Davies and others v The Secretary of State for Energy and Climate Change [25.10.12]

Court of Appeal upholds decision dismissing claims by all eight lead Claimants in the Miners' Knee Group Litigation.


The courts’ discretion when considering whether to reinstate a claim under s.33 Limitation Act 1980 is broad and unfettered, taking into account all the circumstances of the case. In these cases the Claimants failed to persuade the Court that the exercise of such discretion was reasonable based upon the facts.


For the full background to this case see our case review of the first instance decision.

In summary, the eight representative Claimants, all former miners, alleged that the working conditions in coal mines in England and Wales between 1954 and 1993 were responsible for the onset and development of osteoarthritis of the knee.

This appeal concerned the question of whether they should be allowed to bring actions against the operators of the mines, long after the expiry of the applicable limitation period. A common thread between all cases was that all these men had a firm belief, as from their date of knowledge, that their knee osteoarthritis was attributable to working conditions over many years underground. However, with one possible exception, it never occurred to any of them that they could bring a successful claim until 2003 when their unions indicated that they were thinking of bring a group litigation claim.

At first instance His Honour Judge Grenfell held that the claims should not be allowed to proceed.


Giving the leading judgment, Lord Justice Tomlinson dismissed the Claimants’ appeal. In respect of the three main grounds of appeal, he held as follows:

  • Broad merits - this ground of appeal was misconceived. Although the Judge had highlighted the evidential difficulties, he did not determine that the claim had no reasonable prospect of success.
  • Impact of delay on the cogency of the evidence - the Judge was right to draw a distinction between this case and previous cases concerned with noise, dust and vibration. He found evidence of substantial prejudice to the Defendant in three specific respects. There was no error in his approach.
  • Reasons for delay - the Judge was also right to regard the Claimants’ failure to make appropriate enquiries as not telling in their favour when he came to exercise his discretion. Each Claimant had put himself into the hands of his union, but this did not entitle them to some special privileged position as compared with other claimants.