Young v Western Power Distribution (South West) Plc

This Court is once again required to decide upon the true reach of the House of Lords decision in Walkley -v- Precision Forgings Limited [1979] 1 WLR 606. Here, for the first time, the question arises in the context of a widow’s claim, a claim brought both under the Fatal Accidents Act 1976 (“the 1976 Act”) and under the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”).

Before seeking to identify the precise points at issue, it is convenient first to relate the facts of the case. This I propose to do quite shortly: to set them out in any great detail would, I believe, cloud rather than illuminate the real issues arising.

We are here concerned with two successive actions, the first begun by Barry Young (the deceased) against his employers (the appellants) on 6 January 1995 and discontinued by him on 17 January 1997, the second brought following his death at the age of 55 on 2 March 1999 by Jean Young, his widow and executrix (the respondent), on 22 May 2002.

The deceased worked for the appellants (originally called the South Western Electricity Board) from when he left school in 1959 until his retirement on medical grounds in January 1994. In the course of that employment he had been exposed intermittently to contact with asbestos from as early as 1961. After first becoming unwell in 1991 he was told by his treating specialist, Dr Forrester-Wood, a consultant thoracic surgeon, on 21 December 1993 that he had an asbestos related malignant mesothelioma. That advice was based substantially on a histological report by Dr Ibrahim suggesting the probability of mesothelioma but recognising that “the possibility of adenocarcinoma cannot be ruled out” and stating that further studies would be carried out and a supplementary report issued. A diagnosis of adenocarcinoma would not have supported an asbestos related industrial injury claim.

Following Dr Forrester-Wood’s report a letter of claim was written by Mr Young’s solicitors, Lawford and Co, on 7 April 1994 and, as already stated, proceedings were issued on his behalf on 6 January 1995.

Meantime, on 31 December 1993, Dr Ibrahim had carried out further studies and recorded that their results “would favour metastatic adenocarcinoma rather than malignant mesothelioma”. For whatever reason, this report did not at the time come to the attention of either the deceased, his solicitors, his treating doctor or Dr Rudd, the expert witness then instructed on his behalf who at that stage supported Dr Forrester-Wood’s diagnosis. Rather it came to light only in 1995 when the appellants themselves began to investigate the deceased’s condition. They first instructed Professor Newman-Taylor. He then brought in Professor Corrin who in turn contacted Dr Ibrahim and learned of his further studies in December 1993 and of his revised view of the case.

On 26 July 1996 the appellants disclosed their medical evidence which, unsurprisingly perhaps having regard to Dr Ibrahim’s report of 31 December 1993, concluded that the deceased was suffering from adenocarcinoma rather than mesothelioma so that no claim would lie. At the same time they invited Lawfords to “reconsider your client’s position”. Lawfords thereupon again consulted Dr Rudd who on 15 August 1996 wrote as follows:

“In the light of the further pathological studies and in particular Professor Corrin’s opinion I accept that there must be considerable doubt as to whether the diagnosis of mesothelioma was correct. However, it is notoriously difficult to distinguish between mesothelioma and adenocarcinoma on the basis of pleural biopsy specimens and it is often not until post mortem examination, when large amounts of tissue are available for inspection, that a definitive diagnosis is made.

If the tumour is mesothelioma, I remain of the view that, on the balance of probabilities, it was caused by asbestos exposure. I certainly do not accept Professor Newman-Taylor’s suggestion that a minimum of three months of heavy asbestos exposure is necessary to cause mesothelioma. Most experts agree that there is no convincing evidence for a threshold dose of asbestos below which there is no risk of mesothelioma.

If the tumour is adenocarcinoma it will not be possible to show that it was caused by asbestos exposure. As Professor Newman-Taylor points out, the site of origin is unknown. Even if it were established that it originated in the lung the history of asbestos exposure is not sufficiently substantial to form a basis upon which to conclude that asbestos exposure materially increased his risk of development of lung cancer.

In summary, Professor Corrin’s finding shed considerable doubt on the diagnosis of mesothelioma but I would not consider it safe to reach a final conclusion that he does not have mesothelioma until the results of post mortem examination are available.”

Having received that advice, Lawfords withdrew the action from the warned list and, on 17 January 1997, discontinued it, the appellants agreeing to bear their own costs of the proceedings.

Just over two years later, on 2 March 1999, the deceased died whereupon it was quickly discovered that he had after all been suffering from mesothelioma. This view was expressed by Dr Ibrahim in a letter dated 17 March 1999 and it was a view shared by other doctors also then consulted. An inquest took place in June 1999 and concluded that the deceased’s death had indeed been due to industrial disease. The death certificate gave his cause of death as mesothelioma. The deceased’s case, it is right to note, was an unusual one: death normally follows within 12 - 18 months of the first onset of symptoms, not, as here, some seven or eight years later.

In the light of the post mortem evidence the respondent widow brought fresh proceedings. She instructed different solicitors, Messrs Russell Jones and Walker. Mr Whitehead of that firm understood that the respondent had three years from the date of the deceased’s death to bring her action and left it until 25 February 2002 to attempt to do so. In the event there was a slip up in issuing the claim and proceedings were not effectively begun until 22 May 2002.

Besides contesting all aspects of liability, the appellants pleaded in addition that the respondent’s claims are statute-barred under ss11 and 12 of the Limitation Act 1980 (“the 1980 Act”). The respondent in reply sought the exercise of the court’s discretion under s33 of the Act to disapply ss 11 and 12.

On 25 September 2002 an order was made for the trial of a preliminary issue as to whether the respondent’s action should continue. That issue came before His Honour Judge Mackay sitting as a High Court Judge on 5 March 2003. He held, first, that, Walkley notwithstanding, a s33 discretion fell to be exercised in the case and, secondly, that it should be exercised in favour of the respondent so as to disapply ss 11 and 12 and allow her claim to proceed. The appellant employers now appeal to this court by permission of the judge below.

It will be important throughout this judgment to keep in mind the principal statutory provisions governing derivative claims of this nature and the time limits that apply to them. First, with regard to the 1934 Act claim, s1(1) of that Act provides, so far as material:

“… on the death of any person after the commencement of this Act all causes of action … vested in him shall survive … for the benefit of his estate.”

Section 11 of the Limitation Act 1980 deals with claims for damages for personal injuries and by subsections (4) and (5) provides:

“(4)

Except where subsection (5) below applies, the period applicable is three years from-

(a)

the date on which the cause of action accrued; or

(b)

the date of knowledge (if later) of the person injured.

(5)

If the person injured dies before the expiration of the period mentioned in subsection (4) above, the period applicable as respects the cause of action surviving for the benefit of his estate by virtue of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 shall be three years from-

(a)

the date of death; or

(b)

the date of the personal representative’s knowledge;

whichever is the later.”

Next, the governing provisions with regard to the Fatal Accidents Act claim. Section 1(1) of the 1976 Act provides:

“If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”

Section 12 of the 1980 Act imposes, as its heading states, a “Special time limit for actions under Fatal Accidents legislation”. So far as material it provides:

“12(1) An action under the Fatal Accidents Act 1976 shall not be brought if the death occurred when the person injured could no longer maintain an action and recover damages in respect of the injury (whether because of a time limit in this Act or in any other Act, or for any other reason).

Where any such action by the injured person would have been barred by the time limit in section 11 … of this Act, no account shall be taken of the possibility of that time limit being over-ridden under section 33 of this Act.

12(2) None of the time limits given in the preceding provisions of this Act shall apply to an action under the Fatal Accidents Act 1976, but no such action shall be brought after the expiration of the three years from-

(a)

the date of death; or

(b)

the date of knowledge of the person for whose benefit the action is brought;

whichever is the later.

12(3) An action under the Fatal Accidents Act 1976 shall be one to which sections … 33 … of the Act apply …”

Finally, and with regard to both elements of the claim, I must set out the most directly relevant parts of s33 of the 1980 Act:

“33(1) 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 … or 12 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.

(2)

The court shall not under this section disapply section 12(1) except where the reason why the person injured could no longer maintain an action was because of the time limit in section 11 …

If, for example, the person injured could at his death no longer maintain an action under the Fatal Accidents Act 1976 because of the time limit in Article 29 in Schedule 1 to the Carriage by Air Act 1961, the court has no power to direct that section 12(1) shall not apply.

…

(6)

A direction by the court disapplying the provision of section 12(1) shall operate to disapply the provisions to the same effect in section 1(1) of the Fatal Accidents Act 1976.”

There has been no dispute before us as to the relevant dates of knowledge, respectively the knowledge of the deceased for the purposes of s11(4) of the 1980 Act and that of the respondent for the purposes of ss11(5) and 12(2).

So far as the deceased was concerned, his date of knowledge is now agreed to have been 21 December 1993 when he was told that he was suffering from asbestos related mesothelioma on the strength of which advice his solicitors wrote a letter of claim and commenced proceedings on his behalf. Section 14(1) of the 1980 Act defines the date of knowledge, so far as relevant, as the date on which the person concerned “first had knowledge of … [the fact] 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”. Although the respondent sought to argue below that the deceased should not be held to have had that knowledge given the later radical change in the expert’s advice, that argument was rejected and has not been pursued afresh before us. Rather Mr Foy QC for the respondent accepts that we are bound to apply the law as decided by this court in Nash -v- Ely Lilly [1993] 1 WLR 782 where, at p795, Purchas LJ dealt with the point. He referred to “the contention that if a claimant is shown to have knowledge … that his injury is attributable to the act or omission of the defendant, the subsequent obtaining of expert advice for the purpose of legal proceedings which says that the injury is not so attributable could retrospectively cause him never to have had such knowledge”, and continued: “We do not accept that the contention is arguable. It seems to us in conflict with the words of the statute”. However unsatisfactory we may think that to be, it necessarily follows that the primary three-year limitation period for the deceased’s own personal injury claim expired on 21 December 1996, shortly after the appellants’ medical evidence was served, and shortly before the first action was discontinued.

So far as the respondent is concerned, her date of knowledge is agreed to have been in about March 1999 when, very shortly after the deceased died, his mesothelioma was finally diagnosed. Certainly it was before 22 May 1999, three years prior to when the second action came to be effectively issued.

From all this it follows that at the preliminary hearing the respondent had to establish not only that the court had a discretion to be exercised under s33 (the Walkley point) but also that it should be exercised in her favour both (a) so as to disapply s11(4) which would otherwise have barred the deceased’s claim and stop a 1934 Act claim accruing to her and (b) so as to disapply ss 11(5) and 12(2) which would otherwise bar respectively her 1934 Act claim and her 1976 Act claim.

It is at this stage that I must introduce the Walkley principle into the debate, albeit I propose to do so without the usual copious citation of authority.

Walkley itself concerned a plaintiff’s attempt to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution. The House of Lords held that he could not do so: he was not prejudiced by the primary limitation period since he had properly issued his initial claim within it; there was accordingly no discretion to be exercised under s33 which by subsection (1)(a) postulates that the primary limitation provisions “prejudice the plaintiff”. As I observed in Shapland -v- Palmer [1999] 1 WLR 2068, 2070-2071:

“The Walkley principle - as subsequently explained by the House of Lords in Deerness -v- John R. Keeble & Son (Brantham) Ltd. [1983] 2 Lloyd's Rep. 260 and as recognised by this court in Forward -v- Hendricks [1997] 2 All ER 395 - is to be found in the following passage from Lord Wilberforce's speech in the Walkley case [1979] 1 WLR 606, 609:

‘The provisions of section 2A’ - now section 11 - ‘are those which require an action for personal injuries to be brought within three years. So subsection (1)(a)’ - now section 33 - ‘must be contemplating a case in which, because the three years have expired without an action being brought, section 2A applies to the prejudice of the plaintiff. But if the plaintiff has brought his action within the three years, how has he been prejudiced by section 2A? This I fail to understand. If this argument is sound, the respondent's case fails in limine. He brought his first action within the normal limitation period, and if he has suffered any prejudice, it is by his own inaction and not by the operation of the Act.’

Lord Wilberforce was there saying that as a matter of construction the particular prejudice to which the section 33 discretion is directed is that occasioned by the plaintiff not having issued his proceedings within the primary three-year limitation period. Once he has issued his proceedings within that period, then, for whatever reason they have ceased to exist - whether through failure to serve, strike out for want of prosecution, or discontinuance - section 33 simply has no application.

Although Lord Wilberforce observes that any prejudice resulting from the ultimate ineffectiveness of the first proceedings is due rather to the plaintiff's inaction than to the Act (i.e. the proceedings not having been issued in time), this observation seems to me strictly outside the ratio. It is, after all, plain that the section 33 discretion arises notwithstanding a plaintiff's solicitors' perhaps far greater negligence in failing ever to have issued proceedings within the primary limitation period in the first place. Indeed, as Lord Diplock expressly recognised in Thompson -v- Brown [1981] 1 WLR. 744, 752 that is an undoubted anomaly arising from the Walkley principle.”

Waller and Clarke LJJ both agreed with my judgment, Clarke LJ adding at p2076-2077:

“I am not sure whether it was argued in the Walkley case or in any of the later cases that on the true construction of section 33(1) the action there referred to must be the second action and not the first, as in my opinion must be the case. However that may be, as Simon Brown LJ. has pointed out, the House of Lords has decided that the passage which he has quoted from the speech of Lord Wilberforce is to be taken as stating the relevant principle.”

Rightly or wrongly I there described the Walkley principle as “rest[ing] upon a narrow and somewhat technical construction of section 33” and accordingly ruled that “the section 33 discretion arises in all cases save those which fall four-square within the Walkley principle”. That appeared to me consistent with what I called the McEvoy line of authority (see McEvoy -v- AA Welding and Fabrication Ltd [1998] PIQR p266) of which I said at p2073:

“This establishes that where a first writ issued within the primary limitation period is itself ineffective (although not a nullity) through having been issued variously without consent against a company in liquidation (as in the McEvoy case [1998] P.I.Q.R. P266 itself), or through being issued against an unincorporated association in its own name (White -v- Glass, The Times, 18 February 1989; Court of Appeal (Civil Division) Transcript No. 140 of 1989), or through being issued against a company which had been struck off the register (In re Workvale Ltd. [1992] 1 WLR. 416), the Walkley principle does not apply to defeat in limine a second action, notwithstanding that in each of those cases the defect was recognised to be curable: in the McEvoy case [1998] P.I.Q.R. P266 by the late grant of leave; in White -v- Glass, The Times, 18 February 1989 by substituting the names of representative members; and In re Workvale Ltd. [1992] 1 WLR. 416 by having the company restored to the register.”

We decided that Shapland -v- Palmer itself fell within the same exempting principle since the claimant’s second action had been brought not, as the first action, against a company, but rather against a personal defendant (for whose negligent driving the company had earlier been sued as vicariously liable).

More recently this court applied that same line of authority in Piggott -v- Estate of Aulton (deceased) [2003] EWCA Civ 24 to permit a second action to be brought out of time against the estate of a deceased person notwithstanding that a timeous first action (subsequently discontinued through a failure to secure the appointment of a representative for the estate) had also been brought against “the estate of the deceased”. Arden LJ there explained in paragraph 21 of her leading judgment how the first action had been “brought against a person without legal personality” pursuant to the “legal device” provided for by CPR 19.8(2)(b)(i) (see too my own judgment in the case at paragraph 35) and so was not strictly to be regarded as brought against the same party as the second action.

Thus far I have been looking at the Walkley principle as a rule of construction - a decision by the House of Lords that s33 confers a discretion to disapply statutory time limits only in those cases where the claimant has been prejudiced by not having issued proceedings within the primary limitation period - and I have been examining the later cases to see just what scope exists for excluding second actions from its grip. As, however, will become clear when I turn to Mr Foy’s arguments on the appeal, it is necessary also to consider what scope there may be for simply not applying the Walkley principle in “exceptional circumstances”. The starting point for consideration of this question is Lord Diplock’s speech in Walkley itself at p619:

“My Lords, in my opinion, once a plaintiff has started an action (the first action) within the primary limitation period it is only in the most exceptional circumstances that he would be able to bring himself within section 2D in respect of a second action brought to enforce the same cause of action. If the first action is still in existence, as it was in the instant case when the matter was before the master and the judge, cadit quaestio; he has not been prevented from starting his action by section 2A or section 2B at all, so the provisions of those sections cannot have caused him any prejudice. Does it make any difference that the first action is no longer in existence at the time of the application under section 2D either because it has been struck out for want of prosecution or because it has been discontinued by the plaintiff of his own volition? In my view, it does not. These are self-inflicted wounds. The provisions of section 2A caused him no prejudice at all; he was able to start his action. The only cause of the prejudice to him in the case of dismissal for want of prosecution is dilatoriness which took place after the action was started whether on his own part or on the part of his legal advisers. In the case of discontinuance the only cause of the prejudice is his own act.

The only exception I have been able to think of where it might be proper to give a direction under section 2D, despite the fact that the plaintiff had previously started an action within the primary limitation period but had subsequently discontinued it, would be a case in which the plaintiff had been induced to discontinue by a misrepresentation or other improper conduct by the defendant; but there is no suggestion of this in the instant case.”

Importantly, Lord Diplock returned to the question of exceptional circumstances in Deerness -v- Keeble & Son [1983] 2 Lloyd’s Reports 260 where, at p262, he said this:

“Faced with the unanimous decision of this House in Walkley -v- Precision Forgings Ltd [1979] 1 WLR 606 that a plaintiff who has actually started an action before the expiry of the primary limitation period has not been prejudiced by what are now the provisions of s11 of the Limitation Act 1980, and therefore cannot bring himself within the provisions s33(1), the learned judge seized on a passage in my own speech in that case in which, with customary caution, I had left open the possibility that there might be some ‘most exceptional circumstances’ in which the plaintiff might be allowed to proceed after the expiry of the primary limitation period despite the fact that he had brought an action for the same cause of action before the three-years primary limitation period had expired. I added that the only exception I had been able to think of -

‘… would be in a case in which the plaintiff had been induced to discontinue by a misrepresentation or other improper conduct by the defendant.’

Walkley’s case was one of discontinuance of proceedings, and the example that I gave is perhaps more accurately characterised as an estoppel from relying on s11 of the Act rather than a disapplication of that section upon a direction of the Court made in the exercise of the discretion conferred upon it by s33, in the making of which direction the Court must have regard to the matters specified in s33(3). Whether a defendant is estopped or not is a question of law. It is not a matter of discretion for the Judge. Sir John Donaldson, MR pointed this out in his judgment in the instant case. The rationale of the rule laid down by this House in Walkley’s case did not logically admit of any exceptions.”

That final sentence seems to me (if I may respectfully say so) not merely self-evidently correct but of crucial importance in determining the true limits of the “most exceptional circumstances” to which Lord Diplock had earlier referred in Walkley. If s33 is construed as simply not applying where a first action based on the same cause of action has been timeously begun, that meaning cannot change irrespective of how blameworthy the defendants may have been with regard to the failure of the first action. The only exceptional cases, therefore, are those where it would be unconscionable for the defendant to raise a Limitation Act defence to the second action and, as Lord Diplock explained in Deerness, these are not, therefore, cases where exceptionally a discretion does after all arise under s33 but rather cases where the defendants are estopped from relying on the primary limitation period in the first place.

I can at last proceed to identify and consider the four issues still remaining alive on this appeal. I list them in the order in which logically they arise for consideration:

The judge below decided issue i) in favour of the appellants, issues ii) and iv) in favour of the respondent. He accordingly did not need to consider issue iii). The appellants appeal on issues ii) and iv); issues i) and iii) arise under the respondent’s cross-notice.

This to my mind is the critical issue on the appeal and it seems to me by no means a simple one. Certainly the arguments developed before us, often prompted by the Court’s own thinking, appear to have taken a very different course from those addressed below. I shall accordingly not spend time considering Judge MacKay’s judgment on the point but rather proceed at once to consider the problem as it now appears. It is convenient to do so by reference to each element of the claim in turn, first the dependency claim under the 1976 Act and then the 1934 Act claim.

On the face of it s12(1) operates to bar this claim: when the deceased died he could no longer have maintained an action and recovered damages in respect of his injuries because of a time limit in the Act, namely because of s11(4). The second paragraph of s12(1) prevents any account being taken of the possibility that the deceased could successfully have invoked s33 to overcome the s11(4) time bar. Even had it not done so, in the particular circumstances of this case the Walkley principle (subject, of course, to issues ii) and iii)) would have prevented the deceased at that stage from bringing a second action.

Accordingly, the respondent herself needs to invoke s33 to disapply s12(1). As pointed out above, the respondent also needs to invoke s33 to disapply the further time bar to her 1976 Act claim constituted by s12(2), but for present purposes we can ignore this: the Walkley principle presents no relevant obstacle in that regard. I have no difficulty in accepting Mr Foy’s argument that the Fatal Accidents Act claim involves a different cause of action brought by a different party and does not represent an action which the deceased himself might have brought. The Walkley principle therefore has no application to that aspect of the case. (The reference in the second paragraph of s33(2) of the 1980 Act to “the person injured” himself “maintain[ing] an action under the Fatal Accidents Act 1976” I confess to having found puzzling.)

The central question, therefore, is: can the respondent invoke s33 to overcome the bar to her 1976 Act claim apparently constituted by s12(1)? To answer that question one must turn initially not to Walkley but to s33 itself and more particularly to s33(2). Let me for the sake of convenience repeat here the main part of that provision: “The court shall not under this section disapply section 12(1) except where the reason why the person injured could no longer maintain an action was because of the time limit in section 11”.

The question to be asked is accordingly this: was the reason why the deceased “could no longer maintain an action … because of the time limit in s11”? Mr Foy submits that it was and that s33 can therefore be invoked to disapply s12(1). Mr Burton QC for the appellants submits to the contrary that the reason why the deceased at the date of his death could not have maintained an action was not because of the s11 time limit but rather because of Walkley.

Although I reach my conclusion with no particular enthusiasm, I have to say that I think Mr Burton is right. Test it this way. Assume that just before his death the deceased had finally learned that he was after all suffering from mesothelioma and had sought to bring a second action to advance his claim. He would then have been met by a s11 Limitation Act defence which in turn he would have sought to overcome by invoking s33. At that state, however, Walkley would have stood four-square in his path and (subject always to issues ii) and iii)) his claim would have been defeated. The rationale of the Walkley principle is, as already explained, that it is not the time limit in s11 which prejudices the claimant in such circumstances but rather the fact that he had previously commenced timeous proceedings which, for whatever reason, were not then successfully pursued. True, the reasoning of the House of Lords went directly to the true construction of s33(1) rather than 33(2). But if in circumstances where the claimant has brought, albeit then discontinued, a timeous action he is not to be regarded as “prejudiced” by s11, it seems to me impossible to conclude that s11 is nevertheless to be regarded as “the reason why” he was not then able to maintain his second action.

Mr Foy’s final formulation of his argument on this part of the case was reducing to writing as follows:

“1.

s12(1) If the deceased could not bring an action for any reason, the claimant cannot do so. In deciding whether the deceased could bring an action, ignore possibility of s33.

2.

s33(2) If the reason for the deceased not being able to bring an action was s11, the claimant can rely on s33.

3.

Walkley is saying deceased could not rely on s33 anyway, but by s12(1) possible reliance on it is irrelevant.

4.

The day before he died, it was s11 which prevented the deceased bringing an action. If he had done so, the answer would have been s11 - so it is s11 which is the reason he could not maintain an action.

5.

Walkley says that if the deceased sought to rely on s33 he could not do so because he was not prejudiced by s11, and so could not rely on s33, but the deceased had not reached that stage - he had not applied under s33 and the possibility that he might has to be ignored [s12(2) 2^nd para].

6.

Therefore, Mrs Young is prejudiced by s12. This is not a Walkley case and the court has a s33 discretion in her Fatal Accidents Act claim.”

That argument, ingenious though it is, is not one I feel able to accept. To my mind it places altogether too much weight on the second paragraph of s12(1) which appears to me to serve a wholly different purpose and to have no part to play in determining the true construction and application of s33(2).

I therefore conclude (again subject always to issues ii) and iii)) that the respondent’s 1976 Act claim is indeed statute barred, effectively as a result of the Walkley principle. And I reflect that, given the existence of this principle, it would be surprising were it otherwise: if a second claim by the deceased himself would necessarily have failed, by what possible logic should his widow’s claim succeed?

On the face of it, the respondent’s 1934 Act claim is barred twice over by s11: s11(5) simply has no application where, as here, the injured person died after, rather than before, the limitation period specified in s11(4) - see its opening words. And in any event, even assuming that s11(5) applied, the respondent herself then sued out of time.

Again, therefore, the respondent must resort to s33 to seek the disapplication of s11. But can she do so? Again, it would seem to me bizarre if the respondent could now successfully invoke s33 when plainly the deceased himself, because of Walkley, could not have done so. And it would be odd too if, despite the 1976 Act claim failing (as I have concluded it must), the respondent could nevertheless sustain her 1934 Act claim. To my mind, however, it is clear that she cannot. What s1(1) of the 1934 Act provides is that where someone dies with a cause of action vested in him that cause of action shall survive for the benefit of his estate. Here, in my judgment, no cause of action was vested in the deceased when he died. The Walkley principle made it impossible for him to have pursued again the self-same cause of action which he had already discontinued. The respondent in this regard is in no better position that the deceased: she can only assert a cause of action surviving for the benefit of the deceased’s estate. Representing his estate as she does, she stands in the same position as he had stood and there is thus no question of distinguishing Walkley on the footing either that the cause of action or that the parties are now different.

From all this it follows that I would hold the Walkley principle (subject to the further issues to which I now turn) fatal to the entirety of the respondent’s action.

The respondent’s submissions on this issue became intertwined with an argument perhaps more logically falling for consideration in connection with issue i), Mr Foy’s contention that the true ratio of Walkley is not as I have suggested above, but is rather that a claimant who earlier issued timeous proceedings is not to be regarded as prejudiced by the primary limitation period where, but only where, his prejudice can instead be ascribed to his own (or his lawyers’) fault in not carrying the first action to a successful conclusion.

That is not an argument I can accept. True it is that Lord Wilberforce spoke of any prejudice suffered in Walkley as being “by his own inaction” (see the passage from his speech cited in paragraph 23 above) and Lord Diplock described the ending of proceedings by strike out for want of prosecution or by voluntary discontinuance as “self-inflicted wounds” (see paragraph 28 above). In my judgment, however, that was not necessarily to imply criticism of those concerned: a finding of fault or blameworthiness on the part of the claimant is not a precondition for the application of the Walkley principle and, as I observed in Shapland -v- Palmer (see the final paragraph of the citation of my judgment there in paragraph 23 above), Lord Wilberforce’s observation “seems to me strictly outside the ratio”.

In any event there appears to me a cogent argument available to the appellants here (and it would be available to the respondent too in subsequent proceedings if her case fails on the present appeal) that there was indeed a degree of fault on the part of the deceased’s solicitors, Lawfords, in having discontinued the first action without in any way seeking to protect the interests of their client’s estate were an eventual post-mortem examination to reveal, as Dr Rudd in his letter of 15 August 1996 (see particularly the first and last paragraphs quoted in paragraph 7 above) so clearly envisaged and advised might prove to be the case, that the deceased was after all suffering from mesothelioma. Lawfords are not, of course, parties to this appeal nor, obviously, are their interests being protected (save insofar as Mr Foy, in the respondent’s interests on this appeal, has sought to contend that she would have difficulty in advancing a negligence claim against either firm of solicitors involved in these successive actions). I content myself, therefore, with observing only that in the light of Dr Rudd’s prescient advice and the Walkley principle, Lawfords might reasonably have been expected, instead of merely discontinuing the action unconditionally (save as to costs), either to have imposed terms on discontinuance such as would have precluded any subsequent Limitation Act defence or alternatively, failing that, to have applied for the action to be stayed, if need be until after the deceased’s death.

What then, apart from a contended-for want of fault on the deceased’s part in the discontinuance of the first action, are the exceptional circumstances sought to be prayed in aid by the respondent? Essentially, as it seems to me, they come to this. It was singularly unfortunate that events here unfolded in the way they did. If only Dr Ibrahim’s report of 31 December 1993 had come to light earlier, the first action would in all probability never have been started so that the problem created by discontinuance in the light of the Walkley principle would never have arisen. The respondent has been disadvantaged too by what with hindsight can be seen to have been the mistaken earlier diagnosis and also by the unusually protracted course of the condition leading to the deceased’s death. Whilst, however these are all circumstances of clear relevance if and when it comes to the exercise of the court’s discretion under s33, I can find in them nothing to support the view that the appellants’ conduct has been open to criticism at any stage so that it would now be unconscionable for them to invoke the Limitation Act defence to the second action, let alone anything to create a legal estoppel such as Lord Diplock in Deerness held could alone operate to escape the impact of the Walkley principle.

At one stage of his argument Mr Foy submitted that the discontinuance of the first action here was caused by the appellant’s misrepresentation (albeit innocently made) that the deceased was in fact suffering from adenocarcinoma rather than mesothelioma. The language of misrepresentation, however, seems to me wholly inappropriate in this context: all that the appellants did was properly to disclose the medical evidence then available to them. They were, indeed, bound to do so. And there can be no possible criticism of them for inviting the claimant to reconsider his position in the light of that evidence, more particularly given that they had had the benefit of Dr Ibrahim’s December 1993 report which, surprisingly, the claimant’s own expert had not.

The most recent case on “exceptional circumstances” is the first instance judgment in Clay -v- Chamberlain [2002] EWHC 2529. In paragraph 28 of her judgment Cox J characterised the defendant’s conduct there (which I need not describe) as “though not improper, sufficiently blameworthy to result in a situation which was at any rate analogous to an estoppel and sufficient therefore to bring it within the category of ‘most exceptional circumstances’ which Lord Diplock had envisaged in the Walkley”. Whether or not that approach was consistent with Deerness, as to which, in common with Arden LJ in paragraph 26 of her judgment in Piggott, I prefer to express no concluded view, it cannot possibly extend to encompass the respondent’s very different case here. I add only that Judge Mackay below appears to have found exceptional circumstances to exist here simply because of the claimant’s difficulty, as he saw it, in establishing negligence, at any rate easily, against the solicitors who discontinued the initial claim. That, clearly, is an impermissible approach.

Plainly if the House of Lords construction of s33 were to operate incompatibly with the respondent’s right of access to the court under Article 6 then, consistently with the Court’s duty under s3 of the Human Rights Act 1998, we must construe it afresh in such a way as not to bar her action. It would clearly be “possible to do so” within the meaning of s3. Indeed, it would not be in the least difficult having regard to the criticisms made of Walkley over recent years. But, of course, there can be no question of this court declining to follow Walkley unless we were to conclude that the principle for which it stands does indeed breach Article 6.

Article 6 provides that:

“In the determination of his civil rights … everyone is entitled to a fair … hearing …”

As the ECtHR held in Ashingdane -v- United Kingdom (1985) 7 EHRR 528, that entitlement embodies a right of access to the court. It is Mr Foy’s submission that to deny the respondent here the possibility of a favourable exercise of discretion under s33 is to adopt a needlessly and unfairly inflexible approach to the three year limitation period ordinarily applying to personal injury claims. It is, he argues, a disproportionate response to the aim, however legitimate this may be, of providing some degree of certainty and finality in litigation. Equity can be achieved here, he submits, by the proper exercise of the s33 discretion. It is artificial and anomalous to operate a blanket ban on the exercise of such a discretion simply because, in a particular case, there has been a prior timeous claim brought which, for whatever reason, has not been pursued.

Tempting though it is to succumb to these submissions, I feel unable to do so. To my mind Stubbings -v- UK (1997) 23 EHRR 213 is fatal to their success. The House of Lords had held in Stubbings -v- Webb [1999] 3 AC 498 that in the case of deliberate assaults including rape and indecent assault any civil action brought by the victim falls outside the ambit of s11 and accordingly attracts the primary limitation period of six years to which non-personal injury actions founded in tort are subject under s2. This meant that the limitation period for such claims could not be extended under s14 irrespective of the person’s date of knowledge and furthermore that no discretion was available to extend the limitation period under s33. The claimants argued in Strasbourg that this ruling violated Article 6 in that the inflexible six year period could not be said to pursue a legitimate aim and be proportionate to it. In rejecting this submission the Court said this:

“48.

… this right [the right to institute proceedings] is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim to be achieved.

49.

It is noteworthy that limitation periods in personal injury cases are a common feature of the domestic legal systems of the Contracting States. They serve several important purposes, namely to ensure legal certainty and finality, to protect potential defendants from stale claims which might be difficult to counter, and to prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have been unreliable and incomplete because of the passage of time.”

Having then observed that in the circumstances of that case “the very essence of the applicants’ right of access to a court was not impaired” and that the time-limit in question was not unduly short, the Court continued:

“53.

The contracting states properly enjoy a margin of appreciation in deciding how the right of access to courts should be circumscribed. It is clear that the United Kingdom legislature has devoted a substantial amount of time and study to the consideration of these questions. Since 1936, there have been four statutes to amend and reform the law of limitation and six official bodies have reviewed aspects of it. The decision of the House of Lords, of which the applicants complain, that a fixed six-year period should apply in cases of intentionally caused personal injury was not taken arbitrarily, but rather followed from the interpretation of the Limitation Act 1980 in the light of the report of Tucker Committee upon which the Act had been based.”

True it is, as Arden LJ noted in paragraph 26 of her judgment in Piggott, that the Law Commission’s Report on Limitation of Actions has recently recommended an end to the Walkley principle and that the government has accepted that recommendation in principle and stated in Parliament that it will introduce legislation when a suitable opportunity arises. It by no means follows, however, and I cannot accept, that whilst the Walkley principle continues to hold good under domestic law the UK are to be regarded as violating the Article 6 rights of those affected by it.

There is a further point to be made in this regard. As Mr Burton submits, it is the Walkley principle alone which prevents a defendant from being sued not merely twice for the same alleged offence but on the second occasion after the expiration of the primary limitation period. The principle may after all not be quite so anomalous and unfair as hitherto it has been characterised. Either way, it seems to me for Parliament or the House of Lords rather than for this court by reference to Article 6 to reverse the rule.

Given my conclusions on the first three issues, issue iv) does not arise for determination so that it is strictly unnecessary to say anything about it. I should, however, record that all three members of the Court reached a clear view at the hearing that it would be quite wrong for us to interfere with the exercise of the judge’s discretion below (assuming, of course, contrary to my view that he in fact had such a discretion) and, indeed, we found it unnecessary to call on Mr Foy on this particular issue. I have, therefore, omitted from my earlier recitation of the governing provisions of the 1980 Act subsections (3) and (4) of s33 which would ordinarily be of central importance with regard to the exercise of the s33 discretion; nor do I propose to rehearse the process of reasoning by which Judge Mackay reached his final conclusion on the issue. Suffice it to say that there are certain singular features of this case (already sufficiently adverted to above) which would quite properly incline almost any tribunal to disapply the strict limitation provisions and to allow this widow’s claim to proceed unless there were some compelling reason to the contrary. Having concluded, as he did, that the cogency of the evidence available to the appellant’s now is little different from what it would have been in the mid-1990s (when, perhaps, on the strictest application of the primary limitation provisions the deceased’s personal injury claim might theoretically have been litigated) I for my part find it hardly surprising that Judge Mackay upheld the respondent’s case on this issue. No more need be said about it.

Having regard to my conclusions on the first three issues it follows that I for my part would hold that no discretion arose under s33, that the respondent’s claims are accordingly time-barred under ss11 and 12 of the 1980 Act and that accordingly this appeal must be allowed and the judge’s order below set aside.

I agree.

I also agree.