Sayers v Lord Chelwood (Deceased Executors of)

This judgment is in six parts, namely:

This is a personal injury action which was begun four years after the expiry of the limitation period. The issue in this appeal is whether the judge in the county court erred in failing to exercise his discretion under section 33 of the Limitation Act 1980 in favour of the claimant.

The claimant in this action is Mr. Clifford Sayers, who was born on 21^st November 1946 and is now aged 66. The first defendant is named in the claim form as Lord Chelwood. In fact Lord Chelwood died in 1989 and the action has proceeded as if the claim were being made against his estate. The second defendant is Lady Chelwood, who is Lord Chelwood’s widow.

In this judgment I shall refer to the Limitation Act 1980 as “the Limitation Act”. Section 11 of the Limitation Act provides that an action for personal injuries shall not be brought more than three years after the cause of action accrued or (if later) the claimant’s “date of knowledge”. The date of knowledge is defined in section 14 of the Limitation Act.

Section 33 of the Limitation Act provides:

“Discretionary exclusion of time limit for actions in respect of personal injuries or death.

(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 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.

…

(3)

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;

(c)

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.”

After these introductory remarks I must now turn to the facts.

In 1981 the claimant started working for Lord and Lady Chelwood as a forester and gardener. Lord and Lady Chelwood lived in East Sussex. They had a garden of 1.3 acres and about 200 acres of forest. The claimant’s work would on occasions involve the use of noisy equipment.

In 1988 Lord and Lady Chelwood sold off the forest, so that from then on the claimant’s sole task was to look after the garden. In 1989 Lord Chelwood died. Thereafter the claimant continued to work as a gardener employed by Lady Chelwood.

In May 2000 the claimant’s employment with Lady Chelwood came to an end. Thereafter the claimant was employed by Express Dairies as one of the drivers of their vans and lorries.

By the time that the claimant left Lady Chelwood’s employment he was suffering from hearing loss and tinnitus. According to the claimant, he told Lady Chelwood about this problem before 1989. Lady Chelwood replied that she had similar symptoms. This was because she used to accompany Lord Chelwood when he was shooting and she loaded his guns.

The cause of the claimant’s hearing loss and tinnitus is a matter of dispute in this litigation.

Express Dairies provided periodic health checks for their employees. On an unknown date in 2002 the claimant attended such a health check. The nurse who was carrying out this examination tested the claimant’s hearing. On the basis of that test she advised the claimant that he may be suffering from noise-induced industrial hearing loss.

In April 2005 the claimant consulted his general practitioner, Doctor Morris. Doctor Morris referred the claimant to the ENT Department at Kent and Sussex Hospital in Tunbridge Wells. In the letter of referral Doctor Morris wrote as follows:

“I would be grateful if you could see this charming fellow who has noticed some hearing loss and ringing in his ears. He tells me that he has had some considerable noise exposure in the past with various jobs he has done. He is currently finding difficulty hearing people speak at normal volume particularly if there is background noise. He has not suffered any dizziness.

…

Examination of his ears is normal.

I enclose a copy of an audiogram performed at the surgery recently which shows a high frequency loss bilaterally.”

On 27^th June 2005 the claimant attended the ENT department at Kent and Sussex Hospital. Doctor Rahiem examined the claimant and then reported as follows to Doctor Morris:

“I reviewed this gentleman today on behalf of Miss Lloyd with a gradual loss of his hearing over the years with bilateral tinnitus, which can occasionally disturb his work and his sleep. There are no significant vertigo or ear problems. He is known to have high cholesterol for which he is on regular treatment.

On examination I could not find any abnormality and the audiogram showed presbyacusis. I have reassured him that there doesn’t seem to be any sinister pathology behind it. I am arranging for him to have a hearing aid as well as hearing therapy and we will review him again in one year’s time.”

A year later the claimant attended the ENT Department for a review. On this occasion Doctor Datta examined the claimant. On 29^th June 2006 Doctor Datta sent the following letter to Doctor Morris:

“I saw this gentleman in clinic today who has had tinnitus and hearing loss for a few years following noise exposure at work.

Examination today showed his ears to be clean and healthy and the tympanis membranes looked normal. PTA shows his hearing remains ISQ with bilateral high frequency loss.

I have arranged for him to have a digital aid fitted but not arranged to see him again in the ENT clinic. We would of course be happy to see him again should he have further problems.”

In or about the summer of 2006 the claimant saw on television what he describes as “a big glitzy advert”. This advertisement encouraged viewers to make personal injury claims. The claimant duly responded and was put in touch with Messrs Wixted and Co (“Wixted”), a firm of solicitors in London. In October 2006 the claimant instructed Wixted to pursue a claim on his behalf for personal injuries sustained while he was employed by Lord and Lady Chelwood.

Wixted investigated the matter in a somewhat leisurely manner. They then commenced the present proceedings.

On the 1^st July 2008 Wixted sent a letter of claim to Lord and Lady Chelwood. Lord Chelwood, of course, was deceased. Lady Chelwood referred the matter to her insurers, who instructed Mssrs Berrymans Lace Mawer (“Berrymans”) to deal with the claim.

On 29^th September 2009 Wixted commenced proceedings in the Wandsworth County Court on behalf of the claimant against Lord and Lady Chelwood. On 18^th January 2010 Wixted served the claim form together with particulars of claim on Lady Chelwood’s solicitors.

I am bound to say that Wixted’s handling of this matter leaves much to be desired. Despite the fact that this was a stale claim with obvious limitation difficulties, they delayed for three years before commencing proceedings. When they did so, they named Lord Chelwood rather than his estate as first defendant. The particulars of claim, as drafted by Wixted, alleged numerous breaches of the Factories Act 1961, even though that Act could not possibly be applicable.

The claimant’s counsel, Mr. Simon Mallet, with masterly understatement describes all these matters as “unsatisfactory features”. He states that the claimant’s real case against Lady Chelwood and her husband’s estate is comprised in the pleaded particulars of negligence at paragraphs 6(k) to (n) of the particulars of claim. These state:

“(k)

Failed to provide the Claimant with any or any adequate protective equipment.

(l)

Failed to ensure that protective equipment in the form of ear defenders were worn at all times.

(m)

Failed to ensure that the Claimant was trained as to, advised of and/or understood, the necessity for wearing ear defenders.

(n)

Failed to monitor and/or to reduce noise levels, adequately or at all.”

On the 27^th March 2010 the defendants’ solicitors served a defence, denying liability and asserting that the claimant’s claim was barred under the Limitation Act. Following service of the defence the action was transferred to the Hastings County Court. On 18^th May 2010 a deputy district judge in the Hastings County Court allocated this action to the fast track and ordered that the question of limitation be tried as a preliminary issue.

The trial of this preliminary issue took place in the Hastings County Court on 22^nd November 2010 before Deputy District Judge Smith. The claimant gave oral evidence in support of his case. The claimant’s medical records were before the court. The claimant also relied upon some reports on his condition which had been prepared by Mr. Robert Tranter, a consultant ENT Surgeon. In the second of these reports Mr. Tranter expressed the view that the claimant would have sustained 99% of his current hearing loss by the year 2000, when he left Lady Chelwood’s employment.

The defendants relied upon a witness statement of Ms Jennifer Barrow, a solicitor employed by Berrymans. Ms Barrow was available at court but the claimant’s counsel did not wish to cross-examine her.

Deputy District Judge Smith delivered his judgment ex tempore, as was appropriate in a fast track trial. He held that the claimant’s date of knowledge for the purposes of section 14 of the Limitation Act was December 2006, since that was when Wixted advised the claimant that he could bring a claim. Accordingly the claimant had commenced his action within the three year limitation period.

The deputy district judge rejected the suggestion that the claimant’s date of knowledge was June 2006, when Doctor Datta examined him and reported. The deputy district judge added, however, that if he was wrong on this point and the date of knowledge was June 2006, then he would exercise his discretion under section 33 of the Limitation Act and allow the action to proceed.

The defendants appealed against the deputy district judge’s decision to a circuit judge. His Honour Judge Hollis, sitting in the Hastings County Court, heard that appeal on 11^th July 2011. The material before Judge Hollis comprised a transcript of the claimant’s oral evidence before the deputy district judge together with the bundle of documents which the deputy district judge had considered.

Judge Hollis, like the deputy district judge, gave a fluent judgment ex tempore. He allowed the defendants’ appeal. He held that the claimant’s date of knowledge was 2002, when the claimant received advice from the nurse at Express Dairies. The judge held that, in the exercise of the court’s discretion under section 33 of the Limitation Act, it was not appropriate to allow the action to proceed after such a long delay. Accordingly, he dismissed the claimant’s claim.

The crucial part of Judge Hollis’s judgment for present purposes is his consideration of the section 33 issue at paragraphs 16-19. These paragraphs read as follows:

“16.

Having established that, I turn to whether or not I should exercise discretion in the claimant’s favour under s.33. Again, I bear in mind that the Deputy District Judge came to a particular view having seen the claimant. I bear in mind, too, that this is an industrial injury case with a particular history as so many injuries like them have. The claimant does have a particularly heavy burden to satisfy the court under s.33. The fact there has been the delay is because of the delay prejudicial to a defendant. I have to bear in mind, as the Deputy District Judge should have done, the various matters set out in s.33(3). He dealt with the matter – and there is no reason why he should not have done, bearing in mind his finding on the main aspect of the issues before him – fairly briefly. He did not cover all the different aspects that he should have done. In particular, he did not consider the length of and the reasons for the delay on the part of the plaintiff. Indeed, he was not able to because, subsequent to June 2006, there were no reasons given for the delay on the part of the plaintiff. Indeed, there were no reasons given prior to that. The extraordinary thing in this case is why there has been no attempt by the claimant’s solicitors to explain why, although they were approached in September 2006 and apparently instructed in December 2006, they did not issue proceedings until September 2009 and sent no letter of claim (I am told) until July 2008.

17.

There is also the extent to which, having regard to delay, the adduced evidence is likely to be less cogent than if the action had been brought within the time allowed. The equipment involved is presumably long gone, as has Lord Chelwood. Lady Chelwood is 88 and, although she seems to have some memory of matters, clearly matters would be difficult for her to deal with. Much of the complaint relating to what was going on in fact pre-dated Lord Chelwood’s death when Lady Chelwood was less closely involved than she was, presumably, subsequently.

18.

The extent of Mr. Sayers’ disability seems to be little different now than it was in 2000. It cannot be said that he acted promptly or reasonably, even after he had had legal advice in 2006, and he had not been quick before that to obtain appropriate medical or other advice. In spite of the nurse telling him in 2002 that he had possible industrial hearing loss, he did nothing about it until he went to his own GP in 2005.

19.

Overall, I really cannot consider that there is a fair opportunity left to these defendants to defend this claim after so very many years, regrettable as it may be for Mr. Sayers. Under those circumstances, I am going to allow the appeal and dismiss the case.”

The claimant was aggrieved by Judge Hollis’s decision. Accordingly he appeals to the Court of Appeal.

By an appellant’s notice dated 25^th July 2011 the claimant appeals to the Court of Appeal against the dismissal of his claim. He accepts that Judge Hollis was correct to hold that the date of knowledge was 2002; therefore the action was commenced some four years after expiry of the primary limitation period. The claimant contends, however, that the judge erred in the exercise of his discretion under section 33 of the Limitation Act.

On 20^th October 2011 Dame Janet Smith gave permission to appeal on a ground which had not been specifically raised in the grounds of appeal. The relevant part of her decision reads as follows:

“I consider it arguable that the judge misdirected himself as to the burden which lies on a claimant under section 33; he described it as ‘particularly heavy’. It appears to me that this appeal raises a point of principle and that it would be unjust if the appellant were not allowed to proceed.”

I will not linger on the claimant’s grounds of appeal or skeleton argument, because these do not reflect the way in which the case has been argued before us. No point is taken by the defendants in that regard. Mr. Simon Mallett makes the following submissions on behalf of the claimant:

The defendants resist each of the claimant’s contentions. They also argue, if they need to do so, that the judge was too generous to the claimant in taking 2002 as the start date. In fact time started to run long before then. On the view which I take of the matter, it is not necessary to consider this additional fallback argument. I shall therefore focus on the primary dispute between the parties, which is whether the judge erred in the exercise of his discretion under section 33 of the Limitation Act.

In my view, there are essentially two issues to consider. They are:

Having set out the framework of this appeal, I must now turn to the first issue, namely whether the judge applied the wrong test.

Counsel on both sides have drawn attention to a line of conflicting authorities on the question of what test should be applied under section 33 of the Limitation Act. This conflict of authority is not helpful for district judges and circuit judges sitting in the county courts, who may have to apply section 33 in fast track cases. Such cases are intended to be managed efficiently and resolved at modest cost.

In KR v Bryn Alyn Community (Holdings) Limited [2003] EWCA Civ 85, [2003] QB 1441, fourteen claimants made claims for abuse which they had suffered as children whilst living in residential homes run by the first defendant. The High Court exercised its discretion under section 33 of the Limitation Act to allow the action to proceed after expiry of the limitation period.

The Court of Appeal upheld that decision. Auld L.J., delivering the judgment of the court, at paragraph 74 gave general guidance concerning the effect of section 33. At paragraph 74 (ii) he said:

“The burden of showing that it would be equitable to disapply the limitation period lies on the claimant and it is a heavy burden. Another way of putting it is that it is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it;”

In Horton v Sadler [2006] UKHL 27, [2007] 1 AC 307 the claimant was injured in a road traffic accident for which the first defendant was wholly responsible. The first defendant was uninsured. The claimant commenced an action against the first defendant and against insurers nominated by the Motor Insurers’ Bureau (“MIB”) as second defendant. Unfortunately the claimant failed to give proper notice to the MIB, with the result that his claim against MIB was doomed to fail. In September 2001, some six months after expiry of the limitation period, the claimant began a second action against both defendants. This time he had given proper notice to the MIB. On a trial of preliminary issues the judge dismissed the claim. He held that where the claimant had begun proceedings within the ordinary limitation period, he was not prejudiced by section 11 of the Limitation Act. Therefore the court could not disapply section 11 in a second action which the claimant commenced out of time. The Court of Appeal upheld that decision. The House of Lords allowed the claimant’s appeal. Lord Bingham gave the leading speech, with which Lord Rodger, Lord Carswell and Lord Brown agreed. At paragraph 32 Lord Bingham said this:

“In resolving an application under section 33 the court must make a decision of which the inevitable effect is either to deprive the defendant of an accrued statute-bar defence or to stifle the claimant's action against the tortfeasor who caused his personal injuries. In choosing between these outcomes the court must be guided by what appears to it to be equitable, which I take to mean no more (but also no less) than fair, and it must have regard to all the circumstances of the case and in particular the six matters listed in subsection (3). These are, as Lord Diplock observed in Thompson [1981] 1 WLR 744, 751, "a curious hotchpotch", for reasons which he examined. But there is, as it seems to me, a problem underlying the whole of section 33: that it appears to treat the plaintiff and the defendant as individuals liable to suffer prejudice, and with no recognition that it is frequently the competing interests of insurers which will be liable to suffer prejudice. I cannot accept the suggestion by the MIB that the references to "or any person whom he represents" in subsections (1)(a) and (1)(b) are capable of referring to insurers, since a plaintiff and a defendant do not in any legal sense "represent" their insurers. Faced by this problem, but recognising the reality of insurance, the courts have routinely and rightly taken account of the parties' insurance rights. Thus a plaintiff's rights against his insured solicitor are very relevant (Thompson, p 752) but this does not mean that refusal of an order under section 33 will not prejudice him to some degree (Thompson, pp 750-751).”

In Kew v Bettamix Ltd [2006] EWCA Civ 1535, [2007] 4 Costs LR 527 the claimants sought to pursue a claim for Hand Arm Vibration Syndrome against his former employers after expiry of the limitation period. The judge in the county court allowed the action to proceed in the exercise of his discretion under section 33 of the Limitation Act. The Court of Appeal upheld that decision. Leveson L.J. gave the leading judgment, with which Waller L.J. (the only other member of the court) agreed. At paragraph 28 Leveson L.J. made the following observations about paragraph 74 (ii) of Auld L.J’s judgment in KR:

“It is important to underline that Auld LJ was not seeking to place a gloss on the observations of Lord Diplock and I read the words “exceptional indulgence” as meaning no more than an indulgence that represents an exception to the general rule that a claim should be brought within the primary limitation period. Inevitably, that casts a burden on the claimant to demonstrate good reason to justify the exception but, again, that burden is itself not intended to suggest that it has necessarily become more difficult since it was first introduced. The discretion remains unfettered but its exercise requires justification the reasons for which are articulated by the judge’s judgment.”

A v Hoare [2008] UKHL 6, [2008] AC 844 was a group of cases concerning sexual assaults allegedly committed many years before the various actions were commenced. The House of Lords gave valuable guidance to assist courts in determining the date of knowledge for the purposes of section 14 of the Limitation Act. In relation to section 33 of that Act, Lord Hoffmann said that the court must look at the matter broadly and its discretion is unfettered. In that exercise the court can have regard to the reasons for a claimant’s delay: see paragraphs 45 and 48. Lord Walker, Baroness Hale and Lord Carswell agreed with those comments.

In B v Nugent Care Society [2009] EWCA Civ 827, [2010] 1 WLR 516 the Court of Appeal dealt with a group of claims concerning sexual abuse in children’s homes. The central issue was whether the trial judge was right to disapply the limitation period under section 33 of the Limitation Act. Lord Clarke MR, delivering the judgment of the court, reviewed the impact of the House of Lords’ decision in A v Hoare upon the earlier guidance concerning section 33 given by this court in KR. At paragraph 11 Lord Clarke said that that guidance remained valid, subject to appropriate amendment in the light of A v Hoare. At paragraph 14 Lord Clarke stated that an appellate court should only intervene if the trial judge applied the wrong principles or if the judge was so plainly wrong that he exceeded the ambit within which reasonable disagreement was possible.

At paragraph 20 Lord Clarke stated his conclusion as follows:

“In the light of the considerations in A v Hoare [2008] AC 844 to which we have referred we conclude that the “starting points” taken from para 74 of the Bryn Alyn case [2003] QB 1441 and quoted above remain valid subject to these considerations. As to (ii), it is correct to describe the exercise of the discretion as an exceptional indulgence to the claimant because, but for the exercise of the discretion, his claim will be time-barred. But it is only exceptional for that reason. The cases stress that the discretion is wide and unfettered.”

In McDonnell v Walker [2009] EWCA Civ 1257 the claimants commenced an action for personal injuries seven years after the road traffic accident in which those injuries had been sustained. The deputy circuit judge in the exercise of his discretion under section 33 of the Limitation Act declined to allow the action to proceed and the Court of Appeal upheld that decision. Waller L.J. delivered the leading judgment, with which Rimer L.J. and Sir Paul Kennedy agreed. Waller L.J. said this at paragraph 18:

“What then is the proper approach to s.33? The section has been considered and reconsidered a number of times both by the House of Lords and by the Court of Appeal. In particular it has had to be considered recently as the landscape has changed, e.g. following the decision in Horton departing from Walkley and A v Hoare [2008] 1 AC 844 departing from Stubbings v Webb [1993] AC 498. Most recently (and after the decision of the deputy judge in this case) this court in AB v Nugent Care Society [2009] EWCA Civ 827 at paragraph 12 repeated what had been said in KR v Bryn Alyn Community Holdings Ltd [2003] QB 1441 as the relevant starting points and at paragraph 20 confirmed them as still valid post-Hoare subject to putting a slight gloss on the description in Bryn Alyn of the exercise being an exceptional indulgence to the claimant. I am not going to repeat here what is set out in Bryn Alyn and again in Nugent Care but would emphasise two obvious points; (i) depending on the issues and the nature of the evidence going to them the longer the delay the more likely and the greater, the prejudice to the defendant; and (ii) a judge should not reach a decision by reference to one circumstance or without regard to all the issues – he should conduct a balancing exercise at the end of his analysis of all the relevant circumstances and with regard to all the issues, taking them all into account.”

In AB v Ministry of Defence [2010] EWCA Civ 1317 a large group of servicemen or their dependants and personal representatives claimed damages for personal injuries suffered as a result of experimental nuclear explosions in the 1950s. On the trial of preliminary issues in ten lead cases Foskett J held that five of the claims had been issued in time and that the other five claims should be permitted to proceed in the exercise of the court’s discretion under section 33 of the Limitation Act.

On appeal the Court of Appeal held that only one of the ten claims been issued in time. Furthermore the judge had erred in the exercise of his discretion under section 33. The nine claims which had been issued out of time should not be allowed to proceed because they had no realistic prospect of success. Smith L.J., delivering the judgment of the court, dealt with generic issues concerning section 33 of the Limitation Act at paragraphs 84-111. The crucial paragraph for present purposes is paragraph 96, which is as follows:

“The judge began this section of his judgment by observing, correctly in our view, that the burden of proof under section 33 lies on the claimant (see Thompson v Brown [1981] 1 WLR 744 at 752) recognising that the suggestion made in KR v Bryn Alyn Community Holdings Limited [2003] QB 1441 that it is a heavy burden is no longer good law. The discretion to disapply section 11 is unfettered and the court's duty is to do what is fair: see Horton v  Sadler [2007] 1 AC 307 and A v  Hoare.”

AB subsequently went to the Supreme Court, but only on issues concerning section 14 of the Limitation Act. The Supreme Court did not consider the operation of section 33 and therefore I need not review the judgments of the Supreme Court.

The most recent case concerning the application of section 33 of the Limitation Act is Davies v The Secretary of State for Energy and Climate Change [2012] EWCA Civ 1380. In this litigation a group of miners claimed damages for personal injuries caused by the conditions in which they had worked between 1954 and 1993. Eight representative actions were dealt with first. In each of these eight cases the claim was issued after expiry of the limitation period. On the trial of preliminary issues His Honour Judge Grenfell, in the exercise of his discretion under section 33 of the Limitation Act, declined to allow those actions to proceed. In the course of his analysis Judge Grenfell quoted and followed paragraph 96 of Smith L.J.’s judgment in AB, which I have set out above. The Court of Appeal upheld Judge Grenfell’s decision. Tomlinson L.J. gave the lead judgment, with which Mummery and Hallett LJJ agreed. At paragraph 18 of his judgment Tomlinson L.J. specifically approved the passage in which Judge Grenfell cited and followed paragraph 96 of Smith L.J.’s judgment in AB.

Against the background of this line of authorities Mr. Mallett submits that the proposition that section 33 of the Limitation Act imposes a “heavy burden” on claimants is no longer good law. That proposition is found in paragraph 74 (ii) of KR, but that passage has been decisively rejected in later authorities.

Mr. David Platt QC, on behalf of the defendant, submits that the whole of paragraph of 74 (ii) of KR is still good law. He submits that Smith L.J.’s comments in paragraph 96 of AB were per incuriam. Although this paragraph was cited with approval by the Court of Appeal in Davies, it does not appear to have been the subject of argument. Therefore, says Mr. Platt, the decision in Davies does not carry this matter any further.

I must confess that I am not one of those who welcome the encrustation upon the simple words of section 33 of a vast tangle of case law. It should not be necessary for judges in the county court to engage in textual analysis of a line of appellate decisions in order to discern whether a claimant relying upon section 33 has a “burden” or a “heavy burden” to discharge.

There can be no doubt that if a claimant commences proceedings out of time and asks the court, in the exercise of its discretion under section 33 of the Limitation Act, to disapply sections 11, 11A or 12, then the burden is on the claimant to persuade the court by evidence and argument that such a direction is appropriate. Auld L.J. was plainly correct in KR to say that such a claimant is seeking the indulgence of the court. Auld L.J. was also correct to say that such indulgence is exceptional, in the sense that the claimant is seeking an exemption from the normal consequences of failing to commence proceedings within the limitation period. I read paragraph 74 (ii) of Auld L.J.’s judgment in KR in the same way that Leveson L.J. did in Kew v Bettamix.

Once it is established which party has the burden in relation to a particular issue, it is not helpful to discuss in the abstract whether that burden is a heavy one or a light one. Mr. Platt got into difficulties in argument when we invited him to comment on hypothetical cases where it would obviously be appropriate to disapply the time bar. He submitted that in such cases the claimant’s burden would still be heavy but easily discharged.

In Horton v Sadler and A v Hoare the House of Lords stressed that the court’s discretion under section 33 of the Limitation Act is broad and unfettered. In my view these comments make it difficult to maintain that the claimant’s burden under section 33 is necessarily a heavy one. How difficult or easy it is for the claimant to discharge the burden will depend upon the facts of the particular case. I therefore respectfully agree with Smith L.J.’s comments in paragraph 96 of AB. All one can say in relation to section 33 at the level of generality is that the burden is on the claimant.

Let me now draw the threads together. Upon reviewing the authorities cited by counsel, I prefer the view expressed by Smith L.J. in paragraph 96 of AB rather than the earlier view expressed by Auld L.J. in paragraph 74 (ii) of KR. All that one can properly say about the general approach to section 33 is that the burden is on the claimant. The claimant is seeking to be exempted from the normal consequences of failing to issue proceedings in time. It is for the claimant to establish by reference to the criteria set out in section 33 that it would be equitable to allow the action to proceed, despite the expiry of the prescribed limitation period.

Let me now turn to the judgment in the present case. The judge held that the claimant has “a particularly heavy burden to satisfy the court under section 33”. As I read it the judge was there stating a general principle, rather than its application to the present case. On that basis the judge was applying the wrong test. He ought simply to have said that the burden was on the claimant. It is difficult to criticise the judge in this regard. He was faced with a bewildering array of inconsistent dicta from superior courts. Furthermore he did not have the benefit of hearing the full arguments which have been deployed before this court. Nevertheless, my answer to the question posed in Part 5 of this judgment is yes.

Since the judge applied the wrong test, it now falls to the Court of Appeal to re-exercise the discretion conferred by section 33 of the Limitation Act.

In the latter part of paragraph 16 and in paragraphs 17, 18 and 19 of his judgment the judge sets out powerful reasons why the discretion of the court should not be exercised in favour of the claimant.

We have heard detailed arguments about each of these matters and counsel have taken us to the relevant passages in the evidence. In my view, however one characterises the burden upon the claimant, it is not one which can be discharged in the circumstances of this case.

Let me start by considering the factors set out in section 33 (3) of the Limitation Act. As to factor (a), the claimant commenced his action four years after the expiry of the limitation period. Wixted secured the claimant as a client through the medium of a television advertisement. One way or another they will have a paid a handsome fee in order to get the claimant onto their books. Thereafter it was in their interests as well as the claimant’s interests to get on with the case. I have no idea why they did not do so. As the judge observed, it is extraordinary that the claimant’s solicitors have not put in any evidence to explain why they delayed for so long.

In relation to factor (b), it is necessary to identify the main issues in the case. It is common ground that those issues are as follows:

The four years delay in commencing proceedings makes it substantially more difficult for the parties to adduce relevant evidence in relation to the first four of those issues. Mr. Frank Axell, an important witness for the claimant, died in June 2012. His witness statement can, of course, be put before the court, but Mr. Axell will not be available for cross-examination. On the defendants’ side, the only person with knowledge of relevant events is Lady Chelwood. Lady Chelwood is now aged 90. With each year that passes her ability to give relevant evidence diminishes. The specific equipment which the claimant used during his employment with Lord and Lady Chelwood can no longer be identified. The noise levels generated by that equipment cannot now be determined. I accept that there would have been difficulties even if the claimant had commenced his action within the limitation period. As a result of the four years delay, however, those difficulties will be significantly greater and the evidence before the court will be less cogent.

Factors (c) and (d) are not relied upon by either party for present purposes. As to factor (e), the claimant did not act promptly once he knew that he might have a claim against the defendants in respect of his hearing loss and tinnitus.

As to factor (f), the claimant was alerted to his possible claim by the nurse’s advice in 2002. The steps which the claimant took to obtain medical and legal advice thereafter were few and leisurely. He consulted his general practitioner and an ENT doctor in 2005. He consulted solicitors in 2006.

The list of factors set out in section 33 (3) is not exhaustive. One important factor on the claimant’s side is that he appears to have a properly arguable claim against his employers for hearing loss and tinnitus. The total value of that claim (if established) on the material before us appears to be in the region of £25,000, including special damages.

One important factor on the defendants’ side is that because of the delay relevant insurance documents have been lost. The defendants would have had employers’ liability insurance in respect of the whole period of the claimant’s employment. Now, however, Lady Chelwood cannot trace who were the insurers for the period 1^st April 1981 to 1^st January 1986. Thus Lady Chelwood is exposed to personal liability in respect of 24.6% of the claim. For the reasons stated by Lord Bingham at paragraph 32 of Horton, the insurance position of the parties is a relevant factor and must be taken into account. The claimant seeks to meet this point by undertaking not to enforce 24.6% of any judgment in its favour against Lady Chelwood personally. That, however, is not a complete answer to the point. Lady Chelwood will remain liable for 24.6% of her own costs. It should be noted that the costs on each side in this case are substantially higher than the damages claimed.

The task of the court under section 33 (1) is to weigh up (a) the prejudice to the claimant if his claim is barred by section 11 of the Limitation Act and (b) the prejudice to the defendants if the action is allowed to proceed, despite having been started out of time. In the circumstances of the present case, I am quite satisfied that the prejudice to the defendants under limb (b) outweighs the prejudice to the claimant under limb (a).

In the result, therefore, upon re-exercising the discretion conferred by section 33 of the Limitation Act, I come to the same conclusion as the judge. It is not appropriate to give a direction which disapplies section 11 to this action. I would therefore dismiss the claimant’s appeal and uphold the judge’s order that this action be dismissed.

I agree.

I also agree.