No Limits- Extension of the Limitation period

(2005-05-04)

Limitation periods extended o


In the recently published decision of Kathleen Smith (Widow and administratrix of the estate of George Kenneth Smith, Deceased) v Ministry of Defence (2005) Mr Justice Silber allowed the Claimant to bring an action for damages despite expiry of the three year primary limitation period.

Background: The Claimant's husband died in May 1991 as a result of mesothelioma. Between 1960 and 1962 the Claimant's husband was exposed to asbestos dust by his Defendant employer, the Ministry of Defence. The Claimant established that the Defendant was in breach of its common law and/or statutory duty owed to her husband, and that such breach had caused the death of her husband. The key point in dispute (heard as a preliminary issue) was whether the Claimant was statute barred from bringing her claim in circumstances where she failed to commence proceedings until May 2004.

Key sections of the Limitation Act 1980 ("the Act"): In accordance with section 11(4) of the Act, the limitation period (for the purposes of this case) runs from the date of death, or, from the Claimant's date of knowledge (whichever is the later). "Knowledge" (section 14 of the Act) is knowledge (i) that the injury was significant, (ii) that it was attributable (in whole or part) to the act/omission said to constitute the breach of duty, and (iii) as to the identity of the Defendant. Section 33 of the Act confers discretionary powers on the Court enabling the Court to disapply the limitation period, subject to considerations of equity, and prejudice that might be caused to the parties.

Although the Claimant's husband died in May 1991, for a number of reasons the Court accepted the Claimant did not have the requisite knowledge (to satisfy section 14) to bring her claim until May 1995. That meant the primary limitation period within which the Claimant could bring her claim expired in May 1998.

Extension of the limitation period: In deciding whether to exercise its discretionary powers and allow the Claimant to proceed with her claim, the Court considered (i) the length of and reasons for the delay (ii) the effect on the cogency of evidence as a result of the delay (iii) whether the Claimant acted promptly and reasonably once she knew that the acts/omissions of the Defendant (to which the injury was attributable) might give rise to a claim and (iv) steps taken by the Claimant to obtain expert/legal advice.

Decision: Whilst acknowledging the extension of the limitation period was an exceptional indulgence, the Judge considered that equity demanded the Claimant be permitted to continue with her action against the Defendant. The delay in bringing the proceedings in 2004 did not prejudice the cogency of the Defendant's evidence (the Defendant did not retain records for more than 25 years, and the Defendant therefore would not have been in possession of relevant records even if the Claimant commenced proceedings in 1995, more than 30 years after the date her husband's employment with the Defendant had ceased). The delay of six years between 1998 (expiry of the limitation period) and 2004 (commencement of proceedings) did not cause the Defendant any material prejudice. This was a significant, though not decisive, factor.

Once the Claimant had knowledge that she might be able to bring a damages claim against the Defendant, she acted promptly and reasonably; she contacted solicitors and obtained advice within a few days of gaining the requisite knowledge. The Claimant's solicitors did not make the Claimant aware of her legal rights and she was not advised that she could likely overcome any limitation problems if she commenced proceedings in 1995.

As the Claimant had a very strong case on liability (notwithstanding the delay in commencing proceedings) and as she acted promptly to obtain legal advice and tried to pursue her claim once she gained requisite knowledge equity demanded that section 11(4) of the Act should not apply and the Claimant was permitted to proceed with her claim.