Mr Justice Silber:
I. Introduction
- Mrs. Kathleen Smith ("the claimant") is the widow and administratrix of the Estate of the late George Kenneth Smith ("Mr. Smith"). She claims damages against the Ministry of Defence ("the defendants"), who are the former employers of Mr. Smith on the grounds that the defendants failed to comply with the common law and statutory duties owed by them to Mr. Smith.
- Mr. Smith, who was born on 13 August 1941, worked for the defendants as a labourer at RAF Conningsby Airbase in Lincoln between 26 September 1960 and 10 May 1962. Mr. Smith died on 16 May 1991 as a result of mesothelioma, which was attributable to exposure to asbestos and it is contended that this exposure occurred during Mr. Smith's employment by the defendants.
- The defendants dispute liability. By an order dated 14 September 2004, all issues in this case other than quantum were ordered to be tried as preliminary issues, which I have now heard.
II. The Issues
- The three matters raised on this hearing of the preliminary issues are:-
a) whether the defendants failed to comply with any common law or statutory duties that they owed to Mr. Smith ("The Breach of Duty Issue");
b) if the defendants failed to comply with any common law or statutory duties owed to Mr. Smith, whether such breaches of duty caused the death of Mr. Smith ("The Causation Issue") and
c) whether the claimant is precluded from bringing any claim against the defendants for breach of any of such duties that they owed to Mr. Smith because such claims are statute-barred ("The Limitation Issue").
- The main issue at this trial has been the limitation issue. Although there has been no serious dispute on the breach of duty or the causation issues, it is appropriate to deal with these issues in some detail as those issues are interrelated with the limitation issue.
III. The Breach of Duty Issue
- The claimant's case is that the defendants should have exercised proper control and supervision over the way in which Mr. Smith performed his duties and in particular, that they ought not to have allowed him to be exposed to asbestos and/or they ought not to have allowed any of their operations carried out by their workmen to create asbestos dust in the atmosphere, which would have been breathed in by Mr. Smith during the course of his work.
- Mr. David Allan QC, counsel for the claimant contends that the defendants:-
a) negligently and/or in breach of section 4 of the Factories Act 1961 failed to provide any effective or suitable ventilation for securing and maintaining the circulation of fresh air for rendering harmless the injurious asbestos dust;
b) negligently and/or contrary to section 63(1) of the Factories Act 1961 failed to take all practicable measures to protect Mr. Smith against the inhalation of asbestos dust and/or to prevent its accumulation in his place of work.
c) failed to provide or maintain exhaust appliances as near as possible to the point of origin of the asbestos dust so as to prevent it from entering the air although it would have been practicable for the defendant to have provided such exhaust appliances;
d) negligently and/or in breach of section 29 of the Factories Act 1961 failed to ensure that Mr. Smith's place of work was made and kept as safe as was reasonably practicable for him;
e) negligently and/or in breach of section 2(2) of the Occupiers Liability Act 1957, failed to take such care as was reasonable in all the circumstances to see that Mr. Smith was reasonably safe in the premises where he was working and while he was invited and permitted by the defendants to be there;
f) negligently and in breach of their statutory duties failed to provide any suitable breathing apparatus or respiratory protective equipment or to provide or maintain suitable protective clothing for Mr. Smith;
g) negligently and in breach of their statutory duties failed to ensure that there was no asbestos dust in the area in which Mr. Smith was working;
h) negligently and in breach of their statutory duties failed to instruct Mr. Smith properly or at all that asbestos was a hazardous material and of the precautions which could and should have taken to limit his exposure to asbestos dust and/or fibres in the course of his work.
- In order to show the presence of asbestos dust, Mr. Allan relies particularly on the evidence of Mr. Frank Ward, who explained first, that he started working for the defendants on 7 November 1960 at RAF Conningsby Air Base and second, that Mr. Smith was then already working there. He said that when the aircraft left the hangar at RAF Conningsby Air Base, he and Mr. Smith had to make sure that the hangar floors were spotless. His evidence was that the defendants contracted a firm to paint or spray the girders and roof of Hangar No. 2 with what he now realises was asbestos, although he did not realise it at the time. He explained that the asbestos fell down on to the hangar floor.
- Mr. Ward said that the defendants had used a sweeper lorry to try to sweep up the asbestos dust, but this did not work effectively as it merely disturbed the dust creating a thick dust cloud, which then settled. The defendants also insisted that the hangar doors remained closed because they did not want dust escaping on to the runway. Mr. Ward recollected that together with Mr. Smith, they were in Hangar No. 2 whilst the sweeper lorry tried to sweep the asbestos dust, which was about two inches thick. He also said that after the defendants had tried using the sweeper lorry, they instead tried ground equipment in the form of a brush about six to eight feet long producing water as it went along the floor of the factory. This again, according to Mr. Ward, did not work effectively and it merely also caused disturbance of the settled dust so that nobody could see through it because it was so dense. Mr. Ward stressed that the defendants again refused to open the hangar door, which meant that he and Mr. Smith were exposed to the asbestos dust.
- He also said that he remembered the asbestos kept falling off the roof and the girders. He stated that when pigeons got inside the hangars, they may have helped to loosen the asbestos, which often fell off when the hangar doors were opened. Mr. Ward's evidence was that this annoyed both himself and Mr. Smith because after they had been cleaning the hangar floor, the asbestos would fall down causing a mess on the hangar floor, which they had just cleared. According to Mr. Ward after a complaint had been received by them, the defendants employed a company to seal the asbestos by painting over it. He also explained that he and Mr. Smith were not told that the asbestos was harmful and that they were not given protective masks.
- The evidence of Mr. Ward was to some extent corroborated by the evidence of Mr. Peter Robinson of Bradley Environmental Consultants Limited, who said that in 1992, his company was engaged to remove asbestos material from Hangar No. 2 at RAF Conningsby. He confirmed that the ceilings and wall of the hangar had been sprayed with Crocidolite (blue asbestos) to a thickness of probably one to two inches. Mr. Robinson explained that one of the problems facing his company was that there had been inadequate attempts to remove asbestos material previously because it had left residues of Crocidolite, which had been painted over.
- The solicitors for the claimant and for the defendants jointly instructed Mr. R. B. Clarke, a Consultant Engineer, who was required:-
"..as a joint expert to prepare a report on negligence and breach of duty in respect of the exposures to asbestos dust suffered by the late George Kenneth Smith who died on 16 May 1991 from the disease of mesothelioma".
- His conclusions, which have not been challenged and which I accept, were that:-
a) ".. Essentially, I have concluded that, depending on the circumstances, on the balance of probabilities [Mr. Smith] would have been at least moderately, if not heavily, exposed to [asbestos fibres and/or asbestos fibres as a result of encountering, disturbing and/or clearing away asbestos-containing debris and dust which would have derived from sprayed asbestos coating on the hangar's internal surfaces]" (Paragraph 6.4);
b) ".. from the late 1940s and up to about 1960, [reasonably prudent] employers ought to have anticipated that repeated exposure to asbestos fibres were ultimately likely to result in the accumulation of a sufficient quantity of asbestos fibres in the lungs to cause asbestos-induced disease. Thereafter, information began to emerge which indicated that brief and/or slight exposure to such fibres could cause mesothelioma" (Paragraph 5 of Summary of Conclusions);
c) "from about 1960 .. information began to emerge which indicated that exposure to asbestos fibres, particularly crocidolite asbestos fibres, could cause mesothelioma …" (Paragraph 6.10);
d) "throughout the material period, approved dust respirators were available which, if provided and worn, would have provided significant protection against toxic dust including asbestos fibres" (Paragraph 6 of Summary of Conclusions);
e) "in the 1950s and the 1960s, details of approved respirators would have been available from local offices of [Her Majesty's Factory Inspectorate]" (Paragraph 6.11).
- Mr. Rahman for the defendants did not formally admit liability, but he did not make any submissions on the liability issue. In my opinion, it is clear that (i) whilst working for the defendants Mr. Smith came into contact with a great deal of asbestos dust and fibres including the particularly potent Crocidolite (ii), this contact occurred at a time when the defendants knew or ought to have known that this would constitute a serious risk to health of Mr. Smith, (iii) the defendants knew or ought to have known about the effective safety precautions that could then have been adopted by their employees, who came in contact with asbestos but (iv), the defendants failed to make them available to Mr. Smith or to take any steps to prevent him coming into contact with asbestos and, in particular, the Crocidolite. Thus, I am satisfied that the defendants have acted in breach of their statutory and common law duties and that the claimant has made good her claim that the defendants acted in breach of these duties to Mr. Smith.
IV. The Causation Issue
- The verdict of the Coroner at the Inquest inquiring into Mr. Smith's death was that he died from "the industrial disease of mesothelioma". Dr. Robin Rudd, a consultant physician, has concluded that Mr. Smith died of malignant mesothelioma of the pleura. He explained that mesothelioma is a rare tumour in persons, who have not been exposed to asbestos and that when there is a history of past asbestos exposure, "the balance of probabilities strongly favours that exposure having been responsible for the mesothelioma which occurs subsequently".
- Dr. Rudd noted that asbestos fibre types differ in their propensity to cause mesothelioma but that Crocidolite (blue asbestos) is the most potent. This is significant because Mr. Robinson's evidence was that Crocidolite had been used in Hangar No. 2 at RAF Conningsby Airbase. Dr. Rudd's view is that there is a long latent interval between first exposure to asbestos and the onset of clinical mesothelioma and periods of more than 30 years are common in the most serious cases. Dr. Rudd concludes that Mr. Smith's employment with RAF Conningsby where he was exposed to asbestos between 1960 and 1962 "is the probable cause of his mesothelioma [and] there is no evidence that he was exposed to asbestos from any other source".
- The defendants do not challenge this reasoning and I consider that the death of Mr. Smith was caused by the defendants' breach of duty and/or negligence. In reaching these conclusions on both the breach of duty issue and the causation issue, I have taken into account the effect of the claimant's delay on the cogency of the evidence, which can be adduced by the defendant because of the delay but it has not been suggested by the defendants that they have been prejudiced in any identifiable way, although they contend that this delay may have caused some prejudice to the defendants which should not be disregarded. Thus, the only obstacle for the claimant to overcome before she can recover damages is the limitation issue, to which I now turn.
V. The Limitation Issue
(i) When did the primary limitation period for this claim end?
- The primary limitation period for this personal injuries claim is three years from the date of death or the claimant's date of knowledge (if any), whichever is the later (section 11(4) of the Limitation Act 1980) ("the 1980 Act"). "Knowledge" is defined in section 14 of the 1980 Act as "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
c) the identity of the defendant …".
- It is common ground or not seriously disputed that the primary limitation period for the claimant's present claim only started in 1995 for reasons, which I will now explain. At the time of Mr. Smith's death on 16 May 1991, the claimant knew that he had died of a disease usually caused by asbestos, but significantly she did not know where her husband had been exposed to asbestos. Her evidence was that when she had first met her husband in 1964, he had been working for the Trent Bus Company in Nottingham as a conductor for the previous six months. She also said that she did not know her husband's working history before she had met him. The claimant said that none of the doctors had suggested that she might have a claim for compensation.
- When the inquest into Mr. Smith's death took place, the Coroner commented to the claimant that she might be entitled to have some benefits from the Government because of Mr. Smith's condition, but she did not understand what he meant. In any event, the claimant said that she had assumed that any benefits to which she would be entitled would be paid to her automatically and therefore she did not appreciate that a special application had to be made for benefits for an industrial disease. The claimant said that at the inquest no evidence was given showing that Mr. Smith had worked with asbestos dust during the course of his work. She did, however, recollect that after the inquest, the Coroner's Officer had said to her that if she ever found out where her husband had come into contact with asbestos dust, it might then be possible for her to claim compensation.
- The claimant pointed out that her husband was not a member of a trade union and that there was not anybody from whom she could obtain legal or other advice. The claimant also said that it had not been suggested by anybody that she should contact a solicitor to bring a claim either against any former employers of her husband or against the Department of Social Security. She said that she had completed all the forms, which the Department of Social Security had supplied to her, but after she had completed and returned them, there was no indication given to her by the Department that she could make further claims.
- The claimant also explained that when her husband was ultimately diagnosed as suffering from mesothelioma, he was really gravely ill and that he could not be questioned about his exposure to asbestos dust at RAF Conningsby about 30 years before. Therefore, it is clear that at the time of her husband's death and in the immediate period thereafter, the claimant did not have the requisite knowledge needed for the primary period to have started.
- In any event, having lost her husband at a relatively young age with two dependent children to support, the claimant was not in a state to contemplate litigation. She stated that later in 1995, she was watching a television programme about asbestos-related illnesses. Although the claimant said that she cannot now recall the details of the programme, she did remember that it made her think that she should then investigate whether Mr. Smith had come into contact with asbestos dust in order that she could ascertain if she could bring a claim for compensation.
- Her evidence was that shortly after seeing the programme, she went to see her father-in-law and she told him that she did not know where her husband had worked before they had met in 1964. The claimant's father-in-law told her first, that there was a Mr. Owen Ward, who lived locally and who had worked with Mr. Smith and second, that it might be worthwhile for her to speak to him as he might be able to give some information about where Mr. Smith might have come into contact with asbestos dust.
- The claimant said that she spoke to Mr. Ward on 18 May 1995 and he then told her that Mr. Smith had been exposed to asbestos dust when they had worked together for the Ministry of Defence at RAF Conningsby. She said that this was the first occasion on which she had learnt that her husband had been exposed to asbestos dust during the course of his work. The claimant decided after speaking to Mr. Smith that she would try to obtain some advice in order to see if matters could be taken further.
- On the following day, she said that she went to the Citizens' Advice Bureau in Beaumont Fee in Lincoln and they suggested she should see a solicitor. The claimant said that an appointment was duly made for the claimant to see a solicitor called Adrian Taylor, who worked for a firm of solicitors in Lincoln called Russell Adie Pickwell ("RAP").
- The claimant's evidence was that at her first meeting with Adrian Taylor, he took some details from her before he explained to her that he would have to carry out some investigations to see if a claim could be brought by her. The claimant said that she gave Adrian Taylor details relating to Mr. Ward. Mr. Taylor told the claimant that for his initial work, RAP's fee would be £130 plus VAT. Subsequently, Mr. Taylor wrote to the claimant and he told her first, that he would have to obtain an opinion from a barrister as to whether or not a claim could be brought and second, that the claimant should make an application for legal aid to pay for the fees of this barrister. He also explained that he had spoken to Mr. Owen Ward about Mr. Smith's exposure to asbestos dust whilst working for the defendants. Mr. Taylor also said that he was satisfied that Mr. Smith's death was due to exposure to asbestos dust.
- In her legal aid application form signed on 26 May 1995, the claimant gave details of her claim. She explained that (i) in 1961/1962, her husband had been employed by the defendants at RAF Conningsby, (ii) his duties meant that he was exposed to blue asbestos dust, (iii) her husband died of mesothelioma which was caused by the defendants' negligence and breach of duty and (iv) she was only informed by Owen Ward in May 1995 that her husband had been exposed to asbestos dust.
- I appreciate that the claimant stated that she did not complete the form and I accept her evidence. Nevertheless, the facts set out in the application form must have emanated from the claimant or must at least have been known to her by the end of May 1995. That means that when she completed the legal aid application form, the claimant then had the requisite "knowledge" for the purposes of section 11(4) of the 1980 Act. Thus, it is not disputed that the primary limitation period for the claim of three years ran from May 1995 until May 1998. This now leads me to the critical issue in this case, which is whether the primary limitation period for the present claim can be extended until May 2004, which was when the present proceedings were in fact commenced.
(ii) The Principles relating to the Extension of the Primary Period
- Section 33 of the 1980 Act confers on the Court a discretionary power to disapply the statutory provisions, which prevent claims being brought outside the primary limitation periods specified in, inter alia, section 11 of the 1980 Act, to which I referred in paragraph 18 above.
- Section 33(1) of the 1980 Act insofar as is material provides that:-
"If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –
(a) the provisions of section 11 … of this Act prejudice the plaintiff 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".
- Section 33(3) provides, insofar as is material to a claimant who is not under a disability, that:-
"In acting under this section the court shall have regard to all the circumstances of the case and in particular to –
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d) …..
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received".
- There does not appear to be a dispute between the parties that:-
(a) the discretion of the court under section 33(1) of the 1980 Act is entirely unfettered and the specific matters set out in section 33(3) are intended to be examples and not definitive of the factors to be considered in the exercise of the courts (Nash v. Eli Lilly & Co [1993] 1 WLR 782, 802);
(b) the burden of showing that it is equitable to disallow the limitation period rests upon the claimant and the burden is a heavy one because it is an exceptional indulgence to a claimant to be granted an extension and this should only be granted when equity between the parties demands it (KR v. Bryn Alyn Community (Holdings) Limited (In Liquidation) [2003] EWCA Civ 85 [74(ii)]);
(c) in determining whether to grant a direction that the primary limitation period shall not apply to a particular cause of action, it must be borne in mind that:-
"A direction under this section must therefore always be highly prejudicial to the defendant, for even if he also has a good defence on the merits he is put to the expenditure of time and energy and money in establishing it, while if, as in the present case he has no defence as to liability he has everything to lose if a direction is given under the section. On the other hand if, as in the present case, the time elapsed after the expiration of the primary limitation is very short, what the defendant loses in consequence of a direction might be regarded as being in the nature of a windfall" (per Lord Diplock in Thompson v. Brown [1981] 1 WLR 744 at 750B – D);
(d) in determining whether the primary limitation period should be disapplied, any delay on the part of the claimant both before and after the expiration of the limitation period must be considered per Lord Oliver of Aylemerton in Donovan v. Gwentoys [1990] 1 WLR 472 at 479D – 480B;
(e) the longer the period of delay, the more likely and the greater, the prejudice to the defendant (KR v. Bryn Alyn Community (Holdings) Limited (supra) [74(iii)]);
(f) where a claimant has made a choice either consciously by deciding not to pursue an action or unconsciously by in fact doing nothing, an extension should not be granted where many years later without any alteration of circumstances he changes his mind and then seeks advice which reveals that all along he had a claim, he should not be entitled to an extension (per Potter LJ in Buckler v. JF Finnegan Ltd and Sheffield City Council (supra) [2004] EWCA Civ 920 [31]);
(g) although Parker LJ said in Hartley v. Birmingham City Council [1992] 1 WLR 968 at 980 that "what is of paramount importance is the effects of the delay on the defendants' ability to defend", in the later case of Nash v. Eli Lilly & Co [1993] 1 WLR 782, the Court of Appeal said that it could not accept that in every case where the ability of a defendant to defend on the issue of liability has not been affected by the delay, the benefit of the limitation defence must be regarded as a "windfall" (at page 804).
- It is appropriate now to summarise the claimant's dealings with RAP. The claimant's evidence has to be considered against the background that while instructing and retaining RAP in 1995, she was a widow, who had a very modest income and who had by then almost no savings. On 31 May 1995, which was within a few days of the claimant first consulting RAP, she received a bill from them for £141. The claimant knew that RAP would do work for her before legal aid was granted for which she would have to pay at some point. She had also applied for legal aid on about 26 May 1995 on a form which had been completed on her behalf. In July 1995, the claimant received a further copy of the bill from RAP. By a letter dated 22 August 1995, RAP threatened to commence court proceedings against the claimant unless she paid the unpaid bill of £141 within seven days. In the same letter, RAP stated to the claimant that no further work would be taken by them until the outstanding bill for their fees was paid. Nevertheless, RAP did continue to act for the claimant and do work on her claim and indeed, by a letter dated 13 September 1995, they requested further information from the claimant.
- In about July 1995, legal aid was granted to the claimant but she was required to make monthly contributions of £11.40. In October 1995, Adrian Taylor left RAP and David John took over the conduct of the action. On 12 October 1995, RAP wrote to the claimant in respect of its unpaid fees explaining that they "shall now take steps to have the matter resolved by resorting to County Court proceedings". The letter also warned the claimant that taking that step would mean that additional costs would be added to the existing debt and "the existence of a County Court Judgment against you will prevent you from obtaining credit facilities should you wish to apply for such in the future". The letter ended by informing the claimant that if she wished to avoid court proceedings, she should contact the writer of the letter.
- By 30 October 1995, it was acknowledged by RAP in an internal memorandum that the claim for damages of the claimant was "likely to be a protracted matter". On about 9 November 1995, Mr. John of RAP discussed outstanding information with the claimant and he told her of the steps which he had been and which he was taking to obtain more information. The claimant was still trying to obtain important information requested by RAP, but she was not having success. This is a matter to which I will return in paragraphs 63 and 64 of this judgment.
- The claimant was at that time and thereafter on a very limited income and she explained that she was finding it hard to keep up with her contributions to the Legal Aid Board. Her evidence was that she was also frightened and upset by the threatening letters, which she had received from her solicitors, together with the fact that things did not seem to be going anywhere, which meant that she decided that she could not really afford to keep on paying the legal aid contributions. The claimant did not have any confidence that her solicitors were making progress with her case.
- So, by late 1995 it appeared to the claimant that her claim was not progressing and that it was unlikely to progress. She was and remained distressed and surprised by the threat of proceedings from RAP and she had also then fallen into arrears with the contributions under her Legal Aid Certificate. It was subsequently discharged on 24 January 1996 because the claimant was more than 21 days in arrears with her contribution. The claimant's view on the prospects of her claim was that the: -
"… whole thing had seemed hopeless to me after consulting the solicitors and just resulted in a claim being brought against me by them".
- Mr. Allan contends that although the claimant had sought legal advice as soon as she acquired knowledge that her husband had been exposed to asbestos whilst employed by the defendants, she had by about November 1995 made an understandable decision that she had lost confidence in her legal advisors and more significantly, in her claim. He explains that the claimant knew that prima facie her claim was out of time and as she had received no clear advice that her claim could still be pursued, she continued to believe that it was probably too late for her to bring a claim. Mr. Allan said that the claimant's concerns understandably increased because her solicitors had acted in a wholly inappropriate manner in threatening her with proceedings for not paying a modest bill and this fact was bound to discourage her from proceeding with her claim. Furthermore, he points out that there was a change in personnel for the claimant to handle with Mr. John starting to act for her, although she never met him and this was at the very time when she was being threatened with proceedings for non-payment of the costs.
- In determining if the primary limitation period should be disapplied, I propose to consider each of the matters referred to in section 33(3) of the 1988 Act before then considering various other relevant circumstances. I also bear in mind that to rely on my findings on liability and causation on the section 33 issue, "would put the cart before the horse" (KR v. Bryn Alyn Community (Holdings) Limited (supra) [74(vii)]).
(iii) Section 33(3)(a) of the 1980 Act
- Section 33(3)(a) requires the court to conduct a subjective enquiry into first, the length of the delay and second, the reasons for the delay on the part of the claimant (Coad v. Cornwall Health Authority [1997] 1 WLR 189 at 195). The delay referred to in that sub-section is the delay, which occurs after the expiry of the primary limitation period (per Lord Diplock in Thompson v. Brown [1981] 1 WLR 744 at 751D-E). That period is in the present case the period after May 1998 until the present proceedings were commenced in 2004. Although the test to be applied under section 33(3)(a) of the 1980 Act to the reasons of the claimant's delay is a subjective test, the question of what constitutes an acceptable delay is a matter for the court's judgment in the individual case (per Potter LJ in Buckler v. JF Finnegan Ltd and Sheffield City Council [2004] EWCA Civ 920 [25]). As I explained in paragraph 33(d) above, it is also necessary to consider delay during the limitation period. In the light of the way in which counsel's submissions were made and to avoid repetition, it seemed prudent for me to consider the acceptability of the claimant's decision not to pursue her claim from 1995 as one exercise at one point in this judgment rather than in respect of different periods (namely both before and after the primary limitation period) at different points in this judgment. Thus I will give my conclusion at this juncture on the acceptability of the claimant's reason for her delay from 1995 onwards and I will then develop and explain my reasons later in this judgment
- The claimant gave evidence and after being skilfully cross-examined by Mr. Rahman, I was satisfied after having applied the established legal principles to which I have already referred and for the reasons, which I will explain in paragraphs 56 to 73 below that the decision of the claimant not to pursue her claim from 1995 until the time when she retained her present solicitors in 2002 was understandable and for an acceptable reason.
- In this case, the claimant was in essence unaware of her legal rights and she should have been told by her solicitors, but she was not so informed, that in the light of what appeared in her legal aid application form and for the reasons which I have set out in paragraph 28 above, first that she had or was likely to have a good claim against the defendants and second that she could in 1995 have overcome any limitation defence as her claim was then still well within the primary limitation period. In addition, as I will explain in paragraph 73 below, the claimant's solicitors were engaged from July 2002 until the commencement of the present proceedings in obtaining the many types of evidence required to prove the claim as well as corresponding with the defendants and preparing the claim. I conclude that in the unusual circumstances of the present case the claimant has good reason for her delay in commencing the proceedings from 1995 until 2004.
(iv) Section 33(3)(b) of the 1980 Act
- It must be borne in mind that the delay referred to in this subsection is "delay subsequent to the expiry of the primary limitation period" (per Lord Griffiths in Donovan v. Gwentoys Ltd [1990] 1 WLR 472, 478). Mr. Rahman submits that the court can infer that the additional delay after the end of the primary limitation period, which is May 1998, may have caused some prejudice to the defendants, which might have been minimal but which nevertheless constitutes a factor, which should not be disregarded. He points out correctly in my view that an important factor was that the claim was only notified to the defendants in July 2003. So, he submits that given the lapse of time, it would be wholly unreasonable to expect the defendants now to be able to identify the specific ways in which they have been prejudiced by the relevant delay. Mr. Rahman also points out that the court is entitled to take account of prejudice accruing within the relevant limitation period and I will do so.
- Mr. Allan submits that if proceedings had been brought in, say 1995, which was over 30 years after the relevant exposure of Mr. Smith to asbestos, the evidence indicates that any relevant documents would have almost certainly have been destroyed by then. Thus, he contends that it is highly unlikely that the delay by the claimant in commencing proceedings or in notifying the defendant of her claim would have had any effect on the cogency of the evidence available to the defendants.
- Mr. Allan relies on the evidence of Mr. Iain Goode, the Deputy Departmental Records Officer of the defendants, who explains in a witness statement served on behalf of the defendants, that the solicitors of the defendants have carried out investigations to find papers relating to Mr. Smith's employment and his alleged exposure of asbestos. Mr. Goode says that no records have been found despite thorough searches having been carried out in all of the relevant places relating to the alleged works undertaken to Hangar No. 2 in 1961 – 1962. He explained that all Government departments are required to review their records in accordance with the terms of the Public Records Acts of 1958 and 1967. This means that the relevant records were reviewed at various times and that as a consequence of the size of the defendants, a great deal of review activity is and was delegated to those, who created the records with the review taking place within a few years of creation.
- According to Mr. Goode, only those records, which are thought to have additional value, either longer term, administrative or possible historical value are transferred to the defendants' archives under the control of the Departmental Records Officer. They are then reviewed by the Department Records Officer's staff, no later than the 25-year point. Mr. Goode said that the legislative requirements meant that the defendants would not hold or retain records older than 30 years old unless the Lord Chancellor had given his approval. He stated that those records, which are not selected for permanent preservation and which are not held for administrative reasons beyond the 30-year period, are destroyed. There is no suggestion that any papers relevant to the present claim of the claimant have been retained pursuant to any approval given by any Lord Chancellor.
- It would follow that many of the records relating to Mr. Smith's employment and the works carried out at Hangar No. 2 are likely to have been destroyed by Summer 1987, which was twenty five years after he ceased to work there as any documents relating to the employment of Mr. Smith would have been reviewed by the Department Records Officer's staff by that point. In any event, as I have just explained, no such document would have been retained by early 1992, which was thirty years after the claimant had left the employment of the defendants. Significantly, Mr. Goode's cursory search of the indices of records in the defendants' archives identified no relevant records, although according to a letter from RAF Conningsby, it has been established that Mr. Smith was employed there as a labourer from 26 September 1960 until 10 May 1962. Thus, I conclude that by the time when Mr. Smith died in 1991, records relating to his employment in this period are very likely to have been destroyed or to have been destroyed very shortly thereafter and almost certainly by the start of the primary limitation period in May 1995.
- In reaching that conclusion, I have not overlooked that since the early 1990s, it has apparently been the practice to retain records, which indicated exposure to certain substances for at least 30 years. Significantly, this policy only came into force in the early 1990s. As there are no documents available relating to Mr. Smith's employment, the clear inference is that the documents were destroyed before that policy came into effect, perhaps before or at about the time when Mr. Smith died.
- I suspect that even by the time when Mr. Smith died, there are unlikely to have been any witnesses available to assist the defendants. It is of great importance that a period of about 30 years separated the start of Mr. Smith's illness from the time when he would last have come into contact with asbestos as an employee of the defendants. In the light of the evidence, I suspect that it is very likely that any available witnesses would have died or would have been otherwise unavailable. Indeed, in his witness statement, Mr. Ward referred to two people who at the material time were posted to RAF Conningsby, namely Flying Sergeant Brisbane and Warrant Officer McSorley. They died respectively in 1973 and 1972. Thus, they too would have been unavailable to assist the defendants, even if the claim had been brought immediately after Mr. Smith's death in 1991. My conclusions are first that the defendants have not been prejudiced in any material way in investigating this claim or in obtaining evidence in relation to it by the claimant's failure to commence these proceedings in 1995 and second, that the defendants' oral and written evidence is not now less cogent than it would have been if the action had been brought at any time in the primary limitation period, namely between 1995 and 1998. I regard this as a significant, but not a decisive, factor in favour of extending the period.
(v) Section 33(3)(c) of the 1980 Act
- It is not contended that this provision has any relevance.
(vi) Section 33(3)(e) of the 1980 Act
- Mr. Rahman says that the claimant deliberately chose not to pursue her claim for damages, notwithstanding that she had been granted legal aid and that she was therefore in a position in which she could pursue her claim for damages substantially funded by public funds. He attaches importance to the fact that the claimant decided not to continue making her contributions, which had been assessed by reference to her income and that in spite of that, she now belatedly seeks to resurrect her claim. Thus, he says, the claimant cannot be regarded as having "acted promptly and reasonably", once she knew that the acts or omissions of the defendants, in the words of section 33(3)(e) of the 1980 Act "might be capable at that time of giving rise to an action for damages".
- My initial task is to ascertain when the claimant knew that the acts or omissions of the defendants "might be capable at that time of giving rise to a claim for damages". In my view, that date was May 1995 after the claimant had spoken to Mr. Ward. At that time, the claimant knew (i) from Mr. Ward that Mr. Smith was exposed to asbestos dust while working for the defendants between 1960 and 1962, (ii) from the Coroner's verdict that Mr. Smith died from the industrial disease of mesothelioma and (iii) that the Coroner's Officer had told her after the Inquest that if she ever found out that her husband had come into contact with asbestos dust, it might be possible for her to bring a claim for compensation.
- Thereafter, the claimant initially undoubtedly acted, in the words of section 33(3)(e) of the 1990 Act "promptly and reasonably" in taking legal advice once she had realised that the failings of the defendants might be capable of giving rise to a claim for damages because within a few days of obtaining this important information from Mr. Ward, she consulted RAP.
- In Buckler v. JF Finnegan Ltd (supra), Potter LJ stated that the period which has to be considered under section 33(3)(e) of the 1990 Act is the whole of the period in which there has been a delay and so I will consider it from May 1995 onwards. Potter LJ explained in Buckler's case with italicisation added that: -
".. the approach properly to be applied by a judge, bearing in mind the burden of proof upon the claimant, is whether or not circumstances (including in particular the condition of the claimant), or the claimant's knowledge of such circumstances, has changed to an extent which makes it equitable for the claimant to be permitted to proceed, in a situation where he has previously consciously and deliberately decided not to proceed" [31].
- I interject to stress that the use of the words "the claimant's knowledge of such circumstances" show that the court has to consider matters through the claimant's eyes. Mr. Allan submits that the claimant has acted "promptly and reasonably" after May 1995 when she knew the facts, which "might be capable at that time of giving rise to a claim for damages". The claimant contends that three factors cumulatively influenced her decision not to pay her legal aid contribution and also not to pursue her claim against the defendants in the period from late 1995 until the time in May 2002 when she saw a news report, which showed that some people who suffered from mesothelioma had won compensation and which prompted her to obtain advice. Those three factors were and not in any particular order of significance, a combination of first the claimant's limited financial means, second, the justified absence of any confidence whatsoever on the part of the claimant in the success of her claim and third, the effect of the way in which her solicitors, RAP, were pursuing her for their unpaid fees. Each of these factors will now have to be considered individually in turn but I stress that it is the cumulative effect of these factors, which is important.
(vii) The financial position of the claimant from late 1995 onwards
- The claimant said that in late 1995 as she was living on a very limited income, she found it hard to keep up with the monthly contributions of £11.40 due from her to the Legal Aid Board and so it is necessary to analyse her financial position. The claimant was not entitled to a pension from Mr. Smith's employers as he had only worked there for about five years at the time of his death. She did, however, receive a widow's pension from the State, which according to her legal aid form completed in Summer 1995, amounted to £47.39 per week. In November 1991, she started working in the Black Swan Public House in Conningsby and in May 1995, her weekly gross earnings from that employment were, according to her legal aid application form, £39 per week. Thus, her income was about £4,300 per annum, less any tax she had to pay.
- The claimant's legal aid application form also shows that she had to pay water rates of £240 per year, Council Tax of £390 per year, together with transport costs of about £12 per week. These expenses totalled about £1,230 per year and when set against her annual income of approximately £4,300, this left her with about £3,100 to pay all her other expenses and any tax, which she might have to pay. I note that the Legal Aid Board's offer to the claimant states that her "disposable income" was then £2,836 per annum. I am not sure how "disposable income" is calculated.
- Although the claimant did not receive a widow's pension from her husband's employer, they did pay her £5,000 on his death. According to an attendance note of RAP dated 5 June 1995, the claimant also received £22,000 from a policy on Mr. Smith's life. Out of that, she would have had to pay the funeral costs of £1,329, as well as the costs of supporting her twin children. Her maintenance of them included not only their subsistence costs until they were 18 years of age in March 1993, but also the cost of seeing them through college and learning to drive. She also provided each of them with a car. Thus, it is not surprising that as at the time of the legal aid offer, the claimant only had disposable capital of £360. RAP's attendance note of 5 June 1995 also shows that by 1994, not surprisingly the claimant had spent all the money, which she had received on her husband's death.
- Of course, out of the money that the claimant had left out of her income and pension of £4,300 approximately and after paying the water rates, Council Tax, fares and sums for her children, she would have also had to pay all the other costs of living, including the bill from her solicitors, RAP, to which I have already referred. I am quite satisfied that in mid-1995, the claimant was very hard up and that she had to think very carefully before spending any money at all. RAP's bill of £141 and her annual legal aid contribution of £136 (i.e. £11.40 per month) would have amounted to about 6.4% of her gross annual income and just less than 10% of her disposable annual income. I have no reason to believe that the claimant's financial position improved substantially or at all from late 1995 until 2002.
(viii) Absence of confidence in the success of her Claim
- When the claimant applied for legal aid, it was necessary for her solicitors to tick a box on the standard application form which best described their view of the claimant's prospects of a successful outcome to the claim against the defendants. The solicitors ticked the box which said of the claimant's prospects of succeeding against the defendant "Impossible to say. Seeking a Limited Certificate". The documents disclosed by RAP do not show that they had ever given to the claimant any positive advice about the outcome of her case at all times. Indeed, RAP were regularly indicating to the claimant that she had difficulties, even though the primary limitation period for the claim was not to expire until May 1998. RAP wrote to the claimant on 13 September 1995 stating that "if you are not time barred from pursuing these claims". At all times, they were merely trying to find more information from the claimant and from others. Furthermore, Mr. Taylor was leaving RAP's employment and he was being replaced by Mr. John, whom the claimant never met. Mr. John agreed when giving evidence that this change of solicitor would have been disturbing for a client such as the claimant.
- In their important letter of 20 November 2005, RAP reported to the claimant that they had received Mr. Smith's medical records, which included letters from various consultants, who had seen Mr. Smith when or after he had been diagnosed as suffering from mesothelioma. These letters contained statements to the effect that Mr. Smith had no history of exposure to asbestos or "no occupational history of exposure to asbestos". RAP explained to the claimant in their letter of 20 November 2005 that this information could only have come from Mr. Smith. RAP attached great significance to this information as it undermined or could have undermined the entire basis of the claimant's case, even though it was inconsistent with the evidence of Mr. Ward, which I summarised in paragraphs 8 to 10 and 25 above.
- Although the claimant had been asked by RAP to obtain details of further witnesses, she was unable to find any in spite of her efforts and that failure must have been depressing for her, especially as she must have realised how important it was for her to obtain this information. She said in her evidence that "I was doing my best to track down witnesses but getting nowhere; I was coming to the conclusion that the case looked hopeless. I felt that I had no encouragement from the solicitors that there were prospects of pursuing the claim further". It is significant that the claimant did not at any time receive any clear advice from RAP that in the view of those solicitors she had (or even probably had) a good claim against the defendants. Thus, it is not surprising that the claimant felt despondent about the claim, especially as she was having difficulties in finding witnesses in the face of RAP's request for her to do so after Mr. Smith had implied or stated that he had no history of exposure to asbestos. In my view, the claimant was quite entitled on a rational and on a reasonable basis to hold that view and also to conclude that, in the words of her witness statement: -
"I just didn't think things were going anywhere and I was throwing money away. I didn't have any confidence that my solicitors were getting anywhere with the case".
- I consider that the claimant would almost certainly have pursued her claim in 1995 if she had been told that it was thought by RAP that she then had a reasonable or a good claim against the defendants. After all, she was at all times after her husband's death in great need of compensation because of her very limited financial circumstances. It is noteworthy that when in May 2002 the claimant saw a television programme reporting that some people, who had suffered from mesothelioma had obtained damages from the courts, she immediately and without any delay on her part contacted the Citizens Advice Bureau with a view to resurrecting her claim. This fact supports the conclusion that it was the claimant's lack of confidence in her case, which prompted her not to pursue it but that when a possibility of pursuing the claim was drawn to the claimant's attention in the form of the television programme in 2002, she immediately sought advice.
- For the purpose of completeness, I add that in reaching this conclusion, I have not overlooked the fact that there is no contemporaneous record, which shows that the claimant had any concerns, which she had expressed to her solicitors about the merits of her claim. Having seen the claimant give evidence, it is clear to me that she is an honest but shy lady, who was quite likely to have kept her thoughts to herself. In any event, I unreservedly accept the claimant as being an honest and reliable witness, whose evidence, I should and do accept.
- My conclusion is that in the light of RAP's attitude to her claim, the claimant was justified in having little confidence in her case and that was a crucial reason as to why she did not pursue her claim from late 1995 until May 2002. It is clear that "there is no restriction on the reasons for delay to which the court must have regard and in some cases …. the [claimant's] ignorance of her legal rights may be a very important factor to be placed on her side of the balance" (per Nourse LJ in Halford v. Broutes [1991] 1 WLR 428, 438, quoted by Ward LJ in Coad v. Cornwall Health Authority (supra) at page 195). That is very pertinent to the claimant's position until after 2002 when the claimant consulted her present solicitors. I will explain in paragraph 73 the steps that were taken by the claimant and her solicitors between 2002 and the commencement of proceedings in 2004.
(ix) The financial demands from the claimant's solicitors
- As I have explained in paragraphs 35 and 36 above, RAP had sent a number of letters to the claimant threatening her with legal proceedings and increased costs if she did not pay its outstanding fees. These letters from RAP to the claimant were expressed clearly and on occasions fiercely. The letter of 22 August 1995 said that no further work would be done for the claimant until her bill was paid. Letters requesting payment of the outstanding bill were sent by RAP to the claimant on 18 July 1995 and 15 September 1995. This was followed, as I have explained, by RAP's letter of 12 October 2005 stating first, that RAP would take steps to recover their fees from the claimant by County Court proceedings, second that this would lead to additional costs for the claimant and third, that "the existence of a County Court judgment against you will prevent you from obtaining credit facilities should you wish to apply for such in the future".
- RAP knew that the claimant was financially hard-up at the time; she was, as I observed, when she gave evidence, a fairly timid and nervous person and so this correspondence would inevitably have caused her great concern and worry, especially as she was also having to make her legal aid contributions. She explained in evidence that she could not understand why RAP were threatening to sue her at the same time when they were acting for her and in her view, "it was very frightening and upsetting". Mr. John, the solicitor at RAP who latterly acted for the claimant, said that he could understand how distressing it would be for the claimant to receive these chasing letters. Indeed, he accepted that it was not good practice for solicitors within a few weeks of beginning to act for a client to threaten proceedings for unpaid costs. From his experience, Mr. John said that he could see how such letters would discourage a client from proceeding with litigation. I consider those comments of Mr. John to be totally justified and correct.
- It is now appropriate to look at the effect of these three factors in late 1995 and early 1996 before legal aid was withdrawn, namely the claimant's financial position, her lack of confidence in her claim and the financial demands of RAP. Thus, I can well understand why a reasonable person in the position of the claimant would have been distressed and deeply concerned by this conduct, especially first, when it was difficult for her with her very limited income to make the legal aid contributions, second, when any reasonable person in her position would or might well have had no confidence that her claim would succeed in the light of the absence of any encouraging advice and third, her failure to obtain any witnesses as requested by her solicitors. Not only had the claimant never been informed that her claim had reasonable prospects of success, but she had been warned as I have explained in paragraph 62 above that Mr. Smith had apparently said or had implied that he had had no history of exposure to asbestos. In my view, these factors would explain and constitute acceptable reasons for the decision of this claimant to cease to make the legal aid contributions and to appear to abandon her claim in late 1995. The claimant has satisfied me that in the light of the facts of this case and of her personal circumstances, she had acted "reasonably" when she ceased to continue to pay her legal aid contributions in late 1995.
- I now turn to consider the claimant's approach to this claim after her legal aid was withdrawn. The claimant has explained that after she ceased to be represented by RAP, she did not have any funds available with which to instruct fresh solicitors. She was aware that after she had instructed RAP, that it had "just resulted in a claim being brought against me by them". This experience had clearly and not surprisingly put the claimant off the idea of consulting new solicitors with a view to pursuing her claim. This stance has to be seen again in the light of three factors, of which the first was the financial position of the claimant, which would have meant that even if she had obtained legal aid for a second time, she would or might have had some difficulty in meeting her contributions. Second and most importantly, the claimant had no reason to believe that her claim had good prospects of success in the light of the advice and the lack of any encouraging comments that she had received from RAP that she had a good claim against the defendants. Third, the claimant's unhappy experience of instructing RAP had "just resulted in a claim being brought against me by them". This comment has to be considered against the background of the criticisms made by Mr. John of the way in which his firm had pursued the claimant for outstanding fees to which I have referred. I conclude that in not seeking further legal advice after her legal aid was withdrawn, the claimant had acted "reasonably" in the light of the special and unusual circumstances of her particular experiences and of her particular case.
- As I have already explained in paragraph 55 above, Potter LJ in Buckler stated that what a claimant has to establish in order to obtain an order for an extension of the primary limitation period is a change in the circumstances or a change in the claimant's knowledge of such circumstances, which prompted or caused the claimant to resurrect the claim. I consider that in this case, there were such changes first, when the claimant saw the television programme on 16 May 2002 in which it was stated that mesothelioma sufferers had received compensation and second, when she must thereafter have received favourable advice after she had been referred to her present solicitors after she had made inquiries to the Citizens Advice Bureau prompted by the television programme. In other words, there was a change in the claimant's knowledge of circumstances relevant to the prospects of recovering damages when she realised that damages were being awarded to mesothelioma victims.
- I have already pointed out that after the claimant had seen the May 2002 television programme, the contents of this programme caused her to consult the Citizens Advice Bureau and then to instruct her present solicitors with a view to bringing the present claim. Thus, I cannot accept Mr. Rahman's contention that this application can be rejected because, in the words of the trial judge in Beattie v. British Steel Plc (Court of Appal – 6 March 1997) "causes of action cannot be allowed to mature in suspense waiting to be got down and used long after their acquisition". In this case, until the claimant instructed her present solicitors, she did not receive the advice, which would have allowed her to conclude that she had a cause of action, which would enable her to obtain damages. So she acted "promptly and reasonably" after the claimant knew in 2002 that damages were being paid to victims of mesothelioma.
- The claimant acted "reasonably" after she saw this television news item on 16 May 2002. She has explained that she then rang the Citizens Advice Bureau, which gave her the telephone number and address of OEDA. The claimant then spoke to OEDA on the telephone and she then sent them some documents. This led to the claimant being put in touch with her present solicitors on 11 July 2002. Mr. Patrick Walsh, a partner in the solicitors' firm acting for the claimant, has explained the steps, which he took to obtain all the records, as well as obtaining the medical and other material of importance on the breach of duty and causation issues before sending a letter before action to the defendants in 2003, corresponding with the defendants' insurers and commencing proceedings in 2004. This entailed obtaining the files of RAP, Mr. Smith's records, the Inquest depositions and the Coroner's records. It took time to obtain these documents. Mr. Walsh then needed to identify the whereabouts of Mr. Smith's tissue samples before instructing first, Professor Bryan Corrin, a Consultant Histopathologist to confirm the diagnosis of mesothelioma and second, Dr. Rudd to explain the nature and extent of the disablement suffered by Mr. Smith before his death and his life expectancy if he had not suffered from mesothelioma. All these were proper steps for the claimant's solicitors to take as were their applications for insurance and for details of Mr. Smith's income from his last employer. I am satisfied that the claimant acted "reasonably and promptly" after 16 May 2002.
- Thus, my conclusion is that in the light of her unusual personal circumstances, the claimant acted "reasonably" at all times after May 1995 in the way in which she handled her claim. Moreover, whenever any event which occurred which indicated to her that she might have a claim, she acted "promptly" and obtained legal advice; she did this after speaking to Mr. Ward in 1995 and after seeing the television programme in 2002. So in the words of section 31(3)(e) of the 1980 Act, the claimant acted "promptly and reasonably once [she] knew whether .. the act or omission of the defendants, to which the injury was attributable, might be capable at that time of giving rise to an action for damages.
(x) Section 31(3)(f) of the 1980 Act
- Mr. Rahman contends that at no stage was the claimant ever advised that she had no claim for damages. He submits that it is difficult to understand the suggestion that the claimant somehow reached a decision in 1995 that there was no prospect of succeeding. His contention is that the claimant had indeed reached a clear decision not to pursue the claim.
- As I have explained, the claimant consulted RAP in 1995 but she did not receive any advice from RAP that her claim had even reasonable prospects of success. She was aware of their concerns and, of course, she knew for the reasons set out in paragraph 62 above that RAP were concerned in the light of the doctor's comments that Mr. Smith might not have come into contact with asbestos whilst employed by the defendants. As I have explained, the claimant had been asked to find witnesses to assist on this point, but in spite of her efforts, she was unable to do so. Those facts must have seriously undermined any confidence that the claimant would have had in her claim. I have explained in paragraph 76 above why the claimant cannot be criticised for not seeking any further advice until May 2002. The claimant's decision to seek advice in May 2002 was caused by what she had seen on the television programme. The stark fact is that on the two occasions when the claimant received information which suggested that she might have a claim against the defendants, she sought advice as she did after her conversation with Mr. Ward in 1995 and after seeing the television programme in 2002.
- Thus, I am unable to accept Mr. Rahman's submission for the reasons which overlap with those which I have already outlined in relation to section 33(3)(e) above. I conclude that the claimant took reasonable steps to obtain advice when there was information available to her, which indicated that she might have a claim against the defendants.
(xi) Financial Prejudice for the Defendants because of the Claimant's Conditional Fee Agreement
- Mr. Rahman submits that the defendants will suffer financial prejudice if the limitation provisions were disapplied in this case. His contention is that if the claim had been brought in the 1990s, then the claimant would have been legally aided and so if she was successful in her claim and the defendants were later ordered to pay her costs, then she could only recover her basic costs from the defendants without any additional success fee. Mr. Rahman contrasts that position with the present claim, which is now brought by the claimant with the benefit of a Conditional Fee Agreement ("CFA") and which includes an uplift in the form of a success fee. The consequence is that the defendants, if unsuccessful, would now have to pay more costs than would have been payable by the defendants if the claim had been brought in the primary limitation period when the claimant would then have been entitled to legal aid.
- In response, Mr. Allan submits that I should reject this argument of Mr. Rahman for the same reasons that it was rejected by Judge Hawkesworth QC in Andrew Kenneth Clack (Executor of the Estate of Anthony Rolfe, Deceased) v. Thames Television Limited (Halifax District Registry – Case No. HX350113 – 25 May 2004), when he explained that: -
"Equally the fact that the defendant is now faced with a CFA claim and is therefore exposed to an increase in the likely costs payable is, not a factor which, in my judgment, can be legitimately weighed in the balance. It might be argued to the contrary that the withdrawal of legal aid has benefited these and other defendants and their insurers by discouraging the making of claims in the first place and by removing a situation in which the defendants could not recover their costs if they succeeded on liability" [17].
- In my view, it is important to consider the contention of the defendants on the CFA issue against the setting of the present case. Mr. Allen has told me that an insurance policy has been taken out on behalf of the claimant to protect her having to meet any order for costs made against her. Thus, if the defendants are successful in this action, they are much more likely now to recover costs than would have been the position if the claimant was legally aided, because in that case it would have been difficult to recover costs against the claimant because she was legally aided.
- I have, however, come to the conclusion that I need not and should not determine whether the presence of the CFA constitutes a factor against disapplying the limitation provisions. First, I do not know the size of the success fee payable to the claimant's lawyers in this case and this is significant because the larger this fee is, the greater is the potential prejudice to the defendants. The defendants did not give me any details of it and if they did not know it they could have sought details from the claimant. Second, I did not hear any submissions on the circumstances in which the court can reduce the success fee payable to a claimant in this type of case. Third and perhaps most importantly, in the light of my findings on other limitation issues, I need not decide this CFA issue because even if I accept Mr. Rahman's submissions on this point, the claimant will still nevertheless succeed on the limitation issue for reasons, which I will shortly explain. Thus, I am prepared to assume without deciding the point that on the facts of this case, the presence of the CFA constituted a matter of prejudice to this particular defendant as if the claim had been brought in the 1990s, the claimant would not have been able to obtain the benefit of a CFA agreement. In other words, I will regard this as a factor in the defendants' favour when carrying out the balancing exercise in deciding whether to accede to the claimant's application.
(xii) The Relevance of a Possible Claim for Negligence against RAP
- I have considered whether I should take into account in determining whether to extend the limitation period the fact that the claimant might have a claim in negligence against RAP. Subject to the issue of limitation, the claimant would have had at least a reasonable claim against RAP on the grounds that they should have advised her in 1995 and 1996 that she was still within the primary limitation period and that she had or was likely to have a good cause of action in the light of Mr. Ward's evidence. Even on the assumption that such a claim could have been brought at one time by the claimant against RAP, the claimant would now be faced with a limitation issue as that claim against RAP would have become statute-barred by, at the latest, early 2002; there is no obvious way in which the limitation period for this claim against RAP could be extended under section 33 of the 1990 Act or otherwise as that claim against RAP (unlike the one against the defendants) would not be one for personal injuries. In any event, the quantification of any damages recoverable against RAP would be different from and less than any damages recoverable against the defendants. In all fairness to Mr. Rahman, I did not understand him to pursue this point, I suspect, because the claim against RAP would be unlikely to succeed. Thus, it cannot be said that if the limitation period is not extended, the claimant would not suffer serious prejudice because she could recover her losses against RAP.
VI Conclusion
- The claimant succeeds on the breach of duty and on the causation issues. Turning to the limitation issue and more particularly to the claimant's application to disapply the limitation provisions, I have sought to deal with the main points made by Mr. Rahman in his wide-ranging and impressive submissions but there are some factors which I must stress. First, it is important to appreciate that significantly, the burden of showing that it is equitable to disallow the limitation period is a heavy burden and that this rests on the claimant. Second, I have approached this limitation issue on the basis that it is an exceptional indulgence to a claimant to disapply the limitation period and that it should only be granted where equity between the parties demands it. Third, I bear in mind that "as a general rule of thumb, the longer the delay after the occurrence of the matters giving rise to the cause of action, the more likely it is that the balance of prejudice will swing against disapplication" (KR v. Bryn Alyn Community (Holdings) Limited [80(i)]). Fourth, I also take into account the fact that "the more cogent the claimant's case, the greater the prejudice to the defendant in depriving him of the benefit of the limitation period" (KR v. Bryn Alyn Community (Holdings) Limited [74(viii)]). In this case, the claimant has a very strong case on liability and causation for the reasons, which I explained in sections III and IV above. Finally "if the date of knowledge test in section 14 is properly applied so as to provide a claimant with an extension of the period by reference to it, the weight to be given to his reasons for delay thereafter should, in the normal circumstances, be limited" (KR v. Bryn Alyn Community (Holdings) Limited [80(iii)]).
- My task is to conduct a balancing exercise but having considered all the points put forward by Mr. Rahman as well as the particular and unusual facts of this case, I have concluded that the claimant is able to discharge this heavy burden on her in order to show that the primary limitation period should be disapplied. As I have already explained in paragraph 81 above, I have assumed and taken into account in the defendant's favour that on the facts of this case, the presence of the CFA constituted a matter of prejudice to this particular defendant because if this claim had been brought in the 1990s, the claimant would not have had the benefit of a CFA agreement. There are, however, many more powerful and overriding countervailing factors. As a result of the delay, the defendants have not, for the reasons which I have explained, been prejudiced in any material way in investigating the claim or in adducing evidence. Thus, the evidence which can be adduced by the defendants, in the wording of section 33(3)(b) is not "likely to be less cogent than if the action had been brought" within the primary limitation period. On the very unusual facts of this case and in the light of the personal circumstances of the claimant, I consider that for the reasons which I have explained, there were acceptable reasons why this claimant delayed pursuing her claim after late 1995 even though it is now clear that the claimant has a very strong case on liability even after taking account of the effect of the delay on the cogency of the evidence. As I have explained, the claimant also acted "promptly" to obtain advice and to pursue her claim on the two occasions on which she had grounds for optimism or for believing that she might have a good claim against the defendants, namely after speaking to Mr. Ward in 1995 and after seeing the television programme in 2002. Thus, notwithstanding the able arguments of Mr. Rahman, this application succeeds and I direct that the limitation provisions in section 11(4) of the 1980 Act shall not apply to the present claim for damages against the defendants.
