Andrew McNamara and Gareth McAloon consider the correct approach to section 33 of the Limitation Act 1980, three years on from the leading case of Carr v Panel Products (Kimpton) Limited [2018] EWCA Civ 190.

It is now three and a half years since the noise induced hearing loss case of Carr v Panel Products (Kimpton) Limited [2018] EWCA Civ 190 was decided by the Court of Appeal.

Time enough, one might think, for the essential message of McCombe LJ’s judgment to manifest itself in a revamped approach to the preparation of pleadings and witness statements in disease cases where the discretion under section 33 Limitation Act 1980 is in issue.

However, Particulars of Claim and witness statements still continue to appear in the time honoured tradition. Namely: the pleading amounts to little more than ‘the claim is in time and, if not, the Claimant will seek the Court’s discretion to disapply the limitation period’; and, when one turns to the concluding paragraphs of the Claimant’s witness statement, invariably one discovers that there is precisely no evidence, as an alternative, to explain why the Court should exercise that discretion.

In other words, the overwhelming trend remains that it is for the Defendant to provide evidence on prejudice, and for the Claimant to simply make submissions.

Consequently, unless it is the rare case in which there is a Reply, the scales of ‘prejudice’ often contain nothing on the Claimant’s side.

Since insidious disease cases frequently involve long since defunct organisations which have neither documents nor witnesses, the argument in relation to prejudice then becomes a virtual open goal for Defendants.

Since prejudice is neither self-proving nor made out merely by reference to the lost chance of bringing the proceedings, there needs to be some synergy between the Particulars of Claim/Reply and the witness statement.

Carr came relatively quickly after the judgment in the case of Carroll v The Chief Constable of Greater Manchester Police [2017] EWCA Civ 1992 in which the Master of the Rolls delivered a judgment which contained, at [42], what might be considered a section 33 ‘primer’.

Carroll takes the reader on a whistle stop tour of the relevant law, reminding us along the way that, amongst other things, ‘…the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant’ ([42(3)]).

From that it remains clear that there is an evidential requirement on both parties to demonstrate that their prejudice is the greater, with the overall evidential burden resting upon the party seeking the discretion, namely the Claimant.

So, the question is: what prejudice can one identify? The starting point comes in [48] and [49] of Carr.

After rejecting the suggestion that prejudice was confined to loss of the claim ([47]), McCombe LJ went on, in [48], to consider the view of the Master of the Rolls in Carroll regarding the burden and said this: ‘This must presume that factors of prejudice, beyond mere loss of the claim itself, can be advanced by a claimant in argument on the application of section 33 in any given case in order to satisfy that burden’.

At [49] McCombe LJ went on to point out that the Claimant ‘…did not raise, either in his pleadings or evidence, any specific issue of prejudice caused to him by the passage of time to meet the burden that was on him in this respect. Indeed, the witness statement said nothing at all as to why any discretion under the Act should be exercised in his favour’.

Therefore, bearing in mind that the Claimant is not going to be given the luxury of expanding on his/her witness statement at trial, if the documents just say ‘the claim is in time and if it is not I invoke section 33’ then the Claimant has failed to address either the Master of the Rolls’ point about burden or given the court anything upon which to hang a decision on discretion as directed by McCombe LJ.

The message clearly given in Carr was the frequent and repeated use of the word ‘burden’. A ‘burden’, in this context, needs to be discharged by evidence, not by speculation and submission based on inference.

Since McCombe LJ did not identify a list, what is the litigation prejudice in the context of section 33 which needs to be evidenced? The answer to that will plainly change from case to case and will be unique to the individual facts and circumstances of the parties to each case. That said, themes to think about may include the following:

  • Clearly what prejudice is not is a mere suggestion that the Defendant is not prejudiced in defending the claim: if there is delay on the part of the Claimant it can be said there is a lack of cogency by reason of the passage of time, disappearance of documents or witnesses or even the defendant company. Ultimately, the issue of the lack of prejudice to the Defendant is a negative argument to be run at trial rather than a positive case that can be set up in pleadings or statements.
  • One matter which regularly appears is that, essentially, the now defunct Defendant was the one who owed the duty and so, if it also benefits from the limitation defence, the original negligence or historical breach of statutory duty is simply compounded by the lack of documentation or witnesses. That is a form of prejudice to the Claimant but, absent some evidence to suggest incompetence/mendacity leading to the demise of the Defendant or its archive, it is merely a reflection of the vicissitudes of life: after all, companies come and companies go.
  • However, if the witness evidence of the Claimant is coherent and detailed (hours of work; machinery, tools, pathogen identified; ‘anger’ or exposure time has been reasonably accurately described; breaks; and so on) and is not revealed to be lacking by an engineer or occupational hygienist then it is clear that fairness can prevail even if there has been delay: if a compelling case is simply met with ‘we have no documents or witnesses’ then a truthful Claimant would be denied justice on every occasion a company was dissolved. In the same way that mere loss of the claim alone is not sufficient prejudice, neither should be the demise of the Defendant company.
  • In any disease claim brought by a Claimant during their working lifetime, the impact upon their livelihood can be dramatic since the condition may force a radical change of direction. That is something which can properly be evidenced in a statement, and, most likely through disclosure of relevant employment documents and wage information. Has the Claimant been forced to take less well-paid employment; to re-train; or to increase his/her borrowing as a result of the condition? Clearly those are identifiable and quantifiable items of financial prejudice that will have a lasting effect if the section 33 discretion is not exercised: they may also go towards meeting any suggestion that the claim is somehow disproportionate.
  • Likewise, the impact on quality of life, if properly evidenced and detailed by a Claimant, is something that could demonstrate the significance of the loss of the claim to the Claimant.
  • Broadly, it might also be said that if the claim cannot proceed against a tortfeasor, then the Claimant will be forced to seek financial assistance from the state. Clearly that would be prejudicial since it would shift the problem of the tortfeasor’s negligence onto the shoulders of the Claimant and, in turn, the DWP.
  • From the Defendant’s perspective, it is important to identify relevant watershed dates for the destruction of evidence such as administrator appointments; last known period of accounts; liquidations; strike offs from the Companies Register; dates of site closures; redundancies; or changes in the nature of the business. These are all events which may paint a picture of when evidential prejudice may have occurred, and the extent of it.
  • Likewise, because the Defendant may be in the position of trying to prove what it does not have, it is necessary to show that one is prejudiced in being able to evidence prejudice. This was emphasised in Kimathi v Foreign & Commonwealth Office [2018] EWCA Civ 2213. In that case, it was said by the Claimant that without knowing what the documents would have revealed, and therefore without being able to know the extent to which they would have covered matters pertinent to the case, the Defendant could not show prejudice. At [11], Longmore LJ rejected that argument and stated: ‘…if the defendant is prejudiced in being able to show prejudice that, in the circumstances of this very old case, is quite enough’.
  • Finally, where there is prejudice due to evidence being lacking or missing due to the passage of time, establishing when that prejudice probably occurred, and what it was a result of, is likely to be something for careful consideration. Therefore, the dates suggested above need to be incorporated into a statement. A useful example of that is the decision of Mann J in Gregory v HJ Haynes Limited [2020] EWHC 911 (Ch). In that case, the Court concluded that the delay caused by the Claimant not issuing his claim promptly, meant that all material prejudice had probably been suffered by the Defendant such that there was no ‘culpable’ prejudice to the Defendant by the Claimant’s inactivity. That was a powerful factor behind the exercise of the section 33 discretion.

Therefore, the take from all of this is that, in the context of an application pursuant to section 33 of the Limitation Act 1980, prejudice requires evidence. Without it, regardless of which side you represent, you risk arriving at trial without the necessary basis for any Judge to find in your favour.