Limitation: More than a hollow provision
Karen Lee v Nationwide Building Society
County Court at Wakefield
18 May 2018
In the recent case of Lee v Nationwide Building Society, the Court were asked to consider by way of preliminary issue, whether to grant the Claimant permission to continue with a claim which had been issued 32 days out of time, under the provisions of the Limitation Act 1980.William Stobart and Jodie Kinnear, who were instructed to act on behalf of the Defendant and its insurer QBE, outline the key findings.
The claim concerned an accident in the Claimant's workplace. On 19 March 2014 the Claimant, who was employed as a New Accounts Assistant for the Defendant, claimed to have slipped when exiting the bathroom, sustaining personal injury. The Claimant alleged that the floor had been wet. The Claimant issued her claim on 20 April 2017, having instructed her solicitors shortly after expiry of the limitation period. It was agreed by the parties that the claim had been issued 32 days out of time.
The Claimant sought permission to proceed under the provisions of S.33 of the Limitation Act 1980 to disapply the primary limitation period on the basis that the Defendant had not suffered prejudice. The Claimant pointed to the relatively short delay in issuing the claim, as well as contemporaneous accident reports produced by the Defendant in stating that there was no forensic prejudice due to what amounted to a minor delay.
The Defendant raised the limitation defence, the Defendant's evidence highlighted that the cleaning duties at the Claimant's workplace had been outsourced to Carillion Utility Services who had now entered liquidation. While a search for documents had been carried out when the claim was first presented, it had not been possible to obtain any information from Carillion. The Claimant's line manager who completed the incident report was unable to remember any of the circumstances of the accident, and there were no other known witnesses. In particular, the Defendant placed reliance on the case law of Donovan v Gwentoys  1 All ER 1018 which requires the court to have regard for "all the circumstances of the case" when assessing prejudice, including the period from the date of the accident until the expiry of primary limitation.
Section 33 of the Limitation Act 1980 provides the court with an unfettered discretion to exclude the preliminary time limit for actions in respect of personal injury or death. District Judge Jackson noted that the exercise of the court's discretion is a balancing act between prejudice to the Claimant and prejudice to the Defendant as "...without the primary limitation period being disapplied the Claimant will be unable to pursue her claim, but, if the primary limitation period is disapplied, the Defendant losses the benefit of an absolute defence to the action".
The Defendant had raised limitation in the context of a full denial of liability. In assessing the test District Judge Jackson found that:
- The Claimant bears the burden of proof;
- The relevant test is the balance of probabilities;
- This is not a discretion exercised automatically, but it is not an exceptional indulgence;
- The fundamental question is whether it is fair and just in the circumstances of the particular case before the court to expect the Defendant to meet the claim on its merits notwithstanding the delay in commencing the proceedings.
On the evidence the Claimant had provided no good reason for failing to bring her claim at an earlier stage. So far as the Defendant's prejudice was concerned, District Judge Jackson found that "the evidence likely to be produced at trial by the Defendant is likely to be less cogent both as a result of the passing of 32 days and of 3 years and 32 days." The Defendant was prejudiced by this loss of cogency because the Claimant was inevitably likely to have a better recollection of an accident that affected her directly than other witnesses who merely assisted her in what to them would have seemed a minor incident.
Furthermore District Judge Jackson went on to hold that this was not "an appropriate case for the court to exercise its discretion under Section 33 to disapply the primary limitation period. The passage of time has significantly diminished the Defendant's opportunity to defend the claim on liability. There is no good reason for the delay and nothing to qualify the prejudice. It is not fair in the circumstances of this particular case to expect the Defendant to meet the claim on its merits notwithstanding the delay in commencing the proceedings, as the Claimant has not convinced me that the prejudice to her will outweigh that to the Defendant."
Finally, it is also worthy of note that in arriving at her decision, District Judge Jackson also commented:
- There could be no criticism of the conduct of the Defendant or its insurers;
- There were no health factors which would have prevented the Claimant from issuing proceedings at an earlier point;
- The value of the claim was modest, and the Claimant's injury was not life-changing;
- There were concerns over the Claimant's credibility in light of some of her answers given in cross-examination.
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