defence on the merits; the defendant was ex hypothesi still a tortfeasor; but he could not be sued. The six-year period must have been Parliament's best estimate of when it would be unfair or unjust to the defendant to allow the claimant to enforce his right of action. “66 So far as personal injury actions were concerned, the limit remained at six years until the Limitation Act 1954, when it was reduced to three. I infer that Parliament must have thought that, in the context of that kind of action, unfairness to the defendant was likely to arise at an earlier date than in other actions. “67 Any limitation bar is arbitrary. It cannot always be fair and just to permit a claimant to proceed with his action if he commences it two years and 364 days after the relevant injury. Significant prejudice and unfairness might already have arisen, even long before the expiry of three years, for example by the death of an important witness. But the rule is that the claimant can proceed, notwithstanding any unfairness to the defendant. On the other hand, the expiry of the three-year term does not automatically create unfairness. Yet what was deemed fair on Tuesday is deemed unfair on Wednesday. There might be no unfairness to the defendant even if he is required to answer the claim, say, five years after the accident. The three-year limit is Parliament's best guess as to when prejudice can be expected to have arisen such that it is unfair to expose the defendant to the claim. The imposition of an arbitrary limit could only ever hope to do rough justice.” “In fairness and justice, [the defendant] only deserves to have that obligation removed if the passage of time has significantly diminished his opportunity to defend himself (on liability and/or quantum). So the making of a direction, which would restore the defendant's obligation to pay damages, is only prejudicial to him if his right to a fair opportunity to defend himself has been compromised.” “73 It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.” “The MOD is critical of the judge’s generic approach, submitting that the section 33 exercise must be tailored to the individual case. We agree that that is so, but see no reason why the judge was not entitled, at a preliminary stage, to consider issues that would arise in most if not all the lead cases. That is acceptable so long as each individual case is separately considered when the time comes.” “… the burden of proof under section 33 lies on the claimant (see Thompson v Brown

[1981] 1 WLR 744

at 752) recognising that the suggestion made in KR v Bryn Alyn Community Holdings Limited

[2003] QB 1441

that it is a heavy burden is no longer good law. The discretion to disapply section 11 is unfettered and the court’s duty is to do what is fair: see Horton v Sadler

[2007] 1 AC 307

and A v Hoare.” “Mr Groom submits that the Judge should not have placed weight on the failure of the Council to adduce evidence of prejudice because the burden of proof was on the respondent. I do not agree. While it is true that the ultimate burden is on a claimant to show that it would be equitable to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the defendant is, or is likely to be, less cogent because of the delay is on the defendant.” “…. the judge turned to subsection 3(e) - the extent to which the claimant acted promptly and reasonably once he had learned that he might have a cause of action. He acknowledged that this would usually depend on individual circumstances but then expressed the view that, because of the difficulties of obtaining funding, it was reasonable for any individual claimant to delay until a group action could be mounted. We are concerned about this generic approach to the reasons for delay. We think that it is important to consider reasons for delay individually and, as we will eventually show, the judge did not always deal with the reasons for delay when discussing individual cases; he must have been relying on his general observation. We doubt the validity of the proposition the judge accepted, first because in some cases, legal aid might well have been available at the material time. Also, the availability of a conditional fee agreement is not necessarily limited to group actions although we can see that a group action would be more potentially cost effective than a single action and therefore more attractive to a firm of solicitors contemplating taking it on. However, having expressed our reservations about the judge’s generic approach, we do not think that this issue will be crucial when we come to the individual cases.” “We think that the judge erred in saying that the need to avoid an apparent injustice was a weighty factor to take into account under section 33. We think that the judge must have had in mind the impression of injustice that would exist in the minds of the claimants if their claims are struck out and also possibly in the minds of readers of the rather unbalanced coverage that these issues have received in the press. In our view those are not proper considerations for section 33.” “It would be inappropriate for the court to allow an expensive and resource-consuming trial to take place if the prospects for the claimants’ success are slight. If the prospects of success are even reasonable, those resource considerations fade into relative insignificance.” “We summarise our conclusions in respect of the judge’s general approach to section 33 issues by saying that we think that there is sufficient concern about the propriety of the judge’s approach legitimately to render his conclusions open to challenge and in the circumstances we are firmly of the view that we will have to exercise our discretion afresh as and when it becomes necessary to consider section 33. That is first because we think that the judge has significantly and wrongly underestimated the claimants’ difficulties on causation and is therefore unlikely to have given appropriate weight to that when applying the broad merits test. We think also that he has demonstrated an incorrect willingness to give weight to the claimants’ contention that if their cases are not allowed to proceed, there will be a perceived injustice.” (a) Whilst there may be matters which are common to all or a majority of the Lead Claimants, in exercising its discretion under s. 33, the Court must examine each individual case on its own facts (para. 95 of the judgment); (b) The question of delay and any consequential prejudice suffered by the defendant (para. 101 of the judgment); (c) The extent to which the Court should have regard to the “overall justice” of the case (paras. 107-111 of the judgment); and (d) The broad merits test (paras. 112 and 113 of the judgment).

The Nature of the Claimants’ Case

[19]As Mr David Allan QC summarised it when opening the appeal the alleged breach of duty in this case, both in terms of the common law and breach of statutory duty, concerns conditions of work underground, conditions of roadways, conditions at the face and lack of adequate plant and equipment. The primary focus of the evidence before the judge and of the case presented to him was on the condition of the roadways which led to the working places in the mine. This was I suspect for two related reasons. Firstly, the condition of the roadways was governed by a statutory provision which imposed an obligation more onerous than a duty of care at common law. Secondly, and not just as a corollary of the first point, the Claimants may have regarded this as the area in which they were least vulnerable to the charge that the conditions of which they complained were simply an inherent and inevitable concomitant of underground mining in accordance with the contemporary state of the art. Indeed, in relation to this last point it is notable that no case in negligence was explicitly pleaded in the generic statement of case. Negligence came into the case, at any rate explicitly, only in response to requests for further information as to the nature of the allegations and in the Claimants’ reply.

[20]Thus s.34 of the Mines and Quarries Act 1954 provides:- “34(1) It shall be the duty of the manager of every mine to take, with respect to every length of road therein, being a length in which vehicles or conveyors run or which is used at the beginning or end of a shift by not less than ten persons for the purpose of walking to or from their working places in the mine, such steps as may be necessary to secure that the following provisions are complied with, namely, - . . . (b) Every such length of road (whether made before or after the commencement of this Act) shall be kept free from obstructions and the floor thereof shall be kept in good repair and in such condition that any persons or animals who use that length of road can tread it with safety and reasonable convenience.”

[21]Importantly, there is a statutory defence of impracticability. Section 157 provides:- “It shall be a defence in any legal proceedings to recover damages and in any prosecution, insofar as the proceedings or prosecution are or is based on an allegation of a contravention, in relation to a mine or quarry of – (a) a provision of this Act . . . to prove that it was impracticable to avoid or prevent the contravention.” to prove that it was impracticable to avoid or prevent the contravention.”

[22]However, as I have indicated the allegations made are wider in nature. Paragraph 6.1 of the generic statement of case reads:- “The Claimants contend that had the Defendant properly considered the potential cause or causes of knee injury in its workforce it would or should have identified the following as potentially relevant to the development of such injury:(i) kneeling for long periods, particularly in static positions;

(ii) kneeling and carrying out strenuous activities simultaneously;

(iii) crawling on the knees over long distances and over debris, equipment and uneven surfaces;

(iv) lifting, carrying heavy weights and carrying such weights under uneven/poorly lit surfaces;

(v) walking long distances over uneven/poorly lit surfaces with frequent trips, slips and stumbles.” This is followed by a list of steps that allegedly could and, in the later iterations should have been taken by the employers in order to reduce the risk of injury. Mr Allan helpfully summarised them when opening the appeal in this manner:- “To summarise the pleading, it is said that there are a number of the aspects of the mining work which place the greatest strain upon the men’s knees and which could have been eliminated, and that included work in stable holes which were at the ends of the faces, building of packs underground it is said could have been done mechanically, the lifting and carrying of heavy loads which could have been eliminated by the provision of lifting equipment. It is also said that the stresses, strains and effects of impacts to the knee could have been ameliorated by the provision of suitable and well-designed knee pads. It is said that the roadways, if properly maintained and lit, would have resulted in far fewer trips and stumbles. It is also said that the walkways at the face were covered with debris and obstructions that led to much greater strain and trauma to the knees.” (ii) kneeling and carrying out strenuous activities simultaneously; (iii) crawling on the knees over long distances and over debris, equipment and uneven surfaces; (iv) lifting, carrying heavy weights and carrying such weights under uneven/poorly lit surfaces; (v) walking long distances over uneven/poorly lit surfaces with frequent trips, slips and stumbles.”

[23]The litigation therefore concerns conditions of work over a forty year period. It is said that the employers knew of the risk of this type of chronic injury from the outset of the relevant period and that their failure to take steps to reduce the risk amounts to negligence or breach of statutory duty.

[24]The employers accept that they knew, from 1954 if not before, that face workers and roadway workers appeared to be at higher risk than the general population of developing osteoarthritis of the knee. However, they say that they were unaware of the extent to which that risk was in the case of those miners heightened as compared with the general population and unaware of the causes of the problem. They point out, rightly, that as recently as 1995 the Industrial Injuries Advisory Council was unable to identify underground mining work as an occupation in which there was a doubling of the risk of knee osteoarthritis. Doubling of the risk is apparently the yardstick adopted for prescription under the Industrial Industries Disablement Benefit legislation. Indeed, the Council at that stage went no further than to say that the then current evidence pointed strongly to an occupational hazard in jobs that entail frequent or prolonged kneeling or squatting.

[25]I would mention at this stage that when in 2008 the Council did identify a greater than doubled risk in miners, it did so because of the risk associated with occupational kneeling and squatting while undertaking heavy manual tasks such as lifting or shovelling, activities “traditionally undertaken by miners”. No mention was made in the Council’s report of any risk associated with walking, stumbling or tripping on or over uneven or obstructed surfaces.

[26]So the employers deny that any of the activities pleaded at paragraph 6.1 of the statement of case would have been foreseen during the relevant period by a reasonable employer in the mining industry as exposing employees to a significant risk of permanent or chronic knee injury. The employers specifically deny that it was at any time throughout the period reasonably foreseeable that minor traumata and or sprains would give rise to long-term sequelae in the form of permanent and/or chronic injury. The employers also assert that such activities as kneeling, crawling, lifting and walking long distances were not only unavoidable in mining work during the relevant period but that they were also everyday activities that would arise outside of mining employment. As such, say the employers, they presented as relatively innocuous tasks that were considered to be intrinsic to the heavy and demanding work of mining. They also point out, to my mind tellingly, that the relative degree to which any individual is exposed to such activities at work as opposed to his exposure arising from non-work related activities such as sport or other leisure activities would be a matter for individual evidence. The employers note that each preventative step which it is said they should have taken is aimed at a state of affairs that is alleged to have arisen in some, but not all, collieries at some unspecified occasion or occasions throughout the relevant period. They deny that they represented a typical or regular situation. Finally, the employers deny that it was reasonable or practicable to: a) avoid kneeling in an underground mine for a significant parts of the working shift: b) avoid heavy lifting or carrying, when the same would always be necessary to and from the coalface itself; c) avoid debris and/or obstructions arising from time to time within walkways at the face and/or within the roadways; d) ensure that employees were not exposed to minor traumata and/or sprains arising from the environmental and physical conditions in which they were working underground, which would be considered as being de minimis in nature.

The judge helpfully summarised the defence to the specific allegations as follows:

[27]- “97. The Defence deals with the specific allegations of precautions that could have been taken. The following are put in issue: the causative relevance of knee pads; the causative relevance of, and the inevitability of, debris accumulating on the face; what level of debris created a foreseeable and avoidable risk; whether the introduction of flushing shields was negligently behind the time in relation to any colliery; the avoidance by design of sharp edges of equipment on the face; the extent to which lighting on the face was dependent on the development of power supports and on being of low power, flameproof and sufficiently fluorescent; the extent to which such lighting was effective; the extent to which such lighting could be provided on the face at all; the causative relevance of lighting as alleged to be insufficient; whether the use of stable holes in general constituted a negligent system of working; whether it was impracticable to have avoided the use of stable holes until the development of new technologies replaced them; the causative relevance of their use in terms of risk to knees and of possible rotation of work (noting that these allegations appear to be limited to the period ending about 1970); similarly the causative relevance of manual packing; whether it was impracticable to have avoided manual packing until the development of new technologies; the extent to which lifting and carrying could be regarded as unsafe in terms of foreseeable injury to the knees; the causation as between lifting and carrying and injury to the knees. In this respect the Defence makes the point that research into lifting and carrying was more directed at the risk and avoidance of back injury. 98. The Defence in respect of walking surfaces is that: the nature of walking surfaces and the existence of obstructions vary as between each roadway and at any point in time; therefore, conditions need to be considered locally; it was impracticable to keep walking surfaces clear and even at all times; the safety of such surfaces was monitored and enforced each shift by the deputies; dinting addressed geological conditions. It puts in issue: the extent to which any individual tripped or stumbled as a result of breach of common law or statutory duty; the causative effect of such strips and stumbles; the steps that were necessary to avoid the presence of obstructions. The Defence further puts in issue the causative relevance of training, organisation and medical surveillance and relies generally in response to all allegations of breach of statutory duty, its statutory defence of impracticability.”

[28]The judge set out a masterly analysis of the working conditions which obtained at the time and explained the features of the conditions and of the manner of working which has given rise to the allegations made in this litigation. I reproduce it here:- “56. In order to consider both the working conditions, which are now said to have been responsible in part or in whole for the development of knee osteoarthritis (for the purposes of section 14 of the Act), and the likely cogency of the evidence to be relied on at trial (for the purposes of section 33 of the Act), I have extracted the following from the evidence given to me by the 8 lead claimants and which I have supplemented where necessary from my own knowledge recalled largely from practice at the Bar and which I acknowledge may not be perfect.57. The claims cover an extended period of coal mining history and methods. It is important to appreciate that over the period with which these claims are concerned, which broadly coincides with the coming into force in 1956 of the Mines and Quarries Act 1954 (“MQA”) and ends with the privatisation of the coal industry in April 1994, coal mining developed considerably, both in terms of efficiency of production and of safety. Two principal methods have been considered: pillar and stall, by which the coal was extracted leaving large ‘pillars’ of coal and a network of roadways between them; longwall face extraction, by which a length of coal was extracted leaving the strata above the coal to collapse behind the face as it advanced to lessen the forces on the newly exposed strata. In both methods of mining the roof and sides for as long as necessary were originally supported by timber (props, bars and chocks built with blocks). Each face needed a supply road or ‘gate’ (some originally had two) and a loader or main road or main gate through which the coal was transported to the Pit Bottom, if there was a shaft, or to a drift, and by either means up to the surface. Originally, coal would be loaded, that is shovelled, onto a belt conveyor to a point where it was transferred to drams, trams or tubs, which were then hauled outbye on rail tracks originally by ponies and later by mechanical wire rope haulage systems and later still by locomotives. In the other direction materials and equipment were brought inbye to the face on similar vehicles and manhandled into position. Sometimes, when the face was not producing, coal supplies were sent inbye by reversing the main or loader gate conveyor. The coal face was undercut by a cutter machine (not unlike a modern chain saw, only substantially larger) with chain and picks at right angles into the coal, hauling itself along wire rope. The coal then had to be brought down and loaded onto the conveyor. Each faceworker operated in a stint, that is his own area over several yards of the face for which he was responsible. In it he would take down and reset the props and bars to support the newly exposed face. The height of the face would depend on the thickness of the coal seam. Typically, most of the faces described by the lead claimants were in the region of 3 to 4 feet in height, although they could be lower or higher. If they were much lower, some strata would be extracted in addition to coal. It is common ground that the method of mining necessarily required men to work often for long periods on their knees, having to crawl and to twist in order to shovel coal and debris.

58. It should be interposed here that some seams in the various coal fields would be substantially higher and would permit men to work standing. None of the lead claimants appears to have worked for any significant length of time in such conditions. It is not, known, therefore, if there are claimants within the Group who did and who nevertheless developed knee osteoarthritis. However, it is clear than mineworkers did not simply have to work in narrow seams to develop knee osteoarthritis, as the uncontroversial medical evidence clarifies.

59. As the face advanced, so the roadways needed to be advanced to keep up. In order to create greater height the strata above the coal was ‘ripped’ down either square to accommodate the larger roof supports or later to the shape of arch type girder supports which would be lagged with planks of timber or corrugated steel. The point where the height came down to the face height was known as the ripping lip, which itself had to be supported. In order to lessen the forces on the coal face the strata above and behind the face as it advanced was allowed to fall into what was called the ‘waste’, ‘goaf’ or ‘gob’, so that the newly exposed roof would be supported. Then, as the face advanced and those supports were removed and reset, the roof would be allowed to collapse. In order to support the sides of the roadways, packs were built of stone (much like dry stone walling) and filled with debris for some distance from the road into the face. By the time with which these claims are concerned, the prop free front had been developed, which enabled a clear run for coal cutting machinery

60. In the early days, an area of coal was cut out at either end of the face to enable the cutting machine to start its cut along the face. That was the stable hole, so named from the days when ponies were used.

61. In some instances the coal face retreated. The system was much the same, only the roads or gates were driven first and the coal face worked back or retreated in the direction of the pit bottom.

62. There were several variations on all these themes as mechanical equipment was developed. Hydraulic props or posts replaced timber, steel bars replaced the wooden bars. Armoured face conveyors were introduced consisting of steel sections in which ran two chains with flight bars (much like a horizontal steel rope ladder) and which dragged the coal to the loader gate and onto the ordinary conveyor. Various machines were developed for cutting down the coal: trepanners and shearers, for example, which dragged themselves along the armoured conveyor.

63. A considerable advance was the hydraulic chock. These are integral supports consisting of a steel canopy with hydraulic legs, usually a block of 4 legs at the back and another two at the front. In this way a travelling track was created through the hydraulic chocks along the face. Each chock had a horizontal ram for pushing over the armoured conveyor towards the face and eventually acting in reverse for pulling itself forward on its skids. They developed to be fitted with ‘flushing’ shields to the rear to stop waste debris from coming into the track inside the chocks. One complaint in this litigation is that such shields were not developed early enough.

64. Generally, the faceworkers were interchangeable in their jobs, but there would be a shearer driver followed by men pushing over the conveyor into the track made by the machine cutting the face down and others pulling the chocks forward and resetting them to the roof. Each man, therefore, would traverse the length of the face on each cut. Some complaint is made that it would have been better practice to retain a variation on the old stint system, so that men would not have had to traverse the whole face, but only that part of it for which they were responsible.

65. Meanwhile, at the ends of the face, the stable holes were replaced by advanced headings. Mineral from these was loaded onto the conveyor system by various mechanical means.

66. A coal face would be developed in the first place by driving the roadways to the point where the coal face was to start its advance (or retreat). Development workers were essentially tunnellers responsible for clearing the mineral that had been bored and fired down and setting the roadway supports.

67. Each coal face and heading had to be supplied with water for dust suppression, hydraulics for the supports, and power for the machines. This would require heavy steel equipment at each end of the face which would have to be traversed.

68. The roadways, once established would carry a conveyor to take the coal out, a rail track for transporting materials to the face, ultimately a track for transporting coal in vehicles, such as drams, tubs and later minecars. There were many variations as to what would be running along a roadway at any given point. Motive power changed from pony to wire rope haulage systems and to locomotives.

69. The pressures that resulted from the coal extraction resulted in the road supports being squeezed and distorted and the floor tending to come upwards (floor heave or lift) resulting in restriction of height and width and unevenness of the floor. Such conditions required repair by further ripping (sometimes known as back ripping) and dinting of the floor, digging into the floor to create a flat surface again, to regain the necessary height and width. Complaint is made in this litigation that such conditions resulted in such poor travelling and working conditions that men were exposed to stumbling and other minor trauma. Because the only remedy for such conditions apart from abandoning the district was to rip and to ‘dint’ the floor, an important issue concerns how quickly such remedial work was done and how effective it was given the geological conditions before further remedial work became necessary.

70. In terms of travel, men rode in adapted vehicles variously termed drays or paddies, but it is clear that such vehicles could not take them all the way to their places of work, so that the rest of the distance would have to be traversed on foot. Later conveyors were specially adapted to enable men to ride in and out, mounting and alighting at special platforms. Complaint is made that for various reasons men had to walk excessive distances to reach their places of work and that when there had to carry heavy loads over excessive distances. However, it was accepted practice that heavy steel bars, girders and armoured conveyor sections, for example, had to be manhandled at least for some distance as an inevitable part of what was recognised to be heavy and demanding manual work. Mr Lewis recognised the importance of having strong upper body strength for just this reason, expressing at the same time his surprise that heavy lifting should have put strain on the knees.

71. Apart from the Pit Bottom areas and some main roadways and junctions, lighting was generally by individual’s cap lamp. Complaint is made that static lighting should have been provided to a greater extent where cap lamps were the generally recognised form of lighting over the years.

72. The orthopaedic experts have very largely agreed on the likely causation of knee osteoarthritis in mineworkers such as exemplified by the lead claimants and as related to the working conditions discussed. Whilst there are some issues of causation raised by the experts, notably in respect of constitutional disposition and sporting injuries in some cases, I do not regard these likely issues as presenting serious post date of knowledge prejudice to either side where the resolution of such issues depends largely on the interpretation of the medical records. There will be some individual cases, such as, for example, has been highlighted in the case of the claimant, Davison, where an individual’s recollection and evidence holds the key as to the significance of non mining trauma, such as, for example, sporting injuries.

73. With what then is hopefully a general picture of the ordinary working conditions in mind that are relevant to the development of knee osteoarthritis, I turn to the way in which the claimants have stated their case on breach of duty.”

[29]The judge then proceeded to set out in rather greater detail than I have done the steps which it is alleged that the employers should have but have failed to take in order to reduce the risk of repeated minor trauma. That part of his judgment concludes with paragraphs 97 and 98 which I have set out at paragraph 27 above above. The judge also referred to the obvious relevance of contributory negligence, pointing out that one explanation for a trip or stumble could be lack of care on the part of the mine worker. I have to say that for my part I see contributory negligence as raising in this litigation a very real issue which is simply incapable of a fair trial. However Mr Allan’s answer to that is that this case is not about individual trips and stumbles but working conditions as they existed day after day, year after year, so I must look at the matter in the round and in the wider context.

[30]The medical evidence before the judge was uncontroversial. It established a clear causal relationship between the individual descriptions of walking and working conditions underground given in evidence by the lead Claimants and the development of knee osteoarthritis, which is a degenerative condition of joints with inflammation and damage to the joint surface. I have already referred to those factors above and to the circumstance, noted by the judge himself at paragraph 108 of his judgment, that the sustaining of repeated minor knocks could and does equally occur in playing regular contact sport.

[31]The judge then turned to the effect of the delay on the cogency of the evidence. His conclusions here are key to his whole approach to the exercise of his statutory discretion and I set out the relevant passage from his judgment in full:- “111. There needs to be some analysis of what the issues would be at trial and how they can be addressed. Many of these issues, in my view, are generic, but I shall attempt to distil from the evidence the evidence that is likely to be considered in respect of each claimant.112. Having heard each of the lead claimants recall the conditions in which they walked and worked, in conjunction with expert medical evidence that was made available for the limitation hearing, it may well be that the judge hearing the issue of liability would have little difficulty in finding where each claimant worked at any given time, where he had to walk in order to reach his place of work, what the work would have involved with particular reference to the lifting and carrying of heavy materials, how far each coal face or development would have reached at any given time, how much work in the ordinary course of things he would have to crawl and work on his knees. That is because there is a wealth of documentary evidence, for example in the form of plans and dust records, which can provide such information.

113. There would be little difficulty in finding a causal relationship between likely conditions of walking or crawling, heavy lifting and working in confined conditions on the knees on the one hand and on the other the insidious development of osteoarthritis, subject, of course, to possible further examination of the expert medical evidence. In this regard, I anticipate serious difficulty in determining what would have been the likely effect of unavoidable conditions on the development of osteoarthritis. Whilst to a certain extent the experts can give their opinions about this, nevertheless, they will almost certainly say that it depends on the factual evidence. This is likely to create significant difficulty in any attempt to apportion between the unavoidable and the avoidable. This forms part of the general consideration of the broad merits, but also is potentially a factual area where cogency is likely to have been adversely affected by limitation delay.

114. A harder question, in my view, might well be whether the trips, stumbles and knocks happened, as described in evidence to me, on an almost daily basis or from time to time depending on the severity of the conditions. In this respect it is easy to assert in general terms, but harder to refute. However, this is perhaps an example of a difficulty that would always have beset the allegations in the present litigation even if it had been brought within the respective limitation periods.

115. Perhaps the hardest question of all would be to determine which conditions were avoidable and how they might have been avoided at the time.

116. There are many photographs which show adverse geological conditions and which illustrate some of the problems that were encountered during the mining of coal. However many photographs there are, each is literally and necessarily a snapshot. I note that many have come from mining archives and museums. What none of the photographs can show is whether those conditions were avoidable or unavoidable. For example, a photograph of a roadway restricted in height and width with crushed roof and side supports cannot explain whether or not this occurred because inadequate supports were set; whether or not the roof pressure or floor heave was greater than usual; what steps could have been, or were in fact, taken to repair the situation; how quickly were such steps taken. From what I can understand, it is unlikely in the absence of a specific investigation of an incident related to restriction in height and width of that roadway, that there will or ever were, even by the dates of knowledge, any answers to be had to those questions except in the most general of terms.

117. I shall assume for these purposes that expert mining engineering evidence could be called as to the likely causes of such restriction in height and width and as to what steps could have been taken to repair the situation and within what timescale, at least on a general and hypothetical basis.

118. I am prepared to assume, based on the evidence rehearsed before me by the 8 lead claimants, that, with the assistance of mining engineering evidence and of such factual recollections as may still be available, a case could be presented as to the likely circumstances when roadway supports for one reason or another in general terms failed; as to the likelihood of the resulting restriction in height and width not being repaired as quickly as it might have been; as to the likelihood of walking conditions remaining particularly bad.

119. The difficulty comes when the evidence of the lead claimants is properly analysed in distinguishing those conditions which might be shown to have been avoidable in the sense of not being addressed regularly and those conditions which were not attributable to any particular geological problem, but which were inevitable in underground roadways.

120. From the evidence of the claimants themselves it is clear that their recollection today is that tripping, slipping and stumbling was an inevitable part of their day’s travelling to work and working itself; that they recognise the 3 possible categories of avoidable, unavoidable, and simple failure of care on the part of the individual. 120. In some cases, the workmen’s inspector’s reports (made under section 123 MQA “The section 123 reports”) can, if available, give an impression of what matters of safety were troubling those inspectors at the time. Similarly the minutes of consultative safety committees, on which unions and management were represented, could, if available, give a similar impression. What would always be necessary, however, in order to complete the picture would be some evidence as to what was done in response to particular concerns that were raised. Plainly the earlier such evidence is able to address such concerns the easier it is to determine whether the particular matters raised were avoidable or unavoidable. Conversely, the longer the time that elapses, so the greater is the difficulty in addressing such matters, eventually to the point of impossibility.”

[32]The judge’s broad conclusion was I think that insofar as the detailed allegations for the most part depend upon an examination of whether at any given time there was a failure to take reasonable precautions to avoid the risks associated with repeated minor trauma, so the resolution of that issue will be likely to depend to a large extent upon recalled fact. There are of course discrete issues where that is not so, for example insofar as it is alleged that knee pads were of poor design. However, as Miss Leigh-Ann Mulcahy QC for the Respondent pithily observed, this case is not about knee pads. Nor realistically is it about a root and branch attack upon working methods and practices. I do not for my part regard as realistic generalised allegations that improvements brought about by mechanisation should have been achieved at some unspecified earlier time than in fact they were. The realistic allegations in my view concern the extent to which, even taking into account the contemporary state of the art, the employers failed to reduce avoidable risk. That is reflected in the emphasis at trial upon the conditions in the roadways.

[33]In that regard the judged noted, at paragraph 167 of his judgment, that it might be possible to adduce evidence that over a particular period of time a particular roadway was constantly in such a condition that persons could not tread it with reasonable convenience. But as he also observed, adducing evidence in order to refute such an allegation, or in order to demonstrate that such conditions had occurred or endured without actionable fault, involves demonstrating why the roadway was in that condition and whether it was or was not practicable to take steps to remedy the situation either earlier than was in fact done or at all.

[34]The judge was critical of the Respondent for not having done quite enough to bring before the court senior officials from the collieries to state their present recollection of such factors. He considered that, whether consciously or unconsciously, the Respondent had gambled upon being able to rely upon the inference of prejudice. The judge did however accept that it would only be a handful of senior managers who could be found to give evidence as to how the various and complex problems in relation to the safety and reasonable convenience of the underground workforce was tackled over the years. At paragraph 175 he concluded:- “However, the more I have heard, the more convinced I have become that it would be a tall order to expect anyone to recall sufficient detail to explain whether conditions were avoidable at any given time, or, if they were, what was done to remedy them and how quickly it was done once the conditions emerged, and what features impeded the remedying of conditions.” He addressed Mr Allan’s suggestion that a large part of the enquiry would be a matter for expert evidence. At paragraph 177 he said this:- “Without reasonably comprehensive factual evidence, expert engineers can only do so much to address the duration of conditions described or as to what steps were in fact taken or should have been to remedy the various situations that affected those walking and working conditions. I cannot see expert mining engineers being able to do much more than give generalised opinions as to whether more could and should have been done to address the difficult conditions that were plainly part of underground coal mining over the various periods under consideration in this litigation.”

[35]Perhaps recognising the difficulty at this remove in time in distinguishing between conditions which were avoidable and those which were not, Mr Allan submitted to the judge that it should be possible for the court to draw its own conclusions as to the likely apportionment as between unavoidable and avoidable minor knocks and stresses. The judge however considered that the problems thrown up by this litigation were entirely different from those presented in the earlier industrial disease cases concerned with, for example, noise, dust and machine vibration. In those cases, broadly speaking, there was a single mechanism responsible for the development of the disease, excessive noise, excessive dust, and machine vibration at or above the action level of exposure. In each case there was a watershed level of exposure above which it was known there existed a risk of disease development and in respect of which there were available precautions which could, consistently with the contemporary state of the art, have reduced the exposure to a safe level. Here by contrast “repeated minor trauma to the knee could be caused by a number of various contributory factors such as stumbling, banging the knee, crawling, working and twisting whilst kneeling and the stress conducted to the knees through lifting and carrying heavy weights” – judgment paragraph 54. As the judge observed at paragraph 194, the enquiry into which conditions were avoidable and which were not has to cover each of those facets. He continued:- “In relation to each, assuming that a Claimant can show that on the face of it the conditions which he faced, more likely than not, were avoidable, then the Defendant has to demonstrate why, more likely than not, they were probably unavoidable. However, that exercise has to be carried out in respect of each of the various aspects of working underground which could have contributed to the knee osteoarthritis.” In short, the judge saw reliance upon a broad apportionment approach as an unavailable and in any event unprincipled solution to the obvious effect of the delay on the cogency of the evidence required both to support the claim but perhaps more pertinently to make good any attempt to defend it.

[36]Against this background the judge considered the reasons for the delay. The judge regarded as a poor reason for taking no action that the Claimants were dependent upon their union and upon other potential funders – paragraph 40. In the exercise of the statutory discretion he regarded no special privilege as attaching to a potential claimant by reason of union membership. However he did not consider this to be a decisive factor, just as the Court of Appeal had not regarded the reasons for the delay as decisive in the Atomic Veterans litigation. As the Court of Appeal had stressed should be done, he considered the reasons for the delay individually in relation to each Claimant. The judge did not pay mere lip service to this injunction. He carefully noted the features which were individual to each Claimant, such as for example the circumstance that for a period in the early 2000s Mr Lewis gave no thought to his own disability because of overriding concern for his wife’s health. The delay was however in each case so long that there was for the most part of it no good reason unless the individual Claimant’s reliance upon his union for information and guidance supplied it. The judge came to the conclusion that in each case the delay in the institution of proceedings beyond the period prescribed had substantially diminished the cogency of the evidence to an extent which precluded a fair trial. Accordingly in each case the judge declined to exercise his discretion to disapply s.11 of the Act.

The Issues on the Appeal

[37]The broad thrust of the appeal is that the judge failed properly or fully to appreciate the nature of the litigation and that in consequence he reached a wrong assessment as to the impact of the delay. The judge was, submitted Mr Allan, wrong to focus on individual incidents or occasions when miners had banged their knees and in doing so he failed to appreciate the importance of knee osteoarthritis being a chronic condition caused by years of similar working conditions. Subject to that overriding consideration Mr Allan advanced three main grounds of appeal. First, that the judge wrongly applied what he termed the broad merits test. Second, that the judge’s assessment of the impact of delay on the cogency of the evidence was clearly wrong. Third, that the judge’s analysis of the reasons for the delay was at fault and his treatment of those reasons, in particular in failing to give weight for those reasons for delay, was again clearly wrong.

Broad Merits

[38]At paragraph 42 of his judgment the judge cited the following passage from paragraph 112 of the judgment of the Court of Appeal in the Atomic Veterans litigation to the following effect:- “It would be inappropriate for the court to allow an expensive and resource-consuming trial to take place if the prospects for the claimants’ success are slight. If the prospects of success are even reasonable, those resource considerations fade into relative insignificance.” Mr Allan submitted that the judge identified the right test but then failed to apply it. He also submitted that the judge had wrongly concluded that the Claimants had no reasonable prospect of success.

[39]Under s.33 of the Act the court must take into account all the circumstances of the case. The strength or weakness of a claim comes into consideration in this context because if it is shown that the claim is weak there may be significant and relevant prejudice to the defendant in disapplying the limitation provisions and exposing him to a long and costly trial – see per Purchas LJ in Nash v Eli Lilly & Co

[1993] 1 WLR 702

at 804. Similarly, it is more prejudicial to a claimant to be deprived of a cause of action when it is almost bound to succeed than one that looks highly speculative – see per Stuart Smith LJ in Dale v British Coal Corporation [1992] PIQR P373 at P380-381. But as Stuart Smith LJ went on to emphasise, where the limitation issue is being tried and determined before the merits of a claim, the court should not attempt to determine the merits but should rather take an overall view of the prospects of success.

[40]When the Atomic Veterans litigation reached the Supreme Court it was held that the difficulties which confronted the Appellants in establishing that their injuries were caused by the tests could be determinative against exercise of the power under s.33. That however was against the background of a concession by their counsel in the Supreme Court that the appellants lacked evidence with which to establish a credible case that their injuries were caused by the tests.

[41]In my view this first ground of appeal is misconceived in that the judge did not determine that the claim had no reasonable prospect of success. On the contrary, the judge recognised at paragraph 167 of his judgment that the claimants’ description of the conditions of identified roadways over which they were obliged to walk for identifiable periods of their service underground might be sufficient of itself to establish a prima facie case of breach of statutory duty. The judge rightly observed that proof of a breach in this regard would only be the beginning of the establishment of a cause of action as the Claimants would need to establish its causative potency having regard to the many other unavoidable non-actionable potential causes of trauma to the knee. He also however rightly recognised that proof of the existence of such conditions would cast upon the employers an evidential burden of rebuttal in terms of impracticability. Indeed as I see it the relative ease of establishing a prima facie case of breach of statutory duty of the sort upon which the Claimants focused at the trial of the preliminary issues throws into very stark relief the grave prejudice imposed upon the employers if they are required now to attempt to rebut it by cogent evidence. Far from telling in the Claimants’ favour the potential ease with which a prima facie case can be set up in fact tells against them because of the far greater burden faced by the employers in seeking to make good the available defence.

[42]So far as concerns the wider allegations of negligence, the judge did no more in my view than to advert to the difficulties which the Claimants would face in making good their case. He did not conclude that such claims had no reasonable prospect of success. Rather, he identified the issues which were likely to arise at any substantive trial and the evidence that would be required both to attempt to prove the case and to attempt to defend the claim. Both were equally important in assessing the broad merits of the litigation. What the judge was concerned to identify, rightly in my view, was the extent to which the enquiry would be hampered by the diminished cogency of the evidence available consequent upon the long delay in bringing the claims. A good example of the judge’s approach is afforded by paragraph 168 of his judgment, but he adopted it consistently across the board. The judge concluded that had the claims been brought within time the task would have been difficult enough but the further passage of time inevitably rendered the available evidence less cogent to the point of it being impossible for the issues now to be fairly tried.

[43]In my judgment the judge’s approach to the assessment of the broad merits of the litigation was careful, conscientious and impeccable. Far from being persuaded that the judge reached a conclusion to which no reasonable judge could have come, I consider that it would have been surprising had the judge come to any other conclusion.

The Impact of Delay on the Cogency of the Evidence

[44]Mr Allan’s argument on this point began with the submission that the Defendant had not done enough to discharge the evidential burden of showing that the evidence that it could now adduce would be, or is likely to be, less cogent because of the delay. He also submitted under this rubric that, in the absence of expert evidence, the judge was wrong to form the view he did as to the difficulty in now establishing what conditions were avoidable and what were unavoidable. In that latter regard Mr Allan accepted that he could only make good that point if he could satisfy us that the judge was wrong to have concluded, at paragraph 177 of his judgment, that in the light of the nature of the factual evidence adduced by the Claimants the expert evidence was going to be at too high a level of generality to be of any relevance or real assistance. The real thrust of Mr Allan’s submission on this part of the appeal was perhaps that where one has a claim based on working conditions over many years, it is only ever possible to reach broad general conclusions, and that this is illustrated by the previous industrial disease cases where judges have grappled with the problem and simply carried out an apportionment exercise as best they could. Thus in relation to noise, Mustill J in determining the test case of Thompson v Smith Ship Repairers

[1984] 1QB 405

, having found that by 1963 the employers had sufficient knowledge of the availability of reasonable precautions against the risk of deafness, and having concluded that by that date the lead claimants already had damaged hearing, had to determine in respect of the breaches post-1963 what was the effect of that guilty exposure on hearing and what was the effect of the pre-1963 exposure, the innocent exposure? Likewise in relation to exposure to mine dust, Griffiths and Others v British Coal, Turner J had to consider the myriad of circumstances in which mine dust was created underground. He had to consider the problems of ascertaining what level of dust that was. He had to consider the various methods of dust suppression, and he had to come to a conclusion as to what proportion of that dust was exposure in breach of duty and what proportion was innocent exposure that would have occurred even if all the dust suppression measures had been taken. The position was, he said, the same in relation to machine tool vibration, where there had been two cases, Allan v British Rail Engineering, concerned with vibration exposure in railway workshops and Armstrong and Others v British Coal, which was again exposure of men employed in mining to vibrating tools. In both those cases, submitted Mr Allan, the trial judge had had to grapple with the problem of what proportion of the exposure to vibration was guilty exposure and what was innocent exposure. In fact in the latter case the point about simultaneous innocent and guilty exposure was not taken until the case reached this court, and it was then said to be too late to raise it, whereas in Allan v British Rail Engineering Smith J at first instance grappled with the issue of what proportion of the vibration was in breach of duty and what proportion would have been inevitable had the defendant complied with their duties, and then had to determine what effect that had on the injuries suffered by the claimants. Finally, Mr Allan relied upon what was said in this court in Allan v British Rail Engineering

[2001] EWCA Civ 242

in the appeal on quantum from the decision of Smith J. At paragraph 20(4) the court, comprising Schiemann, May and Latham LJJ said this:- “The court must do the best it can on the evidence to make the apportionment and should not be astute to deny the claimant relief on the basis that he cannot establish with demonstrable accuracy precisely what proportion of his injury is attributable to the defendant’s tortious conduct.” I observe however that the court proffered this as a proposition relevant to quantifying damages, not to the establishment of liability – see the opening sentence of paragraph 20. Nonetheless, the submission made was that the fact that apportioning between the consequences of avoidable and unavoidable trauma is going to be difficult is not an objection to attempting the exercise, and that since the claims date back to 1954 and the dates of knowledge are all in the 1980s or 1990s, the delay since then has not materially contributed to the nature of the difficulty.

[45]I consider that Miss Mulcahy was right to submit that there is a clear distinction between the industrial disease cases which concerned continuous exposure to a dangerous state of affairs or toxic substance and the present case. This case is not concerned with exposure to a single disease-inducing agent or condition. Whilst in a case such as Griffiths there were many sources of dust, exposure to dust was in itself damaging and the problem was to establish what proportion of the exposure was innocent or unavoidable in a sense that it would have occurred if all available dust suppression measures had been taken, and what proportion of the exposure was avoidable and tortious. Here there are multiple, entirely separate facets of mining all of which give rise to repeated minor trauma or to the risk of repeated minor trauma to the knee and the difficulty is in establishing which were tortious and which were not. In that regard the judge was I think right to regard the present case as more akin to an accident case or perhaps to a case concerned with a whole series of accidents than to one concerned with continuous exposure to a single toxic agent or substance.

[46]Furthermore, whilst it is difficult to generalise, Miss Mulcahy was I think right to submit that the earlier industrial disease cases were in large, albeit not total, measure concerned with static, controllable conditions akin to those in a factory. The Griffiths case was obviously not such a case. But in the cases concerned with factory or similar conditions, such as Thompson v Smith Ship Repairers, or Knox v Cammell Laird Shipbuilders [1990] the issues were far less dependent upon primary factual evidence. In each case there were two main issues. First, what did the employer know of the risks or what should it have known of the risks had it properly investigated the position. That issue tended to be dependent upon the literature and on what was known at the time from a scientific perspective about the risks of a particular exposure to a particular agent. The second issue concerned when and in what form suitable means of eliminating or reducing the risk had become available, and that tended to be a matter of expert evidence. As Miss Mulcahy pointed out, in both Knox and Griffiths there had to be disentangled the respective contributions to the men’s respiratory condition made by, in the one case, welding fumes and in the second case, coal dust, and, in both cases, smoking. But these were matters for expert medical evidence. As it is, both Simon Brown J in Knox and Turner J in Griffiths baulked at the difficulty of their task, Simon Brown J admitting that his assessments amounted to “really no more than informed guesses”. I agree that that needs to be borne in mind when considering the, as I think, infinitely more complex exercise which it is envisaged should take place in this case. In Knox Simon Brown J found that the great majority of the most damaging fume exposure could and therefore should have been avoided. He also said this:- “I have reached the clearest possible conclusion that the defendants here breached their statutory and common law duties to these plaintiffs at least since 1951 – and, because of the 1939 Act defence the position before then is in any event immaterial. This to my mind is no borderline case. There is no question of evidence here being lost to the defendants such as might possibly have tipped the balance in their favour. This is true in regard to the date of knowledge issue, true as to the actual system of work prevailing, true as to the circumstances encountered, true too in regard to the “defence” of non-practicability.”

[47]Section 34 of the Mines and Quarries Act and its concomitant defence of impracticability fall to be examined in the context of a dynamic environment, subject to geological forces putting pressure on the roadways and causing in particular floor heave and crushing of the sides of the roadways. Notwithstanding Mr Allan’s protestation that this case is not about individual incidents of tripping, I do not see how the question whether the employers were at any given time in respect of any given roadway in breach of the duty cast upon them can be resolved other than by a detailed examination of the circumstances in which a roadway became obstructed and the opportunity and resources available to the employers to remedy the situation.

[48]For all these reasons the judge was in my view right to draw a distinction between this and previous cases. The present case represents on any view a more ambitious exercise, which is I have no real doubt the reason why, in relation to conditions underground, the earlier exercises concerned with noise, dust and vibration were concentrated on first, with group litigation about osteoarthritis of the knee only contemplated when those earlier exercises had been completed. I reject the criticism of the judge that he focused too much on the need to distinguish the avoidable from the unavoidable. That distinction is at the heart of the case.

[49]As to the judge’s assessment of the impact of the delay on cogency, Mr Allan accepted that in looking at all of the circumstances of the case the judge was entitled to look at the totality of the delay, including therefore the additional three years elapsed between date of knowledge and expiry of the limitation period – see Donovan v Gwentoys Ltd

[1990] 1 WLR 472

in the House of Lords. In looking at all the circumstances of the case, one must of course look at the impact of the delay on what were already claims concerning events and conditions which obtained many years before even the applicable dates of knowledge. It is permissible to infer additional prejudice as flowing from additional delay over and above “non-culpable” delay which has already rendered a fair trial difficult of achievement – see Roebuck v Mungovin

[1994] AC 224

at page 234 per Lord Browne Wilkinson. The judge did not however simply infer that post-limitation period delay had caused additional prejudice. He confronted that issue head on and recorded his positive conclusion that post-limitation period delay had in this case had a serious impact upon the cogency of the evidence – see his discussion at paragraphs 169-170 and 192-193.

[50]The judge found evidence of substantial prejudice to the Defendant in three respects. Firstly, he found the documentary evidence now available, in the shape of s.123 Workmen’s Inspectors’ Reports and consultative committee reports, could only go so far to create the kind of picture necessary to show a case of repeated failures amounting to negligence and breach of statutory duty. The documentation which has survived tends to concentrate upon major accidents. Secondly, he found that there was now a dearth of available and willing witnesses at the managerial level, the level at which would have lain the responsibility for arranging repairs to the roadways and so on. In that regard the Claimants were critical of evidence given by a Mr Dray, yet they did not take the opportunity to cross-examine him. The relevant managers were of course likely to have been older than the workforce, so it is unsurprising that those available to speak in considered detail as to their role in the 1970s and 1980s, let alone the earlier period, are thin on the ground. Thirdly the judge was of course mindful of the impact of delay on recollection. The level of generality of the evidence given by the lead Claimants tended to prove the point that recollection as to the cause of deteriorating conditions and as to what was or could have been done about them and within what timescale was severely impaired and imperfect. The evidence of Mr Lewis and Mr Hughes was particularly probative in this regard in that they were deputies who were responsible for carrying out the s.123 inspections. Similarly probative was the evidence of Mr Hathaway, a union official with a keen interest in safety issues.

[51]In my judgment the judge gave careful and principled consideration to the impact of delay upon the cogency of evidence bearing upon the issues in the litigation. I can detect no error in his approach. He reached a conclusion on the issue which seems to me not simply well within the ambit of reasonable decision making but self-evidently correct.

The Reasons for the Delay

[52]The essential complaint here is that the judge failed to give appropriate weight to the circumstance that the principal reason for the delay in every case was that the Claimants did not realise that they could make a claim in respect of the painful and debilitating condition which they clearly attributed to their working conditions underground. The judge cited at paragraph 31 of his judgment a passage from the judgement of Smith LJ in Cain v Francis

[2009] QB 754

at paragraph 73 reminding judges exercising the s.33 discretion that the delay may have arisen for so excusable a reason that, looking at the matter in the round, on balance it is fair and just that the action should proceed. In effect, Mr Allan complained that the judge was wrong not to regard as entirely excusable the circumstance that the Claimants waited to be advised by their unions. Mr Allan also submitted that insofar as one comes to the view that the unions could have done more or acted earlier, “one should not visit on the individual [claimants] the shortcomings of their unions”. Hallett LJ in the course of the argument enquired whether this was not “having one’s cake and eating it”. Reliance on the unions was said, understandably, to be reasonable but blame was not to be attributed to the Claimants if in all the circumstances the union had failed to act with reasonable expedition. I am afraid that I found entirely unconvincing Mr Allan’s attempt to persuade My Lady that her observation was misplaced.

[53]The court is enjoined under s.33(f) to have regard to the steps, if any, taken by the Claimant to obtain medical, legal or other expert advice and the nature of any such advice he may have received. All of these Claimants as at their date of knowledge entertained a firm belief that their knee conditions were as a result of their work as miners. The judge concluded that it was not reasonable for the Claimants to do nothing to investigate their claims – neither seeking medical advice on the causes of osteoarthritis nor seeking legal advice as to the responsibility of their employers for the conditions in which they had worked. There was, as Miss Mulcahy submitted, a wholesale failure on the part of all the Claimants to initiate an enquiry, to go to see a solicitor, to lobby their unions or to seek expert advice as to what precisely were the work-related causes of their osteoarthritis and whether they were actionable. There was an exception in the case of Mr Hughes, on whose behalf a letter of claim was written by solicitors in June 1992. It is right to say that that letter made mention in particular of wet conditions, which may be said to be an example of “barking up the wrong tree”. But the judge found that Mr Hughes’ then belief was not confined to an association of wet conditions with the onset of osteoarthritis. He shared the generally held view that his working conditions in general were at least in part responsible for his knee problems. The circumstances in which Mr Hughes had made his claim were not satisfactorily explained. There was no evidence at all as to why the claim was not pursued. The judge concluded that this episode merely underlined his finding that Mr Hughes had a firm belief that his knee osteoarthritis was attributable to his general walking and working conditions over the years underground, and that he must have accepted advice, which he says that he cannot recall, to the effect that the claim for whatever reason was not worth pursuing. The judge concluded his findings concerning Mr Hughes in this way:- “260. . . . . There followed at least some 14 years limitation delay which can only be explained by the facts that having instigated and not pursued a claim based on knee osteoarthritis he probably gave the matter no further thought or concern until he was advised of this group litigation. It is suggested by Mr Allan that an individual could not in reality have pursued an individual claim because of the resources needed to investigate the matter sufficiently to present a claim such as the present group of claims. That may be so insofar as it is relevant, but in Mr Hughes’ case he had started out on, but not pursued, a claim. There is no evidence that he made any further enquiries of his union to see if anything had changed. 261. In my view, Mr Hughes was left with only the generic reason for not bringing a claim earlier, namely that it was not until the union approached him in 2007 that he was prepared once again to consider pursuing a claim.”

[54]As Miss Mulcahy emphasised, this is not a case in which there has been some major scientific breakthrough or development of a nature which has changed the landscape against the backdrop of which the ability to claim fell to be assessed. Throughout the period of the delay all the Claimants believed that the cause of their knee osteoarthritis was kneeling, crawling, walking on uneven surfaces, stumbling, tripping and heavy lifting in a bended knee position. They made no further enquiry because they regarded these activities in the conditions which obtained as simply part and parcel of their work.

[55]It is here in my view that the relationship between sections 14 and 33 of the Limitation Act must be kept firmly in mind. To acquire knowledge under s.14 a claimant must know, or be in a position in which he ought reasonably to know, that he has suffered an injury significant enough to justify bringing a claim in consequence of identifiable acts or omissions of an identifiable person. What is not required at this stage is an appreciation that there is in consequence a cause of action. The position was summarised by Lord Nicholls of Birkenhead in Haward v Fawcetts

[2006] 1 WLR 682

at paragraph 9 of his speech in this way:- “Thus, as to the degree of certainty required, Lord Donaldson of Lymington MR gave valuable guidance in Halford v Brookes

[1991] 1 WLR 428

, 443. He noted that knowledge does not mean knowing for certain and beyond the possibility of contradiction. It means knowing with sufficient confidence to justify embarking upon the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice and collecting evidence:

“Suspicion, particularly if it is vague and unsupported will indeed not be enough but reasonable belief will normally suffice”

. In other words the claimant must know enough for it to be reasonable for it to begin to investigate further.” A further period of three years is then available to enable the claimant to make the further enquiries, take the necessary advice, gather together the evidence and generally to embark upon the preliminaries to bringing an action. Section 33 then has the ability in all cases, not just those where date of knowledge is in issue, to correct the injustice which can be caused by an arbitrary time limit as where for example a claimant receives incorrect advice as to the merits of his claim and in consequence refrains from bringing an action. His lack of culpability in that regard can be taken into account by the court when assessing in due course whether a fair trial is still possible when, years later, the claimant has been properly advised and seeks to pursue his claim. As Smith LJ explained in Cain v Francis,

[2009] QB 754

at 774, the only rationale which could have underlain, in 1975, the introduction of the provision which later became s.33 of the 1980 Act, was a desire to refine the rough justice of the old arbitrary provision. Instead of a limitation rule of thumb, the courts would be required to consider what was fair and just in all the circumstances of the individual case. It is not however the function of s.33 to preserve indefinitely the ability to bring a claim. In the Atomic Veterans Litigation Lord Walker observed, at paragraph 67 of his judgment, when disagreeing with the minority approach to s.14:- “More generally, I consider that the practical result of Lord Phillips PSC’s analysis would be a situation that Parliament cannot have intended when it enacted these provisions. It would mean that persons [and sometimes, as in this case, large groups of persons] with a belief that they had suffered personal injuries through the fault of a government department or local authority, or any other public-sector or private-sector body but with no real prospect of proving legal liability on the balance of probability, would be able to keep their claims on ice, as it were, for an indefinite period, in the hope that one day the right evidence might turn up.” Self-evidently Lord Walker is not there dealing with the proper approach to the corrective function of s.33. His remarks presuppose knowledge of fault without means of proof. But I consider that his remarks can nonetheless be adapted and adopted as a guide to the legislative intention. Section 33 is not a mechanism for keeping potential claims on ice. It is a corrective for injustice where the circumstances allow.

[56]Accordingly the judge was in my view right to regard the Claimants’ failure to make appropriate enquiries as not telling in their favour when he came to exercise his discretion. The judge appreciated that each Claimant had put himself into the hands of his union but he regarded that, rightly in my view, as not entitling them to some special privileged position as compared with other claimants. Were it otherwise, there would be the potential for claims to be put on ice in just the manner which Lord Walker deprecated. Furthermore the judge was provided with only the most exiguous evidence, in the shape of the evidence of Mr Morgan, a solicitor, as to the enquiries made or advice taken by the unions in relation to the causative factors linking osteoarthritis of the knee with working conditions in the mines. In fact Mr Morgan’s evidence in this regard amounted to an attempt to suggest that until 2003 there was no reason to initiate such enquiries. This evidence is I think somewhat double edged. The miners themselves had no doubt as to the causal link between their working conditions and the development of knee osteoarthritis. The inference is virtually irresistible that the view was formed that those conditions could not be demonstrated to be actionable. One does not however need to go so far. The simple fact is that the situation called out for consideration and enquiry, even if the only outcome of that process might have been the conclusion that no action could be taken, or that it would be difficult, or not cost effective, or whatever other conclusion may have been reached. If any consideration was in fact given to the position the evidence does not reveal it. The judge was presented with a case in which there was simply inaction on the part of both the Claimants and their unions. Furthermore the judge did not regard the reasons for the delay as a decisive factor – paragraph 40 of his judgment. He simply treated the reasons as not here telling in the Claimants’ favour. In my judgment he was entirely right so to do.

[57]I am conscious that I have dealt only with the principal points made by Mr Allan in his sustained address to us. He had other detailed criticisms of the judge’s approach. Looked at in the round however, I consider that Mr Allan has not come anywhere close to demonstrating grounds upon which this court should interfere with the judge’s careful exercise of his statutory discretion. I would go further. The case against allowing these stale claims to proceed was in all truth quite overwhelming. I would dismiss the appeal against the judge’s exercise of the s.33 discretion.

The form of order

[58]That leaves only the question whether the judge was right also to enter judgment against all members of the Group and to discharge the GLO. We do not have the judge’s reasons for making his order in this form, nor have we seen a transcript of the argument which took place on the handing down of the judgment. Mr Allan submitted that on the issue of knowledge there may still be cases within the group in which a date of knowledge is within the primary period, or, if it is outside the primary period, it may fall within that period from 2003 onwards, and so what the judge should have done is to have allowed a period of time in which a decision could have been made on behalf of the Claimants as to whether any other cases were to be brought forward in respect of issues under s.14 or s.33. In answer to the point that the Claimants will surely have put forward their best cases as their lead cases, Mr Allan reminded us that the judge had made a ruling that lead cases could not be selected from the Yorkshire area. This is not perhaps the most attractive of points since the reason for excluding Yorkshire cases was that no disclosure of documents had been given in respect of Yorkshire, the Claimants having had the choice of the three areas in respect of which disclosure should be given. Mr Allan accepted that no efforts had been made to investigate whether any other cases, whether from Yorkshire or elsewhere, fell within the category he had identified. He pointed out that there were nearly one thousand cases on the register and that it would have involved a good deal of work to investigate every one of those cases as to the likely date of knowledge. The task had not been undertaken “because if the order stands it would be a pointless task”.

[59]At paragraph 401 of his judgment the judge said this:- “There now needs to be consideration of how this decision impacts on the remainder of the claimants in this group litigation. In view of the wide range of lead claimants selected, I anticipate serious difficulty for any to bring themselves into a separate category by which they could establish a date of knowledge that would bring them within the limitation period prescribed by section 11 of the Act; or by which discretion could be exercised to disapply section 11.” Evidently no attempt was made before the hand down of the judgment to identify any claimant who could plausibly assert that his position was significantly different from that of the lead Claimants, and no attempt has been made since. However we were told by Mr Allan that at the hearing when judgment was handed down the Claimants applied for further time to investigate the rest of the Group in the light of the judgment and that the judge did not accede to that application.

[60]It was clearly the intention of the parties that the combination of selection of the lead Claimants and the wording of the preliminary issues would provide guidance so far as concerns the cases of all members of the Group. Perhaps unusually, there is no provision in this GLO that either findings of fact or findings of law made in the course of resolution of preliminary issues will bind the rest of the Group. The judge’s decision to enter judgment against all remaining registered claimants may therefore have been pragmatic but it is arguably irregular. Those claims were hitherto stayed pending the determination of the preliminary issues. It is axiomatic that although the reasons for the delay appear to be generic, the exercise of the s.33 discretion is individual to each claimant. Similarly, the relevant date of knowledge can only be individually ascertained.

[61]I have some sympathy with Miss Mulcahy’s submission that if there are any cases which can plausibly be asserted to be substantially different from those considered by the judge the Claimants could and should have identified at least a representative sample thereof if not before the hand down of the judgment (and I do not know how long elapsed between circulation of the judgment in draft and hand down) then certainly by now. I also have no desire to raise false hopes. Nonetheless, I am persuaded that the Claimants should have a further opportunity to identify any cases which may plausibly result in a different outcome. Accordingly, I would set aside, or perhaps suspend, that part of the judge’s order which enters judgment against all of the registered Claimants other than the lead Claimants and discharges the GLO. I would invite counsel to agree upon a suitable form of order which must incorporate a timeframe within which and a mechanism by which such further cases are to be identified. In the absence of Judge Grenfell, who has now retired, counsel should also give consideration to the question from whom directions should, if appropriate, in due course be sought as to the resolution of those cases. There will need to be a default provision whereby if no such cases are put forward within the prescribed timescale, the judge’s order is reinstated.

[62]I cannot part with this case without paying tribute to the judge. It is I hope apparent from what I have already said in my judgment that I regard Judge Grenfell’s judgment as a tour de force. Not only has he deployed to good advantage his own great experience in the field but he has also given extremely conscientious consideration to the mass of evidence placed before him insofar as it bore both on the generic issues and on the case of each lead Claimant individually. His careful and exhaustive judgment has made our own task immeasurably easier than it might otherwise have been.

[63]I agree.

[64]I also agree.

Davies & Ors v Secretary of State for Energy and Climate Change [2012] EWCA Civ 1380

Introduction

The Nature of the Claimants’ Case

The judge helpfully summarised the defence to the specific allegations as follows:

The Issues on the Appeal

Broad Merits

The Impact of Delay on the Cogency of the Evidence

The Reasons for the Delay

The form of order

Cited in 4 later judgments