Carr v Panel Products (Kimpton) Ltd

We have before us two appeals by Mr David William Carr (“Mr Carr”) from the Order of 15 March 2016 (sealed on 18 March 2016) of District Judge Jenkinson, sitting in the County Court at Liverpool, whereby he dismissed (with costs) Mr Carr’s claim in the action against Panel Products (Kimpton) Limited (“Panel”) as being statute barred and ordered that the costs of the hearing on 15 March 2016 should be costs in the case.

The learned judge refused permission to appeal. However, permission to appeal was granted by Underhill LJ in two orders both made on 12 January 2017 (both sealed on 13 January 2017).

On the appeals, Mr Hester for Mr Carr submits, first, that the judge’s decision on the limitation issues was wrong and, secondly, that the judge erred in principle in ordering that the costs of the (telephone) hearing on 15 March 2016 should be costs in the case.

Mr Carr is now 63 years of age, having been born on 9 November 1954. Between November 1974 and April 1981 he was employed by Panel as a Machine Operator in its business at Bootle in Liverpool. The business was the manufacture of flat pack furniture and involved the working of wooden materials on a variety of types of machine: these were identified as being drilling machines, large saws, routing machines and spindle moulders. Mr Carr’s brief witness statement in the action described his work and his working environment, in one seven line paragraph, as follows:

“The company made flat pack furniture and I was employed as a machine operator. The machines I would work on would be drilling machines, large saws, routing machines and spindles. I also worked on an edge bander this put the tape on the side of the boards. It was a constantly noisy environment in which it was only possible to communicate by shouting or using hand signals. No hearing protection was provided at all.”

At trial the judge permitted Mr Carr to expand on this by giving evidence as to the extent of his usage of individual machines as outlined in a letter of 24 November 2014 written by his solicitors to the joint engineering expert (Mr Jim Garry). The evidence so given remained in dispute between the parties, but it was accepted (as the judge recorded in his judgment) that, if Mr Carr had worked on the machines so identified for the times alleged, he would have been exposed to excessive noise (absent – it is assumed – ear protection, which was also in issue). On that hypothesis, the noise exposure would have reached a “noise immission level” (“NIL”) of 100dB, which both parties’ medical experts agreed was a pre-requisite for a diagnosis of noise induced hearing loss.

In oral evidence, Mr Carr said that he knew at the time that his was a “noisy job”. Comments about the noise were made by colleagues and he noticed a pleasant change in noise level when leaving the premises at the end of the working day. He said that he did not appreciate at the time that the noise could be injurious to his hearing and only realised that fact (perhaps) when he was in his 30s, i.e. between 1984 and 1994.

Mr Carr’s evidence was that his allocation to work on particular machines on any day, or for any particular part of a day, would be determined by the works supervisor whose name was, he said, “Harry”. He did not recall the surname. Nor could Mr Carr remember the names of two other managers at the plant who might have been able to give material evidence. Mr Carr told the judge that “Harry” did keep written records of which tasks were being done on which machines by which employees and when, and he agreed that such records would have been more accurate, as to his (Mr Carr’s) own day to day machine usage, than his own memory of it some 30 years later. It was and is common ground that all relevant former supervisory staff members would now be of a significant age and were in any event, for practical purposes, untraceable. Mr Carr also said that his work colleagues at the time lived in different parts of Liverpool to him and he had had no contact with any of them since leaving Panel’s employment in 1981.

Mr Carr’s employment with Panel ended in redundancy when the Bootle premises were closed in 1981. All the Bootle staff were made redundant. The machinery was moved out of the premises which were then used by other occupiers for other purposes. Thereafter, although we have no details before us (as to dates or otherwise), Panel was put into liquidation and was subsequently dissolved. It appears that the company was restored to the register in August 2013, on Mr Carr’s petition presented on 25 May 2013 for the purposes of bringing these proceedings. No relevant documentation, contemporary to the time of Mr Carr’s employment, has survived. That does not appear to have been in dispute. The whereabouts of potentially relevant witnesses, as Mr Carr’s evidence confirmed, are unknown. There is no extant management of the company, which exists in name only and is represented in these proceedings only by insurers.

After a period of initial unemployment after leaving Panel, Mr Carr took up other jobs, none of which involved noisy environments, and in November 2007 he obtained an office job with Liverpool City Council. He said in his witness statement that he acquired a nickname at work of “What’s That”, because that was a frequent interjection he made to colleagues having not heard what they were saying to him. His wife began to make comments about the high levels of volume to which he would put the television at home; this being so loud as to disturb neighbours. He had also had difficulty in hearing conversation with fellow passengers when dining on a cruise in 2008.

Mr Carr’s evidence to the judge was that at that stage he attributed his hearing problem to “old age”, although he was then only 51 years old. He did not seek medical advice. He accepted that if he had seen a doctor at this stage he would have known the cause of his hearing loss. However, he had not consulted his GP because he was concerned that he would be prescribed hearing aids, a course which he wished to avoid at that age. At no stage has he seen medical practitioners to seek advice with regard to his hearing loss, as distinct from seeing the experts instructed in the present proceedings in the context of his claim.

Mr Carr did nothing to investigate his problem until late 2010/early 2011 when he received, through the letter box at his home, a “flyer” from his current solicitors, outlining the symptoms of noise induced hearing loss and indicating that potential routes of claim might exist, to be pursued on a “no win, no fee” basis. In his evidence, however, he said he was aware, from general advertising, of solicitors prepared to act on this basis in personal injury claims. He duly contacted the solicitors in Newcastle, by telephone from his home in Liverpool, when terms of retainer were discussed. He entered into a conditional fee agreement with the solicitors shortly thereafter. His witness statement, to which I have already referred, is dated 21 July 2011.

Expert medical opinion was sought from Mr AJ Parker DLO, ChM, FRCS in February 2012. Mr Parker reported in May 2012. A letter of claim was sent to Panel’s insurers dated 22 June 2012, together with Mr Parker’s first report. A response was written on 12 October 2012 (a few weeks outside the pre-action protocol period of 3 months), stating that the allegations made could not be admitted or denied, reserving the position about obtaining other medical evidence and as to limitation. After this, however, it was not until May 2013, that the petition was presented seeking the restoration of Panel’s name to the Register for the purposes of the claim. None of the court papers relating to those proceedings have been before us.

The claim form in the present action was issued in the Northampton County Court on 29 August 2013, some 32 years after the end of the relevant employment. The Defence in the action was served on 25 September 2013 and it pleaded that the claim was statute barred. It was said that the delay was extensive and without good reason. The pleading also put in issue the level of noise exposure alleged, the machines used by Mr Carr (and for what period or periods), the other machines that were in proximity to Mr Carr, the ability to hold conversation on the shop floor, and the provision (or otherwise) of hearing protection and warnings to its use.

In the Reply (served on 5 November 2013) it was alleged that hearing problems were not noticed by Mr Carr until 2010; it was alleged that, when so noticed, the problems were attributed by him to ageing. (At trial, the judge found the date of actual knowledge as 2007/8.) In the alternative, the Reply invoked the extension of the limitation period under section 33 of the Limitation Act 1980. It was alleged that hearing loss was insidious and that prompt and reasonable steps had been taken by Mr Carr to obtain medical advice. It was said that Panel’s working systems were longstanding and were or “ought to be a matter of record”. Prejudice to Panel by the lateness of the claim was denied.

Service of medical reports by the experts revealed a divergence of view on the nature of the hearing loss and its extent. The joint engineering expert, Mr Garry, demonstrated that the nature of noise exposure which Mr Carr experienced would depend entirely upon the court’s findings as to the work undertaken by Mr Carr on which machines and over what periods, as to which he had little information.

The trial before the judge, held over 11 and 12 November 2015, was of all issues. The limitation questions were not tried as preliminary issues.

By the time of trial the level of damages (subject to liability) had been agreed at £7000.

The judge made the following findings:

“21.

In the present case, I am satisfied, on a balance of probabilities, that Mr Carr has an actual date of knowledge of 2007 or at the latest 2008. I so find because:-

a)

By then, he was suffering from hearing loss sufficient to attract a nick name at work based upon it, to provoke comment from his wife, and to cause the difficulties described to the medical experts;

b)

These dates are corroborated by the Claimant’s accounts to the medical experts. He told Mr Parker (who examined in 2012) that he had been aware of a hearing loss for “a few years now” and told Mr Jones (in 2014) that he had been aware of moderate hearing loss for six years;

c)

They are also corroborated by the reference in the Claimant’s witness statement (prepared in 2011) to having been aware of a hearing loss “for the past few years”;

d)

The hearing loss then suffered by Mr Carr was a significant injury in that it was beyond de minimis. It was significant enough that he feared it would necessitate the prescription of hearing aids. Given that Mr Carr thought it sufficiently serious to justify the issue of these proceedings against this Defendant, I am satisfied on a balance of probabilities that he would then have thought it sufficiently serious to issue proceedings against a solvent Defendant who did not dispute liability;

e)

I am also satisfied that at that stage, and again on a balance of probabilities, that Mr Carr did at that stage attribute his hearing loss to his work with the Defendant. He told me in evidence that he became aware of the connection between noise and hearing loss in his 30s (see paragraph 10 (above)), i.e. at an age preceding the date of the onset of his hearing loss. There was no other possible cause of his hearing loss that Mr Carr was aware of beyond aging. Specifically, he did not describe any history of deafness in the family (beyond his brother’s profound deafness as a result of contracting meningitis in childhood, which Mr Carr did not suggest featured in his consideration as to the possible cause of his own deafness), head injury, ototoxic drug use, or other possible causes. It is noteworthy that he did not have any other noisy employments.”

If wrong as to “actual knowledge” of significant injury, attributable to the employment which was alleged to constitute negligence or breach of duty, and of course Panel’s identity, then the judge found that Mr Carr was to be fixed with “constructive knowledge” about a year after becoming aware of his hearing loss. He found that simple consultation with a general medical practitioner would have provided the necessary information. Founding himself upon the judgments of this court in Johnson v Ministry of Defence [2012] EWCA Civ 1505, if (as in that case) a man of 61 years of age in that case would reasonably be sufficiently curious about hearing loss to instigate inquiry into it, then the same would follow in a man almost 10 years younger, as in Mr Carr’s case.

On this basis, the judge made the following finding as to the expiry of the primary limitation period:

“23.

Applying an actual date of knowledge of 2007/2008 the claim should have been issued by 2010/2011. Applying a constructive date of knowledge of 2008/2009 the claim should have been issued by 2011/2012. On any basis, given my findings as to date of knowledge, this claim has been issued outside of the limitation period, and is accordingly statute barred by reason of the 1980 Act.”

The judge then considered whether he should exercise his discretion to disapply the limitation period under section 33 of the 1980 Act. He declined to exercise that discretion and addressed in turn each of the (non-exclusive) statutory factors identified in section 33(3).

He found that the claim had been issued between one and three years late and that that delay had been unexplained. He considered that the defendant’s audiology evidence would have been more cogent had it been undertaken earlier; he noted that Mr Carr’s expert contended that his audiometry was more accurate than that of Panel’s expert for a number of reasons, some of which would not have been open to him if Panel’s expert had been instructed earlier. The judge considered that, even after Mr Carr clearly knew that his problem might be attributable to his work for Panel, there were delays in instructing the medical expert and in the commencement of proceedings to restore Panel to the register; these delays were unexplained.

Relying upon the speech of Lord Oliver of Aylmerton in Donovan v Gwentoys Ltd. [1990] 1 WLR 472, the judge said that he took into account prejudice to Panel both before and after the delay in question, while giving more weight to prejudice accruing during the post-limitation delay period.

Looking at the prejudice to Panel overall, the judge pointed to the lack of detailed information that could be presented to Mr Garry, the expert engineer. He noted that the machines were long gone and witnesses were no longer available. The documents as to the deployment of workers on particular tasks (which Mr Carr accepted had once been kept) were no longer available. The judge found that Panel was “left at the mercy of the Claimant’s recollection” (paragraph 30 of the judgment).

The judge dismissed the claim accordingly and he did not determine any of the other issues in the case.

The judge distributed a draft judgment to the parties in the usual way, apparently on 20 November 2015. However, it appears that the judgment was not formally “handed down”, nor was any order made, until a telephone hearing on 15 March 2016. Both counsel were in attendance and the judge at the end of their respective telephone lines on that occasion. Written submissions on consequential matters had been exchanged and provided to the judge. Apart from the question of permission to appeal, the final order to be made had been agreed.

Mr Hester made his oral application for permission to appeal and he resisted Mr Turton being heard upon that application, relying upon the decision of this court in Jolly v Jay [20012] EWCA Civ 277, dealing with the old practice relating to such applications in the Court of Appeal for permission to appeal, not with such applications at first instance. The judge, however, did hear Mr Turton on the permission issue. He refused permission to appeal and ordered that the costs of that hearing be costs in the case.

The judge dismissed the claim with costs to be assessed and ordered an interim payment, on account of costs, of £16,000. We were informed by counsel that Mr Carr’s budgeted costs figure was £45,000 and that part of those costs would have been subject to an uplift, by way of “success fee”, if the claim had been successful.

I will take the two appeals in turn, dealing with the appeal on the limitation questions first. Before doing so, however, and with respect to the decision of the Master to the contrary which led to two Appellant’s Notices being issued, I do not see that the second Appellant’s Notice was strictly necessary. The points in issue on the appeals all arose out of the judge’s order of 15 March 2016. No order was made on 20 November 2015. Notwithstanding the wording of the original Appellant’s Notice suggesting that there had been an order made on the November date, all that happened on 20 November 2015 was that a draft of a judgment was provided to the parties in advance of a formal “hand down”. Thus, a single Appellant’s Notice was all that was required, but omitting the error referring to an order of 20 November 2015.

The customary limitation period for the bringing of personal injury claims is three years from the date on which the cause of action accrued or the date of “knowledge” (if later) of the person injured: s.11(4) of the 1980 Act. “Knowledge” for these purposes is defined in s.14 of the Act as follows:

“14.

– Definition of date of knowledge for purposes of sections 11 and 12.

(1)

[Subject to subsection (1A) below.] in sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts—

(a)

that the injury in question was significant; and

(b)

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; and

(c)

the identity of the defendant; and

(d)

if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(2)

For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(3)

For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—

(a)

from facts observable or ascertainable by him; or

(b)

from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

Section 33 of the Act permits the court to extend the period within which such claims may be brought. It provides as follows (in s. 33(1) and (3)):

“33.

– Discretionary exclusion of timelimit 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 …

(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; …

(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.”

The first two grounds of appeal attack the judge’s findings as to Mr Carr’s knowledge, actual or constructive, for the purposes of the 1980 Act.

Mr Hester, for Mr Carr, argues that (with regard to actual knowledge) the judge fell into the same error as the judge in Johnson (supra), identified in paragraph 18 of the judgment in this court in that case, in finding that Mr Carr had the relevant knowledge in 2007/8 because he knew (a) that he had hearing loss; (b) that noise could cause hearing loss; (c) that he had been exposed to noise; and thus (d) that his hearing loss had been caused by such exposure. As Johnson’s case shows, one cannot jump to point (d), simply because points (a) to (c) are satisfied.

Mr Carr’s case was that he initially attributed his hearing loss to ageing. Mr Hester submits that in the absence of a finding that Mr Carr was not believed on this point, relevant actual knowledge has to be ruled out.

It seems to me that the short answer to that point is that given by Mr Turton for Panel in his skeleton argument, namely that the judge did not believe Mr Carr on this point. He did make a finding. His finding in that respect is to be found in paragraph 21(e) of his judgment, already quoted above: “I am satisfied that at that stage [2007/8]…Mr Carr did attribute his hearing loss to his work with the Defendant…”. In my judgment, that was clearly a finding fully open to the judge on the evidence before him. He saw and heard Mr Carr giving evidence, during which Mr Carr was extensively cross-examined by Mr Turton. Mr Carr’s credibility on this point, and generally, was obviously a matter for the judge’s assessment and there is no reason to question his conclusion on the matter.

As to constructive knowledge, Mr Hester attacks the judge’s findings (at paragraph 22 of the judgment) that, given that Mr Carr accepted that there was no reason why he could not have consulted his GP within about a year of identifying his hearing loss, if he had done so, he would have been told the possible cause of his problem.

Mr Hester argues that, while Dame Janet Smith in her judgment in Johnson gave full reasons why (with her 40 years’ experience) she considered that such a GP consultation would have yielded the cause of the claimant’s hearing loss in that case, Mr Hester says that the judge here gave no such reasons and had no such experience of the nature as that possessed by Dame Janet, and, as a result, his opinion (and indeed that of Mr Carr) as to the likely outcome of a GP consultation should have been given no weight. Further, the ENT experts at trial were at odds as to the precise cause of hearing loss.

In my judgment, the judge was quite entitled to reach the view that he did as to what Mr Carr would have learnt at the hypothetical GP appointment which Mr Carr accepted could easily have been had. The judge was entitled to take into account the experience of Dame Janet Smith, recorded in the Johnson case, and even without it, he was entitled to reach the entirely common sense conclusion as to what Mr Carr was likely to have been told by his GP. Even if later medical experts eventually fell into dispute as to the precise nature of this hearing loss, it seems to me that the judge was entitled to find clear that a GP consultation would have led Mr Carr reasonably to pursue the matter and to take the decision, which he ultimately did, to bring these proceedings. It seems to me that his situation is indistinguishable for practical purposes from that of the claimant in the Johnson case: see paragraphs 28 to 31 of the judgments in that case.

That brings me to the question of the discretion under section 33 of the Act and the criticism of the judge’s decision not to exercise that discretion in Mr Carr’s favour.

Mr Hester makes the overarching submission that the judge failed to exercise his discretion correctly in the light of a number of factors, identified in paragraphs 3 to 10 of the Grounds of Appeal.

Mr Hester immediately acknowledges in his skeleton argument that the court does not lightly interfere with a first instance judge’s decision as to the exercise of discretion. He quotes Smith LJ in AB v Ministry of Defence [2010] EWCA Civ 1317 at paragraph 94 as follows:

“It is axiomatic that this court will not interfere with the exercise of discretion by the judge below unless he has misdirected himself in law, takes an irrelevant factor into account, omitted to consider a relevant factor or otherwise reached a conclusion that is irrational or clearly wrong”.

The trial in this case and the judge’s decision antedated the decision of this court in Carroll v Chief Constable of Manchester Police [2017] EWCA Civ 1992, in which Sir Terence Etherton MR drew together the general principles to be derived from the various authorities on this subject in paragraph 42 of his judgment. That paragraph was the subject of detailed submissions before us and will no doubt now form the starting point for any court’s consideration of issues arising under section 33 of the Act. The Master of the Rolls said this:

“42.

… The general principles may be summarised as follows.

1)

Section 33 is not confined to a “residual class of cases”. It is unfettered and requires the judge to look at the matter broadly: Donovan v Gwentoys Ltd [1990] 1 WLR 472 at 477E; Horton v Sadler [2006] UKHL 27, [2007] 1 AC 307, at [9] (approving the Court of Appeal judgments in Finch v Francis unrptd 21.7.1977); A v Hoare [2008] UKHL 6, [2008] 1 AC 844, at [45], [49], [68] and [84]; Sayers v Lord Chelwood [2012] EWCA Civ 1715 [2013] 1 WLR 1695, at [55].

2)

The matters specified in section 33(3) are not intended to place a fetter on the discretion given by section 33(1), as is made plain by the opening words “the court shall have regard to all the circumstances of the case”, but to focus the attention of the court on matters which past experience has shown are likely to call for evaluation in the exercise of the discretion and must be taken into a consideration by the judge: Donovan at 477H-478A.

3)

The essence of the proper exercise of the judicial discretion under section 33 is that the test is a balance of prejudice and the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant: Donovan at 477E; Adamsv Bracknell Forest Borough Council [2004] UKHL 29, [2005] 1 AC 76, at [55], approving observations in Robinson v St. Helens Metropolitan Borough Council [2003] PIQR P9 at [32] and [33]; McGhie v British Telecommunications plc [2005] EWCA Civ 48, (2005) 149 SJLB 114, at [45]. Refusing to exercise the discretion in favour of a claimant who brings the claim outside the primary limitation period will necessarily prejudice the claimant, who thereby loses the chance of establishing the claim.

4)

The burden on the claimant under section 33 is not necessarily a heavy one. How heavy or easy it is for the claimant to discharge the burden will depend on the facts of the particular case: Sayers at [55].

5)

Furthermore, while the ultimate burden is on a claimant to show that it would be inequitable to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the defendant is, or is likely to be, less cogent because of the delay is on the defendant: Burgin v Sheffield City Council [2015] EWCA Civ 482 at [23]. If relevant or potentially relevant documentation has been destroyed or lost by the defendant irresponsibly, that is a factor which may weigh against the defendant: Hammond v West Lancashire Health Authority [1998] Lloyd’s Rep Med 146.

6)

The prospects of a fair trial are important: Hoare at [60]. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims, especially when any witnesses the defendant might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why: Donovan at 479A; Robinson at [32]; Adams at [55]. It is, therefore, particularly relevant whether, and to what extent, the defendant’s ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents: Robinson at [33]; Adams at [55]; Hoare at [50].

7)

Subject to considerations of proportionality (as outlined in (11) below), the defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount: Cain v Francis [2008] EWCA Civ 1451, [2009] QB 754, at [69].

9)

It is the period after the expiry of the limitation period which is referred to in sub-subsections 33(3)(a) and (b) and carries particular weight: Donovan at 478G. The court may also, however, have regard to the period of delay from the time at which section 14(2) was satisfied until the claim was first notified: Donovan at 478H and 479H-480C; Cain at [74]. The disappearance of evidence and the loss of cogency of evidence even before the limitation clock starts to tick is also relevant, although to a lesser degree: Collins v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 717, [2014] PIQR P19, at [65].

9)

The reason for delay is relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction: Cain at [73]. I consider that the latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant’s ability to defendant the claim.

10)

Delay caused by the conduct of the claimant’s advisers rather than by the claimant may be excusable in this context: Corbin v Penfold Company Limited [2000] Lloyd’s Rep Med 247.

11)

In the context of reasons for delay, it is relevant to consider under sub-section 33(3)(a) whether knowledge or information was reasonably suppressed by the claimant which, if not suppressed, would have led to the proceedings being issued earlier, even though the explanation is irrelevant for meeting the objective standard or test in section 14(2) and (3) and so insufficient to prevent the commencement of the limitation period: Hoare at [44]-[45] and [70].

12)

Proportionality is material to the exercise of the discretion: Robinson at [32] and [33]; Adams at [54] and [55]. In that context, it may be relevant that the claim has only a thin prospect of success (McGhie at [48]), that the claim is modest in financial terms so as to give rise to disproportionate legal costs (Robinson at [33]; Adams at [55]); McGhie at [48]), that the claimant would have a clear case against his or her solicitors (Donovan at 479F), and, in a personal injury case, the extent and degree of damage to the claimant’s health, enjoyment of life and employability (Robinson at [33]; Adams at [55]).

13)

An appeal court will only interfere with the exercise of the judge’s discretion under section 33, as in other cases of judicial discretion, where the judge has made an error of principle, such as taking into account irrelevant matters or failing to take into account relevant matters, or has made a decision which is wrong, that is to say the judge has exceeded the generous ambit within which a reasonable disagreement is possible: KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 783, [2003] 3 WLR 107, at [69]; Burgin at [16].”

While, of course, counsel directed argument to the individual issues pointed up by section 33(3) of the Act and in the Master of the Rolls’ recent judgment, it is clear from that judgment that the court’s discretion is unfettered and requires the matter to be looked at broadly; all the circumstances of the case have to be considered: paragraph 42(1) and (2) of the judgment.

The court has to perform an overall assessment and, in my view, in considering the decision of a trial judge, this court must not assume that each and every factor mentioned by such a judge was treated by him or her, or should be treated by this court, as having had equal weight in the overall assessment. Allowances need to be made for judges who, having heard evidence, produce judgments on such issues, giving to the parties a clear explanation of why one has won and the other has lost, without running the danger of finding that the possible “shakiness” of one or other brick in the wall undermines the overall conclusion, unless, of course, it is a foundation stone that proves to be unsound.

Mr Hester attacks, first, what he says was the failure by the judge to consider prejudice to Mr Carr, presumably owing to the passage of time in conduct of the proceedings and in the potential loss of his claim, although these features were not expressly identified in the grounds or in the skeleton argument. In oral submissions, Mr Hester made clear that he relied on both aspects of prejudice to his client.

The second element of potential prejudice (the potential loss of the claimant’s claim) hardly needs mentioning in any case of this type. That is what limitation issues are about. In my judgment, the issue does not need to be expressly raised by a claimant in pleading or argument; it can be “taken as read”. For the same reason, a judge does not have to mention that point expressly in a judgment on the point to avoid criticism of his evaluation later.

In his oral submissions, Mr Turton argued that the prejudice to a claimant, for the purposes of section 33(1), relates exclusively or at least mainly to the prejudice caused by loss of his or her claim and not to prejudice in the litigation more generally.

I do not think that that is correct. The wording of section 33(1)(a) is quite general with regard to prejudice to a claimant and is in precisely the same terms as section 33(1)(b) relating to prejudice to a defendant. As I have said already, potential prejudice to a claimant by the loss of his or her claim is the universal consequence of a claimant losing a limitation argument. Further, the Master of the Rolls said in paragraph 42(3) of his judgment in Carroll (supra) that the burden was on the claimant to show that his or her prejudice would outweigh that to the defendant. This must presume that factors of prejudice, beyond mere loss of the claim itself, can be advanced by a claimant in argument on the application of section 33 in any given case in order to satisfy that burden. In the same paragraph of the judgment, the Master of the Rolls said,

“Refusing to exercise the discretion in favour of a claimant who brings the claim outside the primary limitation period will necessarily prejudice the claimant, who thereby loses the chance of establishing the claim.”

However, in my judgment, I do not consider that the judge can be faulted on this aspect of the case. This is simply because Mr Carr did not raise, either in his pleadings or in his evidence, any specific issue of prejudice caused to him by the passage of time to meet the burden that was on him in this respect. Indeed, the witness statement said nothing at all as to why any discretion under the Act should be exercised in his favour. When in the course of argument, Mr Hester was asked to direct us to areas in which specific points of prejudice had been advanced on Mr Carr’s behalf either in the documents or in argument, it seemed to me that he could only direct us to other issues raised in his closing submissions at trial (e.g. paragraphs 65 and 67) attacking the elements of prejudice which had been specifically raised not on behalf of Mr Carr but on behalf of Panel.

In the absence of identified elements of litigation prejudice having been raised on the part of a claimant, I do not consider that a judge can be faulted for simply addressing those points that had been advanced by the parties, as the judge seems to have done here.

The relative prejudice suffered by each party in this case permeated the arguments of counsel raised in their helpful written material and oral submissions. Before proceeding further with individual isolated points raised in the grounds of appeal, it seems to me to be convenient to bring out some further general points that were canvassed in argument by both counsel.

In particular, Mr Hester argues with force that much of the prejudice advanced by Panel, as redounding to its disadvantage, would have been inherent even in a claim begun within the limitation period. This is, he says, a feature present in many cases of historic noise induced hearing loss. In this case, he submits that even in an action begun in 2010, the witnesses would have gone as would the machines and the documents. There was really no difference now.

Mr Hester accepted, of course, that, once the primary limitation period was passed, earlier delay can be relevant, as emerges most clearly from the speech of Lord Oliver in Donovan v Gwentoys Ltd. (supra) which was cited by the learned District Judge at paragraph 27 of his judgment. The passage in Lord Oliver’s judgment is as follows:

“The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff’s claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses’ memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within the prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff’s failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant. It is clear from the judge’s judgment that, because sub-paragraphs (a) and (b) of section 33(3) of the Act of 1980 focus particular attention on the time elapsing after expiry of the limitation period, he felt constrained to regard the time which had to been allowed to pass prior to that date as something which had to be left wholly out of account. In my judgment, he was wrong to do so and that necessarily vitiated the exercise of his discretion.”

Obviously, however, as appears from paragraph 42(8) of the judgment in Carroll, it is the period after the expiry of the limitation period that carries greater weight than periods after the claimant has “knowledge” for the purposes of section 14(2) or any period prior to that: see Collins v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 717 at [65] per Jackson LJ.

I return now to the further individual grounds of appeal.

In ground 4, Mr Hester argues that the judge failed to take into account the date of which Panel was first notified of the claim. The date was June 2012. On that date Mr Carr’s solicitors sent the letter of claim and Panel’s insurers could be taken to know of the nature of the matters alleged. This might have been only about 2 years from the expiry of the limitation period and thereafter proceedings were begun only a year later in August 2013.

It is true that notification can be of relevance to the exercise of the section 33 discretion and the judge did not specifically mention it in his judgment in this case. However, the question must always be the extent of the relevance in the individual case. Here, it is not clear what it is that Panel was supposed to make out of the notification of the claim. The insurers had no materials against which to gauge the strength or otherwise of Mr Carr’s claim; that could only begin to emerge once proceedings began, when Mr Carr’s statement was served and the expert evidence began to be gathered in. As Mr Garry’s first report exposed, Mr Carr’s claim was woefully short of detail, a point to which I return below in considering the possibility of a fair trial of this claim.

On the facts of this case, it does not seem to me that the date of the notification of the claim could have borne any particular relevance in the exercise facing the judge.

In Grounds 5 and 6, Mr Hester argues that the judge erred in taking into account, in Panel’s favour, of a particular feature of the medical evidence. The judge’s point was made in paragraph 25(b) of the judgment as follows:

“(b)

The extent of which, having regard to the delay the evidence adduced by the Claimant or Defendant is or is likely to be less cogent than if the action had been brought in time. In that regard there is in my judgment a diminution in the cogency of the medical evidence that has arisen as a result of the period of the delay. The Claimant’s medical expert, Mr Parker, contends that his audiometry (undertaken in 2012) is more accurate than that undertaken on behalf of the Defendant’s expert, Mr Jones (in 2014), for a number of reasons, but for these purposes because it was undertaken closer in time to the alleged exposure to noise. His evidence was that there remains noise induced hearing loss within the audiometry undertaken for Mr Jones, but that its presence is effectively “masked”, chiefly by additional low frequency losses. It follows that on the Claimant’s own case, Mr Jones’ audiometry would have been more cogent had it been undertaken earlier; …”

Mr Hester argues that the judge’s point was simply wrong on the evidence. He submits that in a further test (a speech audiogram) conducted by Mr Jones, at the same time as his audiogram showed that there was no difference in Mr Carr’s hearing over the two year period from 2012 to 2014. There was thus no prejudice to Panel in a lack of cogency in Mr Jones’ evidence and the judge should not have taken it into account. Mr Hester also criticises the judge for not bringing this point to the attention of the parties before relying upon it as part of the route to his final decision.

Mr Turton argues that the judge was not wrong in noting that the audiograms conducted by Mr Parker in 2012 and that of Mr Jones in 2014 were different, in that Mr Jones’s first test did not support a diagnosis of noise induced hearing loss. To that extent, the flaws in Mr Jones’s testing emerged in a way which would not have occurred if his testing had been done in 2012. He was to that degree at a disadvantage, even if the speech audiogram manifested no change in Mr Carr’s hearing in the two year period.

Mr Turton accepts that the point had not been adumbrated by the judge before judgment. However, he argues that the case had reached a point where other factors were sufficiently weighty to defeat Mr Carr’s argument that the discretion should be exercised in his favour.

In my judgment, the point raised by the judge here was (at best) of limited validity and clearly it should have been raised by him with the parties and submissions should have been invited upon it. The question remains, which I address below, whether it is a matter that vitiates the judge’s decision to refuse to exercise discretion in favour of Mr Carr.

In Grounds 7 and 8, Mr Hester attacks the judge’s approach to the features of delay and lapse of time, as it affected the relative prejudice to Mar Carr and to Panel.

With regard to delay on Mr Carr’s part, the judge noted his failure to take advice, medical or legal, after he became aware that his hearing loss was attributable to his work (paragraph 25(e)). Indeed, he had already recited (at paragraph 13) that Mr Carr had consciously avoided taking medical advice when his hearing loss became apparent, simply because he did not wish to use hearing aids when only in his early 50s.

The judge also took into account the fact that Mr Carr did not consult solicitors at all until January 2011 when he was solicited by the unexpected advertising “flyer” that arrived at his home (even though he was aware generally of “no win, no fee” arrangements for personal injury cases). Thereafter, there was unexplained delay prior to Mr Parker being consulted in February 2012. There was then a further period of 11 months, noted by the judge, between the receipt of Mr Parker’s medical report and the inception of the proceedings to restore Panel’s name to the Register of Companies. Only then, in late August 2013 (2 ½ years after the first instruction of solicitors) was the claim form in this action issued.

Mr Hester criticises the absence of evidence adduced by Panel as to the prejudice suffered by it as a result of the passage of time in the various periods. The judge was clearly influenced by the overall length of time that had passed since Mr Carr’s period of employment and the loss of witnesses and documentation relating to the precise activities carried out by Mr Carr when in this job.

At paragraph 28 of the judgment, the judge said this:

“28.

Mr Hester further submits that the Defendant has not adduced any specific evidence of prejudice, which, he contends, pursuant to “Horton” (above) should be held against the Defendant. However, and bearing in mind that the Claimant’s employment ceased around 30 years prior to the issue of proceedings, I consider that I am entitled to draw the inference that the Defendant has been seriously prejudiced in their ability to enquire about the nature of the Claimant’s employment (which was a roving one within the factory rather than his being assigned to an individual machine or machines), the extent of the Claimant’s use of the machines, the noise levels emitted etc. The fact that the Claimant had to apply restore this company to the register, following it being dissolved in 1986, would tend to suggest on a balance of probabilities, that there have not been other claims, or at least litigated ones. They may have afforded the Defendant the benefit of the knowledge obtained in their investigation. The report of the jointly instructed engineer, Mr Garry, which appears at page 248 of the trial bundle, provides further evidence of prejudice at paragraphs 4.1, 4.2, 4.4, 4.8, 4.14, 5.2, 5.3, and 5.6. The difficulties encountered by Mr Garry in calculating NIL levels impinges not just on the issue of breach of duty, but also upon the very foundation of the medical evidence, with both medical experts agreeing that a diagnosis of noise induced hearing loss cannot be sustained in the present case without an NIL level of 100 dB.”

Mr Hester submits that the judge was overplaying the difficulties caused to Panel in the action by the passage of time (pre-limitation period) in the case. However, while noting in this context what the Master of the Rolls said in paragraph 42(6) of his judgment in Carroll, which I have quoted and will not repeat, it seems to me that there was a clear example of the disadvantage to Panel in this respect by what occurred after receipt of Mr Garry’s first report.

As I have already noted, Mr Garry’s report of 12 November 2014 brought out a number of difficulties in expressing an opinion about the noise exposure that might have been experienced by Mr Carr in this case. The difficulties arose entirely because of the extremely sketchy description in Mr Carr’s statement (which had been made 4 years earlier) of the machines used at the works and periods in which he had worked on each machine. This resulted in the solicitors going back to their client and obtaining from him some more information tailored to meeting the gaps in his case that had been identified in Mr Garry’s report. This new material was put to Mr Garry, in a letter of 24 November 2014, in the guise of a question under CPR Part 35: “Please confirm whether this tool usage exposed the Claimant to noise levels above the threshold limit of 90db(A), Leq”.

As mentioned above, Mr Carr was permitted by the judge to adduce further evidence to supplement his witness statement, in accordance with the information given in the letter of 24 November 2014. There is no criticism of the judge’s decision to allow this further evidence. However, in my judgment, it demonstrated the truth of the judge’s conclusion (at paragraph 30 of the judgment) that, “The delay is such that the Defendant is left at the mercy of the Claimant’s recollection”. It was evidence that Panel could not counter, save by reference to Mr Carr’s general credibility.

In ground 9, criticism is levelled at the judge’s perceived failure “to take into account, or consider at all, whether any evidential difficulty in now assessing noise levels was due to a historic failure in breach of duty by the Defendants”.

For my part, I cannot find any fault by the judge in this respect. The question of breach of duty (presumably in noise testing and/or record keeping) is entirely speculative. No conceivable criticism can be levelled at Panel in the present circumstances.

The final ground of this appeal is ground 10 in which it is submitted that the judge failed to take into account the period that was required to obtain from the Inland Revenue copies of documents evidencing Mr Carr’s periods of employment, as required to be provided to a potential defendant by the Pre-action Protocols. We were told by Mr Hester, without reference to any evidential material before the judge, that this period was from February to July 2011. It is submitted that this partly accounted for the delay which the judge regarded as having been “unexplained”.

In my judgment, however, the judge was correct to identify the periods which he did as being unexplained. There was no reason why this inquiry of the Inland Revenue had to hold up the instruction of a medical expert in the period between January 2011 and February 2012. Nor does it explain why there was further delay in initiating proceedings for the restoration of the company’s name to the register and the ultimate issue of proceedings.

I have already mentioned above, in relation to grounds 5 and 6 that the judge may have erred in putting into the scales his own point arising out the differences in the audiogram results. I ask myself whether that vitiates his decision as to the exercise or otherwise of the section 33 discretion. I do not think that it does.

In my judgment, one must not overemphasise any particular element in the list of criteria set out in section 33(3). Nor is the helpful guidance given by the Master of the Rolls in Carroll to be read as a statute. The essential question, as the Master of the Rolls put it, “is a balance of prejudice and the burden is on the claimant to show that his or her prejudice would outweigh that of the defendant”.

It was to be taken as read that Mr Carr would be prejudiced by the loss of his claim if Panel’s limitation defence succeeded. Mr Carr was able to rely on his own testimony, without fear of contradiction by any witness or documents from Panel’s side. This is amply illustrated by the leeway given to Mr Carr to bolster the obvious weaknesses in his own original evidence by expressly dealing with the gaps in his evidence pointed up in Mr Garry’s first report. He had a distinct advantage over Panel in this respect. Short of challenge to Mr Carr in the witness box and some material arising from the expert evidence, Panel could have no idea of the strength or weakness of Mr Carr’ case. The judge was entitled to have regard to the elements of prejudice to Panel which he identified.

The claim was a very old one. The judge had disbelieved Mr Carr on the questions of when he first noticed hearing loss (2010- as pleaded- or 2007/8) and when he began to attribute any such loss to his employment. Mr Carr had taken no medical advice and had deliberately refrained from doing so for no better reason than to avoid the possibility of having to use hearing aids at a relatively young age. He did nothing about the matter until solicited to make a claim against his former employer.

The judge correctly identified the periods of unexplained delay in the pursuit of the claim from January 2011 until August 2013. He correctly found that Panel’s own conduct could not be subject to criticism.

In my judgment, the judge correctly took into account the various factors which he identified, with the possible omission of the point arising out of the audiometry which he should have canvassed with counsel before deploying it as part of his decision. However, as Mr Turton submits, the other material upon which the judge relied for his ultimate decision demonstrated that he was fully entitled to decide not to exercise his discretion in Mr Carr’s favour.

In my judgment, on overall consideration of the judge’s decision, I do not consider that he went outside the bounds of his reasonable discretion in the matter.

If and in so far as any criticism can by properly levelled at the judge’s decision, I consider that this court could properly re-make the section 33 decision and should reach the same conclusion as did the judge. In my judgment, the cumulative features of this case to which I have already referred in this judgment, excluding the factor relating to the audiometry results, added in by the judge of his own initiative, amply justified his conclusion not to exercise discretion in Mr Carr’s favour. My reasons for so holding appear from what I have said above.

In a case such as the present, I would add into the scales the question of proportionality in permitting this very old, low-level claim to proceed further: see paragraph 42(12) of the Master of the Rolls’ judgment in Carroll. The claim has already given rise to costs far in excess of what could conceivably be justified in pursuit of a claim for £7,000.

Mr Hester argued that this was not a case in which limitation was decided as a preliminary issue and all the costs had been expended by the end of the trial. The judge, therefore, had no reason to bring “proportionality” into the limitation equation. He further argued that we should not do so either, if we reached the conclusion that the judge had reached a decision to which he had not been entitled to come in the exercise of his discretion and if we had to exercise the discretion afresh.

In my judgment, in exercising any discretion of our own, I consider that it would be very material that, if we were to reverse the judge’s decision on the limitation point, (as was common ground) the case would have to go back to the County Court for further consideration and very possibly for the hearing afresh of the evidence and submissions relating to at least some of the factual, medical and engineering issues. It is as though we were considering the limitation points as a preliminary issue. One factor for our consideration, therefore, would be the prospect of further costs being expended in pursuit of and in defence to this low level claim, which has been pursued far from actively by Mr Carr in the period since he became aware of his hearing loss and since he became aware that it was attributable to his employment with Panel.

I have found that the judge was entitled to reach the conclusions that he did and that it is not necessary, therefore, for us to remake the decision in the exercise of our own discretion. However, if it had been so necessary, I would also decline to allow the claim to proceed outside the primary limitation period.

As already indicated, Mr Hester’s submission is that, on 15 March 2015 the judge should not have permitted Mr Turton to advance submissions to him on what turned out to be the sole point of contention at the hearing at which judgment was to be formally handed down. He relies upon the decision of this court in Jolly v Jay, concerning the old practice in this court governing applications for permission to appeal.

In the Court of Appeal, on the application for permission to appeal, it remains primarily a matter for the applicant to persuade the court to grant permission. The court does not hear from the respondent, although there has recently been introduced a procedure whereby respondents (if so advised) are permitted, and indeed are encouraged, to submit brief statements as to why they say permission should be refused. The right to renew in open court an application for permission to appeal refused on the papers by the Single Judge has been abolished from October 2016. Both before and after such changes, the respondent does not usually attend an application which is made in court unless invited by the court to do so and, if he or she does so attend uninvited, there is unlikely to be any costs order in his or her favour.

However, that procedure does not apply at first instance. If a trial concludes with an ex tempore judgment and the losing party applies for permission to appeal, the successful party will invariably be heard by the judge, unless the judge decides to refuse permission without hearing from the winner. The same is also true, in my experience when a judgment is circulated in advance in draft but (perhaps unusually) is handed down at a hearing at which both parties are present. Even if there is no such hearing, the court will usually accept submissions in writing from both sides on any application for permission to appeal. That practice is followed in the Court of Appeal if an unsuccessful party wishes to apply for permission to appeal to the Supreme Court.

I can see no reason why the judge should have declined to hear Mr Turton on the permission to appeal application and he was, therefore, to my mind entitled to say that the costs should be costs in the case.

For the reasons given, I would dismiss both appeals.

I agree.