Nigel Mott v Environment Agency

Since at least 1979, Nigel Mott (“the Claimant”) has sought to operate a putcher rank in the River Severn Estuary as a commercial enterprise. He has the benefit of a leasehold interest in 650 putchers which are designed to catch salmon and sea trout by a very old fishing technique that employs baskets to trap the fish as they pass over the putcher rank with the tide.

To exercise his right to fish, the Claimant must obtain a licence from the Environment Agency (“the Defendant”), the public body with responsibility for issuing licences pursuant to the Salmon and Freshwater Fisheries Act 1975 (“the 1975 Act”).

Since 1 January 2011, the Defendant has been empowered, pursuant to paragraph 14A of Schedule 2 to the 1975 Act, to impose conditions on fishing licences “where it considers it necessary to do so for the protection of any fishery”.

From 2012 the Defendant imposed conditions on the Claimant’s fishing licence that had the effect of substantially reducing the profitability of his business. The Claimant alleges that in consequence, by about 2017, his business had completely lost viability.

The Claimant brought two claims for judicial review against the Defendant, alleging that the decisions to impose conditions in the 2012, 2013 and 2014 fishing seasons were unlawful. Those proceedings are dealt with in greater detail below. They were finally resolved by an award of damages in favour of the Claimant in a judgment handed down on 18 July 2019 (R (Mott) v Environmental Agency [2019] EWHC 1892 (Admin)), after which followed a further Order addressing interest and costs made on 12 August 2019.

In these proceedings the Claimant seeks damages pursuant to the Human Rights Act 1998 (“the 1998 Act”) as the alleged victim of unlawful acts, namely the interference with the exercise of his fishing rights without compensation. He alleges that the imposition of catch limit conditions on his fishing licences in the 2015, 2016, 2017 and 2018 seasons amounts to an unlawful interference with his rights under Article 1 of the First Protocol to the European Convention on Human Rights (“A1P1”).

His claim was issued on 17 December 2020.

The preliminary issue I must determine is whether the period for bringing these proceedings should be extended in order to allow them to proceed. I am grateful to both Counsel for their assistance.

The claims for judicial review in the Administrative Court challenging the decisions made to impose conditions on the Claimant’s fishing licences in 2012, 2013 and 2014 were determined by HHJ David Cooke sitting as a Judge of the High Court on 13 February 2015 (Order sealed on 26 February 2015). HHJ Cooke decided that the decisions were irrational because they were based, in part, on a report (the Exeter Report) that did not provide a reasonable basis for concluding that the putcher rank was having a material effect on salmon fishing in the River Wye (the asserted justification for the environmental controls). He decided each of the Defendant’s decisions was unlawful and interfered with the Claimant’s enjoyment of his possessions in breach of his rights under A1P1. HHJ Cooke further decided that even if the Defendant had been entitled to impose the disputed conditions on the Claimant’s catch limit, it could only have avoided a breach of the Claimant’s rights under A1P1 by payment of compensation.

The Defendant pursued an appeal against HHJ Cooke’s Order. Both parties agreed that the assessment of damages consequent upon his Order should await the outcome of the appeal.

The Court of Appeal upheld the Defendant’s appeal in part but confirmed HHJ Cooke’s conclusion that each of the three decisions amounted to an unlawful interference with the Claimant’s rights under A1P1 in the absence of compensation.

The Defendant pursued a further appeal to the Supreme Court on this issue. On 14 February 2018 the Supreme Court dismissed the Defendant’s appeal. After emphasising the need to draw a “fair balance” between the demands of the general interest of the public in environmental protection and the requirements of the protection of an individual’s fundamental rights, Lord Carnwarth said:

The claim for damages pursuant to section 8 of the 1998 Act was remitted to the Administrative Court for assessment.

Three weeks later, the first intimation of the Claimant’s intention to pursue a claim for the 2015-2017 fishing seasons was given by letter dated 6 March 2018. The letter sought the agreement of directions to resolve the outstanding issue of damages. The Claimant’s solicitors wrote, “our instructions are that catch restrictions were imposed on our client additionally for the seasons 2015, 2016 and 2017”. The position taken by the Claimant, was that “In our view it was plainly inappropriate and disproportionate for our client to commence Proceedings in relation to these years prior to the Supreme Court Judgment being handed down.”

The Defendant was invited to agree that it had breached the Claimant’s rights under A1P1 because of its decisions in relation to the 2015, 2016 and 2017 fishing seasons and that “this breach can only be remedied by the payment of compensation. We would further suggest that it would be proportionate in respect of costs for the assessment of these damages to [be] dealt with as part of the assessment ordered to be remitted to the High Court by the Supreme Court.”

The Defendant responded by letter dated 21 March 2018. It noted that the direction to remit the damages assessment to the High Court was “open-ended: the assessment does not have to be made by a particular deadline. That said, the Environment Agency is keen to resolve the only outstanding issue of damages without delay.” The Defendant sought particulars of the damages claimed so that an informed settlement offer could be made.

In relation to the claim for the 2015-2017 years, the Defendant said this, “Your letter refers to seeking damages also for the 2015-2017 fishing season, even though the extant proceedings only relate to the 2012-2014 fishing seasons. Before we can advise you of our position in relation to these more recent years, you will need to set out … full particulars of why you say the Agency breached your client’s A1P1 rights for the 2015-2017 fishing seasons. Currently we do not have any pleaded case from your client in relation to these years.

The Defendant enclosed a copy of the Habitats Regulations Assessments for each of the fishing seasons in 2015-2017 inviting an explanation of the Claimant’s case; and particulars by which any losses could be calculated.

The letter ended by saying “Our objective in asking for this information is to make a negotiated settlement more likely, avoiding the need for further protracted court proceedings.” It was not clear from the terms of the letter whether this referred to the assessment of damages in the extant claim or the intimated claim with respect to the later period.

The Claimant responded by letter dated 27 September 2018. In relation to the 2015-2018 seasons (Footnote: ¹) it argued that the distribution between licensees was only one aspect of the reasoning of the Supreme Court. The Claimant’s solicitors wrote, “The restrictions imposed upon our client both in the period 2012 to 2014 and also in the period 2015-2018 had the effect of taking away his business at a stroke. This was the most important factor in the Court’s conclusions with regard to the breach of the A1P1 rights, and not the relative imbalance between our client and the lave netsmen.”

The Claimant’s position was that he now had a defunct business because of the severity of the limits imposed for the period 2015-2018. He alleged it was no longer commercially viable to undertake the work necessary to maintain the putcher rank and keep it in good repair. By 2017 the rank had deteriorated to such an extent that the Claimant did not fish in 2017 or 2018, despite having a licence to do so. His claim for the 2015-2018 period was quantified at £135,724.26 and evidence was provided in support of this sum. A period of 21 days was offered for settlement proposals.

On 18 July 2019 HHJ Cooke handed down his judgment awarding the Claimant damages by way of compensation for the impact of the 2012-2014 decisions in the sum of £187,278. He made a further Order on 12 August 2019 dealing with interest and costs in the absence of agreement having been reached by the parties on these issues.

One of the issues HHJ Cooke identified as falling for decision as part of the assessment of damages hearing was whether the Claimant was entitled to claim for losses in years later than 2014. That issue arose because the Claimant had sought to extend its claim for damages to include the later period at the stage of the assessment of damages (see paragraph 6 of the judgment).

HHJ Cooke addressed this part of the claim in his judgment in this way:

In calculating the compensation due to the Claimant, HHJ Cooke rejected the approach submitted by the Defendant. The Defendant had argued that the correct approach was to calculate compensation on the basis that the Defendant could and should have taken an alternative, lawful decision to restrict the Claimant’s catch. The Defendant argued that such a lawful decision would have set a limit of no more than 60 fish in any one year. The figure of 60 fish was in fact slightly greater than the catch limit in decisions taken in each of the fishing seasons in the 2015-18 period (namely 50 in 2015; 48 in 2016; 55 in 2017 and 58 in 2018). Part of the argument advanced in support of this submission was that in considering the Claimant’s claim for the 2012-2014 seasons, the appellate courts had held that the defect in decision-making that had resulted in a breach of the Claimant’s A1P1 rights was not the total catch allowed by the Defendant from all historic fishing licences; but rather that the allocation of that catch limit was unfair because it was divided equally between all holders of licences irrespective of the size of their holding (see paragraph 10, submission (iii)).

HHJ Cooke refused to make findings based on a counterfactual alternative that was, in any event, not evidenced. He went on to address the Defendant’s submission in this way:

The next correspondence in relation to the 2015-2018 fishing seasons was sent on the Claimant’s behalf on 3 December 2019. This amounted to a clear intention to commence proceedings to claim damages for the 2015-2018 years. The Defendant was referred to the schedule of loss already provided for calculation of the damages sought. The Claimant expressed willingness to engage in ADR.

The Defendant responded by letter dated 20 December 2019. The position taken by the Defendant was that the methodology for allocating a share of the total allowable catch had changed so as to give the Claimant a greater share than others. “Your client cannot argue therefore that in the years 2015 to 2018 his livelihood was disproportionately impacted because the decision on catch allocation failed to take account of his particular circumstances.” The Defendant also relied on the Claimant’s non-compliance with the primary time limit for bringing a claim either under the 1998 Act or for judicial review. The Defendant indicated it was not prepared to engage in ADR.

The Claimant’s solicitors replied on 6 February 2020 with a detailed pre-action protocol letter. They challenged the new methodology which sought to allocate the overall catch limit differently (by reference to the size of each licensable putcher rank though not the historic catch level), and further argued that the Defendant had unlawfully interfered with the Claimant’s A1P1 rights by reason of the absence of compensation. The number of fish he was licensed to catch was limited to 50, 48, 55 and 58 salmon in each of the fishing seasons respectively which was said to have had a fatal impact on his business and livelihood.

The Claimant argued, just as it had done in relation to the 2012-14 seasons, the Defendant had failed to have any or any proper regard to the impact of these conditions, the nature of the Claimant’s fishery as a commercial enterprise, the Claimant’s reliance on the putcher rank as a means to earn his livelihood and whether the imposition of the catch limits unlawfully interfered with his A1P1 rights in the absence of compensation. The Claimant alleged that the extent of the catch limits imposed in each of the 2015-2018 fishing seasons were so severe that he was left with a “dead business” because the operating costs of running the fishery exceeded the income received; and it was not economically viable for the Claimant to incur the expense of the work necessary to maintain the rank. In consequence he had not been able to fish at all in 2017 or 2018 because the business had collapsed. His solicitors asserted, “The catch limits imposed in the period 2015 to 2018 amounted to a de facto deprivation of our client’s property and in the absence of the payment of compensation, our client is entitled to damages” which were said to be of the order of £135,724.26.

Notice of intention to commence proceedings after 27 February 2020 was given.

The Defendant replied on 20 February 2020, addressing only the delay in bringing the claim and that any claim would be substantially outside the primary limitation period of one year. There was no response to the detailed substantive points raised.

On 11 March 2020 the Claimant sent a short holding reply following Counsel being instructed.

On 24 July 2020 draft Particulars of Claim were sent to the Defendant, setting out the Claimant’s case in full and addressing its case on limitation. In the body of the letter, the Claimant expressed concern that further litigation would “attract the attention” of the Claimant’s co-lessee who had been joined into the earlier proceedings after the claim had been remitted by the Supreme Court. The dispute with the co-lessee remained unresolved. The solicitors wrote, “in addition to the severe disruption caused by the COVID-19 public health emergency, circumstances have been complicated by dealing with that unresolved dispute.”

The Claimant notified the Defendant that in the absence of a satisfactory response, proceedings would be issued after 14 August 2020 without further notice.

The Defendant replied on 14 August 2020. It maintained its position that any claim would be “statute-barred” and that the Claimant had failed “to provide a credible explanation for his egregious delay”.

On 17 December 2020 the claim was issued. On 18 March 2021 the Claimant notified the Defendant that the Claim Form had been issued. Particulars of Claim are dated 13 April 2021; they and the Claim Form were served under the cover of a letter from the Claimant’s solicitors to the Defendant dated 13 April 2021. The Defence is dated 11 May 2021.

The claim asserted (in very summary terms) that the Defendant’s decisions imposing terms on the Claimant’s licences had such a substantial impact on the Claimant and his livelihood that they were closer to a deprivation of his property rights than control of them; and in the absence of compensation they amounted to interference with his A1P1 rights.

In its Defence, the Defendant argued that the disputed decisions amounted to legitimate controls on the Claimant’s enjoyment of his leasehold interest and that the Defendant had adjusted its methodology to take account of the Claimant’s position. Limitation was raised.

Directions questionnaires were filed by both parties. The Defendant stated within its questionnaire that there was no prospect of settlement and, “The Defendant resists the claim in its entirety on limitation grounds.” It indicated an intention to apply to have limitation determined as a preliminary issue.

In directions made on 4 April 2022, DDJ Fowler gave directions for the preliminary issue to be tried. His Order provided for the Defendant to file and serve a witness statement in support of its contentions with the Claimant to file and serve a witness statement in response.

In the event the Defendant chose not to rely on witness evidence but filed written submissions.

The Claimant did make a witness statement. He confirmed the factual background pleaded in the Particulars of Claim and made the following key points relevant to the specific issue of limitation:

The 1998 Act provides for a “victim” of an unlawful act perpetrated by a public authority to bring proceedings against the authority (section 7(1)). A public authority acts “unlawfully” within the meaning of the 1998 Act if it contravenes section 6(1) of the 1998 Act by acting in a way which is incompatible with a Convention right.

Section 7(5) provides as follows:

Lord Dyson sitting in the Supreme Court in Rabone v Pennine Care NHS Trust [2012] UKSC 2 set out the relevant principles to apply when approaching the discretion in section 7(5)(b) at paragraph 75 of his judgment:

The discretion is thus open-ended and unfettered.

On the facts of Rabone, the Supreme Court extended time, finding that the factors which strongly militated in favour of granting the extension were the level of extension sought (less than four months); the absence of any suggestion that the evidence had become less cogent or that there was prejudice caused by the delay; the claimants had acted reasonably in all the circumstances; and the claimants had a good claim for breach of Article 2 (described by the Court as the most important factor).

More recently, the Court of Appeal in Solaria Energy UK Ltd v Department for Business, Energy and Industrial Strategy [2020] EWCA Civ 1625 considered how the discretion should be exercised. The Court upheld the decision of the judge at first instance not to extend time in circumstances in which no letter of claim was sent until about five years after the act complained of and the claim was not issued until six years and 11 months after the decision complained of (almost six years after the expiry of the primary limitation period). The claimant had been aware of litigation being pursued by others in a similar position during that period and could offer no “intelligible” answer to the question of why the delay had occurred. Further, the defendant had filed evidence to demonstrate prejudice.

In that context, Coulson LJ considered the relationship between the timing of the claim and “all of the circumstances” in section 7(5)(b) of the 1998 Act. He found that section 7(5) was “plainly a limitation provision”. While noting that there was no limit on the circumstances that might be relevant to the enquiry of whether it was equitable to allow the claim to proceed, he regarded it as “common sense” to consider primarily the circumstances relevant to the delay. These included questions such as “what is the overall period of delay on the part of the claimant? Why did it occur? Is there a good reason for it? What was the conduct of the defendant during that period of delay? What effect did the delay have on both parties and any future trial?” as well as the considerations relevant to the exercise of discretion under section 33 of the Limitation Act 1980.

He did not accept that prejudice to the defendant because of the delay should be elevated into the most important factor but was one of the circumstances to be taken into account in an open-ended examination of all of the circumstances. Depending on those circumstances, “the length of any delay can, in the right case, be sufficient, without more, for the court to strike out a claim as having been commenced outside section 7(5)(b)” (see paragraph 70 of the judgment).

In a recent first instance decision, Collins Rice J considered cross applications to extend time and to strike out the claim as being out of time in Rafiq v Thurrock BC [2022] EWHC 584 (QB). She noted that there was no pre-determined list of factors for the court to examine when considering whether it was equitable for a claim made outside the limitation period to proceed, “although proportionality will generally be taken into account”.

Reference was made to P v Tameside MBC [2017] 1 WLR 2127 for the principles to apply. Firstly, the weight to ascribe to any particular factor is a matter for the Court. Secondly, the Court must have regard to the policy reasons for the period of limitation under the 1998 Act being much tighter than usual, namely that claims under the 1998 Act should be dealt with swiftly and economically; there is no public interest in a public authority being burdened by expensive, time consuming and tardy claims brought years after the event.

When addressing where the equitable balance should be struck, Collins Rice J considered “the question of justice or fairness as between the parties” to be crucial.

The claim was issued on 17 December 2020. The 2015 decision was made on 27 May 2015; the 2016 decision made on 1 June 2016; the 2017 decision made on 26 May 2017; and the 2018 decision made on 30 May 2018.

The extension of time required in order for each claim to proceed is therefore (approximately) 4 years 7 months for the 2015 decision; 3 years 6 months for the 2016 decision; 2 years 7 months for the 2017 decision; and 1 year 7 months for the 2018 decision.

In the context of a primary limitation period of one year, Mr Lewis KC is right to argue that in each case there is significant delay in the issuing of a claim.

Until HHJ David Cooke handed down judgment on 18 July 2019 (and the period of time for applying for permission to appeal had expired), the Claimant did not know that he would succeed in recovering substantial damages for unlawful interference in his property rights by the Defendant. It is fair to recognise that until then, the course of the litigation for the 2012-14 period, including the Defendant’s appeal to Supreme Court level would not have inspired confidence that the Claimant would succeed in resolving any subsequent claim straightforwardly. It is unsurprising that the Claimant deliberately awaited the outcome of what was proving to be complex and uncertain litigation before embarking on another claim of similar type.

He does not suggest that he did not know he needed to commence proceedings within the primary limitation period or that he was impecunious in the sense that he could not have afforded to issue a further claim. But he was, not at all unreasonably, conscious of the fact that he already had a substantial financial commitment in ongoing and uncertain litigation; the other party to that litigation was a government agency with relatively greater resources; and throughout the time the litigation continued, he was severely restricted in the exploitation of his commercial fishing operation due to the ongoing effect of subsequent decisions taken by the same Defendant.

As Mr Beard submits, the effect of that combination of factors cannot be ignored and would have been plain to the Defendant at the time.

After the conclusion of the first claim, he attempted to negotiate with the Defendant in order to avoid further litigation. Despite the fact he was already outside the primary limitation period for commencing his claim, it was an explicable and reasonable approach to take in the context of the large-scale and protracted litigation that had only just concluded. It was reasonable to think that having failed in its defence to the claim for the 2012 – 2014 seasons, despite appeal to the Supreme Court, the Defendant’s attitude might be softening.

By the end of December 2019 the Defendant had made it clear that it was not prepared to negotiate. Within a reasonable period thereafter the Claimant’s solicitors sent a detailed pre-action protocol letter on 6 February 2020, indicating that proceedings would follow after 27 February 2020.

However proceedings did not follow until ten months later. A large part of that period coincided with the pandemic and first national lockdown. But notwithstanding that there would, inevitably have been some difficulty for the Claimant engaging with his solicitors and for them in carrying out instructions, just as there were difficulties for individuals and businesses throughout the country, the full extent of that final period of delay in the context of claims that were known to be already out of time is not sufficiently explained.

I accept, as Mr Lewis KC submits, that the Claimant was by then, much better placed than many litigants to understand the need to bring a claim to obtain redress, and the importance of bringing the claim in a timely fashion. The judgment of HHJ Cooke had reminded him that he already faced the hurdle of requiring an extension of time to proceed with his claim and that hurdle was mounting, the longer he waited.

It is, though, unrealistic to conclude that the extent of delay between February and December 2020 beyond that which can be fairly attributed to the pandemic was likely to be of any real significance in the overall progress and conduct of this litigation. Throughout much of 2020 there was substantial disruption to litigation generally, despite the best efforts of the Courts to maintain services during the pandemic.

Mr Lewis KC argues that the overall delay is so egregious that the Court should apply the dicta of Coulson LJ in Solaria Energy, that the length of delay can, in the right case, be sufficient, without more, for the court to strike out a claim.

He is bound to make that submission because (unlike the position in Solaria Energy) there is no evidence from the Defendant that the delay has in fact caused them any prejudice. Further, there is no evidence of any impact on the administration of justice. Evidence does, in general, become less cogent with the passage of time but it would appear that the relevant evidence in this case is well-documented.

I attach significance to the absence of evidence from the Defendant to demonstrate any prejudice or adverse impact on the administration of justice in circumstances in which specific directions were given for evidence to be filed.

The Defendant has chosen to insist on its strict legal rights and has not at any time entered into meaningful negotiations with the Claimant. In relation to the claim for the 2012-14 period, that has had the result that the Defendant has kept the Claimant out of compensation to which he has ultimately proved entitlement for between five and seven years. The period during which litigation to recover the compensation was ongoing (until 2019) coincides with almost the entirety of the period of delay in this case. As Mr Beard argues, that is an unusual and weighty factor.

I recognise the Defendant has not misled the Claimant as to the position it would take in this claim on the limitation issue. It has responded promptly to the Claimant’s correspondence, each time emphasising that it would not concede the issue.

There is also no suggestion that the Defendant has not acted in good faith in the decisions it has taken, notwithstanding the impact on the Claimant and his business.

The Claimant has certainly delayed in the issue of his claim. But he has never concealed from the Defendant his intention to pursue a claim for damages arising from the decisions relating to the 2015-18 fishing seasons if his claim for the earlier period ultimately proved to be well-founded. He sent a particularised schedule of loss for this period to the Defendant on 27 September 2018. The Claimant unsuccessfully sought to have his claim for the 2015-18 period adjudicated upon by HHJ Cooke as part of the assessment of damages hearing for the earlier period. He has set out fully in pre-action correspondence his case in relation to the substance of the claim.

Given that the Defendant must have been well aware that its decisions from 2015 would continue to impact substantially on the Claimant’s business, regardless of whether the decisions were lawful or not, the Defendant cannot have been under any misapprehension as to the likelihood that it would face further proceedings from the Claimant if the first claim was ultimately resolved in the Claimant’s favour.

Unlike the position in Solaria Energy, this claim was far from an ambush.

For the purposes of deciding this preliminary issue I must assume the merits lie in favour of the Claimant. That assumption is supported by his proven success in relation to the earlier period and the scale of damages he recovered.

I do not though in any way suggest that the Claimant would succeed if his claim were permitted to proceed. I cannot make that assessment on the evidence before me, notwithstanding the similarity in the absolute level of catch limits in 2015-18 when compared with 2012-14 and the apparent impact on his business.

The claim is for compensation for the loss of the Claimant’s livelihood derived from an established business. It is for a substantial sum and is of importance to the Claimant. This is not a trivial claim.

There is a strong interest in public bodies not being exposed to litigation long after the event, and that is a factor I must take into account. However, if the Claimant is successful, it is not suggested that the Defendant will be exposed to any other similar claims. That is because of the Claimant’s unusual position in using his fishing licence for commercial activity rather than leisure; and because of his unique position with respect to historic litigation against the Defendant.

The overall extent of the delay and the Claimant’s knowledge of the need to bring proceedings to vindicate his rights are weighty factors that count against him. But in the particular circumstances of this case when deciding where the balance of justice between the parties lies, they are outweighed by a combination of other features.

Firstly, I attach particular weight to the explanation for and context of the delay. Most importantly, it has a background to which the Defendant is inextricably linked and which has provided the Defendant with a special knowledge of the Claimant’s position.

While the litigation for the 2012-2014 seasons proceeded through the appeal courts at the instigation of the Defendant, the Claimant was being kept out of compensation for losses which ultimately have been found to be the responsibility of the Defendant. That inevitably would have made the Claimant reluctant to issue further proceedings until the ongoing litigation was resolved.

It must have been obvious to the Defendant during that time, that not only would there be a substantial delay in the Claimant receiving compensation for damage to his livelihood if it ultimately transpired he was entitled to it; but the fresh decisions the Defendant was taking contemporaneously would affect the Claimant similarly to those being litigated. The Claimant’s business was bound to be substantially affected by a catch limit representing less than 10 per cent of his previous enterprise (even if the Defendant’s subsequent decisions were lawful).

That combination of circumstances is particularly significant when considering where the balance of justice between the parties lies.

Secondly, I bear in mind that because of these circumstances, it must have been plain to the Defendant that if the Claimant was ultimately successful in the 2012-2014 litigation, he would attempt to seek redress for losses arising from the fresh decisions being made as the litigation proceeded. That was clear from the consistent tone of the Claimant’s solicitors’ correspondence from March 2018. If the Defendant had been at all unsure about the Claimant’s intentions, the Claimant’s misconceived attempt to include the losses for the later period in the assessment of damages hearing before HHJ Cooke would have disabused it.

One of the purposes of a limitation period is to avoid a party being unfairly taken by surprise when a late claim is made. This claim cannot have come as any real surprise to the Defendant because of the history to this case.

Thirdly, there is an absence of evidence to demonstrate prejudice to the Defendant or any real impact on the administration of justice because of the delay. A lack of prejudice is not decisive but it is a relevant factor when considering where the balance of fairness lies between the parties.

Fourthly, the proportionality factors weigh in favour of the Claimant.

I reject Mr Lewis KC’s submission that this case falls within the scope of the dicta of Coulson LJ in Solaria Energy (see paragraph 70 of the judgment). Although the delay is significant in absolute terms, unlike the facts in Solaria Energy, it has an intelligible explanation, the Defendant has been on actual or at least constructive notice of a likely claim throughout most of the period and no prejudice to the Defendant because of the delay is evidenced.

My conclusion is that it is equitable in all the circumstances to extend time to allow this claim to proceed. I resolve the preliminary issue in favour of the Claimant.