Friday, 31 October 2003

1. LORD JUSTICE SCHIEMANN: Lord Justice Jacob will give the first judgment.

2. LORD JUSTICE JACOB: This is an appeal from a decision of His Honour Judge Holman given in the Manchester County Court on 2 July 2003. The claimant sued the defendants for personal injury, namely bladder cancer, which he alleges were caused by exposure to hazardous chemicals whilst employed by the defendants during the period 1977 to March 1984.

3. The defendants, not surprisingly, took a limitation point, the cancer having been diagnosed in 1990 while these proceedings only commenced on 17 December 2003. The judge determined the limitation point in the claimant's favour.

4. Under section 11 of the Limitation Act the applicable limitation period is, so far as this case is concerned, three years from "the date of knowledge of the person injured". (See section 11(4)). Section 14 deals with the person's date of knowledge. The judge, after going into the facts, held that the claimant acquired the requisite knowledge in the summer of 1995. Permission to appeal that finding and to substitute an earlier date for the requisite knowledge was refused by Longmore J. It follows that the limitation period expired in the summer of 1998. The delay in issuing proceedings is some four and a half years after that.

5. Having decided the date of knowledge, the learned judge went on to consider whether it would be nonetheless equitable to allow the action to proceed as provided for in section 33(1) of the Act. This reads:

"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 11A 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."

6. Section 33 gives detailed guidance as to what must be considered. By section 33(3) it is provided 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, by section 11A or (as the case may be) by section 12;

(b) 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) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(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."

7. The judge very carefully went through all the facts. It is common ground that he made one minor error (which it was not suggested make any significant difference). Apart from that there is no complaint as to any of his findings of primary fact. It shows how the claimant's knowledge of his case and of its strength developed over the years.

8. By 1995, it is fair to say that although the claimant knew he had a case, it was not thought to be a strong case, one with sufficient prospects to justify starting proceedings. That remained the position until the claimant learnt of a further case of bladder cancer of a former worker of the defendants. He knew of one in 1995, although for some period he was not able to use that information because it was under a seal of confidence. What made the big difference and caused the claimant to assess that his prospects were worth commencing proceedings was his learning of the third case. That was put to the consultant, Mr Clark, who produced a third report in June 2002 which concentrated on the statistical probabilities of three employees in the same place developing the same disease. It was that report which gave the claimant sufficient confidence in his case to commence these proceedings.

9. The judge went through all the various items enumerated in section 33(3). He took into account the problems facing the defendants who had to deal with a case going back so many years, and in particular the problem which they might have in showing that proper precautions were taken and proper instructions were given as to when those precautions should be taken into account. He particularly looked at any change in the defendant's position between 1998 when the action would have been started timeously and when it was started in 2002. He said in paragraph 37 of his judgment:

"The conduct of the defence and the further documentation which the defendant was able to locate in its own files very shortly before the hearing is illuminating. The reality is that the defendant cannot say that it has destroyed a whole raft of documentation in the intervening period. Mr Milroy's letter"

- Mr Milroy was a key potential witness for the defendant -

"of 19th February 1999 to Mr Unsworth is important as is the fact that the defendant failed signally to comply with a court order made in March 1990 regarding disclosure"

- that is a reference to potential disclosure in another action brought by one of the other employees who suffered bladder cancer -

"and found itself facing a strike-out application. It is difficult to see what better evidence Mr Milroy might have been able to give in, say, May 1998. Mr Hartland refers to documents having been destroyed in the [late] 80s or early 90s. If that is right then the defendant destroyed relevant documents whilst still facing Mr Cooke's claim."

Mr Cooke was one of the other employees who had contracted bladder cancer.

10. So the judge examined precisely the position of the defendants, the difficulties they faced, and the effect of the delay. He took into account that the defendants were aware of the claim and had had the opportunity of investigating it. There is nothing I can see in his judgment suggesting that he forgot about that when it came to the critical part of his judgment which is, as is common ground, contained in paragraph 44. This is what he said:

"I turn then to all the circumstances of the case. In this context there is, as I see it, an important further factor and that is Mr Smith [ie the third employee]. One has only to look at Mr Clark's third report to see that the focus of the claim has shifted. Consideration of documents and the recollection of witnesses have ceased to become so central. The claimant's claim is now much stronger because he can advance it by reference to the medical evidence about the cluster. If the case proceeds the defendant will still be entitled, if it so wishes, to seek to challenge the conclusion derived from the medical evidence. Whether it will actually choose to do so, given the comments which Mr Garland made back in 1991, is another matter; but the fact remains that it is open to the defendant to obtain its own medical evidence."

11. When permission to appeal was given in this case it was given on the basis that there was a point involving the fact that the third employee, Mr Smith, was suing and his claim was not statute-barred. That point, the basis upon which permission to appeal was given, has not been pursued by Mr John Williams, who conducted this appeal attractively and persuasively. His point is a different point. He says the judge fell into error in paragraph 44 because part of his defence remains central; particularly that part of the defence which relates to precautions that were taken at the defendant's premises in the late 1970s and early 1980s - precautions as to what clothing was provided, if there were hazardous chemicals and what instructions were given to the employers.

12. His difficulty, so far as I can see it, is that there is no indication that there was any major change in the position in the four and a half year period of delay. That alone would not make any difference to the case but for the fact that the claimant's position has changed. One has to look at the global position. The global position has changed in the four and a half years by the provision of Mr Clark's third report based upon the knowledge of Mr Smith's bladder cancer.

13. The judge was plainly worried about this case. He described the scales as being finely balanced. What he said was: "It is the Smith factor which tips the balance". That seem to me to be exactly the kind of decision entrusted to a judge exercising a discretion under section 33(3). It cannot be said that it was in any way unreasonable, or that he was taking into account matters which he should not have taken into account, or any of the other usual grounds for interfering with the exercise of the judge's discretion exist.

14. I can see no ground for interfering with this exercise of discretion and would dismiss this appeal.

15. LORD JUSTICE SEDLEY: I agree. I would wish only to add my own appreciation of Mr Williams' competent and well-directed argument, and my respectful tribute to the quality of the judgment against which it was directed.

16. LORD JUSTICE SCHIEMANN: I agree with both judgments.

(Appeal dismissed; Respondents costs assessed in the sum of

£8,585.14).