The claimant's solicitors asked the court to extend the limitation period after the statutory three-year limitation passed (even they accepted there was "drift").

The application was granted and the case allowed to continue; but the claimant’s solicitors were criticised by Mann J in his judgment for their conduct and delay which he attributed solely “to the solicitors and not dilatoriness on the part of the claimant”.

What happened?

In Gregory v H J Haynes Ltd [2020] EWHC 911, the claimant is seeking damages from a previous employer. He had worked for the company as a builder for more than a decade to around 1972 and had been regularly exposed to asbestos. As a result he was now suffering from that historical exposure to asbestos having developed pleural thickening, and is at risk of developing mesothelioma and asbestosis.

The company itself was dissolved in December 1992. The claimant first knew about his disease in November 2008, the date of acquired knowledge for the purposes of the Limitation Act 1980, and instructed solicitors to make a claim the following March. From then on, the solicitors made a number of unsuccessful attempts to trace an insurer for the company, though this entire period was punctuated by various periods of inactivity.

In the meantime, the limitation period expired in November 2011. The identity of the insurer was eventually discovered in September 2014 and a letter of claim was sent to the insurer’s solicitors. The medical report was obtained in October 2016.
A claim form was sent to the county court in July 2017 and in September that year, the claim form was issued. The problem was, this was some six years out of time and an application was therefore made under section 22 of the 1980 Act to disapply the limitation period to enable the claim to proceed.

More could have been done

The district judge investigated the reasons behind the delay in starting the claim and questions of prejudice to the parties. He said much more could and should have been done since March 2009 to establish who the defendant’s insurer was – even after the limitation period had expired. Both the claimant and his solicitors knew the limitation clock was ticking and there appeared to be no good reason why the medical report relied upon was not obtained until October 2016.
More could also have been done to settle the claim. He also considered the effect of delay, prejudice and the effect on a fair trial and exercised his discretion to refuse extend the limitation period.

Appeal

The claimant appealed on the basis that the judge was wrong to characterise the delay as culpable, distorting the balancing exercise which had to be carried out under the 1980 Act; and the decision ought to have gone the other way.
Mann J agreed. He concluded that the district judge was in error in holding this to be culpable delay on the basis that something could and should have been done in that period to further the claim. It was not, for instance, possible to see what more the claimant could realistically and sensibly have done in this period. There was a dissolved and, even if restored, apparently penniless defendant.
The claimant could not be in any way to blame for the delay so it was wrong to characterise it as culpable on his part. This meant it was for Mann J to retake the decision – an exercise he said was heavily influenced by the question of relative prejudice, though not completely governed by it. He identified three key issues:

• delay and its reasons;
• prejudice to the parties; and
• the possibility of a fair trial.

He found that there was considerable delay. He also found that “there was gathering prejudice in the form of diminishing evidence throughout the whole of the period” since the claimant’s exposure, but by the time the insurers were identified all the real prejudice to the defendant had accrued (the same was probably true, he said, in relation to the claimant’s evidential case).

The judge also noted that the limitation issue would not have arisen had the claimant’s solicitors managed to identify the insurers and arranged for a restoration of the defendant to the register between 2008 and 2011. But that could not be done.
Had he tried to start proceedings in 2014 (or even at the start of 2015) and made this application then, it would have succeeded, so what should the effect of the passage of another two years or so be? Mann J concluded that the defendant’s evidential position was probably not worsened by that passage of time.

However, he said a claimant cannot expect to be able to delay as long as they like on the basis that prejudice is not being caused by further delay. Yet there will come a point at which the claimant's own delay, in those circumstances, will make it unfair to extend the period. Here, it was the claimant’s solicitors (not the claimant) who had delayed pursuing the claim for no good reason.

Mann J also commented that “… the good discipline which delays in a claim really requires would be compromised if parties and their solicitors could just become lazy on the footing that it does not really matter any more in terms of prejudice to the defendant”.

It was a close call here but “not quite close enough”. As the delay was apparently attributable to the solicitors and not dilatoriness on the part of the claimant himself, he was not prepared to deprive the claimant of disapplying the limitation period.
The appeal was allowed and the limitation period disapplied.
What does this mean

The ruling is a salutary lesson for personal injury lawyers to keep robust records of all attempts made to trace a defendant or its insurer, to avoid unacceptable delays in taking further steps in doing so and to be aware of any escalating potential prejudice.

Note Mann J’s statement in the ruling that “it will normally behove a claimant who discovers a late claim to get on with its pursuit”. You cannot delay as long as you like just because there is no identifiable prejudice.

And if you do, and an unsuccessful attempt to disapply the limitation period is made, there is the real risk of a professional negligence claim against you by the claimant.