The Limitation Act 1980 can be very difficult to navigate when it comes to asbestos claims and it is important to be aware of the complex rules. Claimants and defendants will always look at limitation dates first and foremost and the fact that a claim was issued out of time can be a very strong defence. Section 11(4) of the Limitation Act 1980 states that a claim must be made within three years of the date on which the injury occurred or the date of knowledge (if later) of the person injured. Section 11(5) states that if a person dies within that three year period, then his estate can bring the claim three years from the date of death.

The date of knowledge can be very difficult to determine in asbestos cases and is defined in Section 14(1) as the date on which a person first became aware that the injury was significant, was attributable in whole or in part to the act of negligence and the identity of the defendant. Section 14(3) states that a person’s knowledge includes knowledge which s/he might reasonably have been expected to acquire from facts observable or ascertainable by him/her or with the help of medical or other appropriate expert advice which it is reasonable for him/her to seek.

Once the deadline for limitation has been determined in a case it may become apparent that proceedings were not issued in time. The claimant may decide to make an application to the court to extend the limitation period under section 33 of the Limitation Act 1980. Section 33 provides the court with the opportunity to allow an action to proceed, taking into account the extent to which the three year time bar would prejudice the claimant compared to the extent to which a removal of the time bar would prejudice the defendant. Section 33(3) states which specific issues the court should take into account, including the length of and reasons for the delay on the part of the claimant; the extent to which this delay has affected the cogency of the evidence; the conduct of the defendant; the extent to which the claimant acted promptly once he knew that he could bring a claim and the steps that he has taken to obtain medico-legal or other expert evidence.

We will now briefly discuss four cases taken from the period July 2013 to March 2016, which deal with the application of the Limitation Act to asbestos claims. We will consider whether any common threads can be drawn from these decisions.

Doris Timbrell (deceased) -v- The Ministry of Defence – 31 July 2013

The deceased was informed of the diagnosis of asbestosis on 26 August 2004 and died from a non-asbestos related cancer on 23 November 2008. The subsequent claim was notified to the defendant on 4 June 2009.

The defendant admitted liability and causation, but argued that it was not fair to disapply the limitation period as the claim should had been time barred 15 months prior to her death. However, the judge held that the decision not to issue proceedings was directly related to the effects of the asbestos exposure as the deceased was too ill to contemplate proceedings. The defendant had suffered no prejudice to the cogency of the evidence and the prejudice caused to the defendant by the loss of limitation defence was outweighed by the prejudice to the claimant were she not allowed to proceed. It was held that the limitation period should remain disapplied.

George Collins -v- The Secretary of State for Business –– 23 May 2014

This was a Court of Appeal case. The claimant was diagnosed with lung cancer in May 2002 from which he made a full recovery by 2008. His actual date of knowledge was July 2009, but the issue was in relation to his constructive date of knowledge. His claim was issued on 22 May 2012.

The Court of Appeal held that he had a constructive knowledge by the middle of 2003, meaning that proceedings were issued six years late. The Court of Appeal described the case as being difficult in relation to liability and noted that there were numerous inconsistencies between the claimant’s three witness statements as well as his oral evidence due to his advancing age. The evidence had become less cogent as a result of his six year delay and so had caused prejudice. This was a relatively low value claim where there was a disproportion between litigation costs and the sum in issue and so the claim was time barred.

Lloyd -v- Humphreys & Glasgow Limited – 20 March 2015

The claimant was diagnosed with asbestosis and settled his claim against two employers on a full and final basis on 17 November 2011. The Holtby discount was 33% of which 9% represented his employment by the defendant in the second action.

The deceased was diagnosed with mesothelioma on 22 March 2012, instructed solicitors in April 2012 but died on 7 May 2012. Limitation was argued, with the defendant alleging financial prejudice - had it been sued in the first action it would only have been responsible for 9% of the claimant’s damages, whereas now it would be responsible for 100% with limited rights of recourse against the previously sued defendants.

The deceased’s date of knowledge for asbestosis was 6 October 2008 and the second action did not commence until 31 January 2014, a period of delay of some two years and four months. The defendant’s insurer was resisting claims on the basis of the trigger litigation until the end of April 2012, but there was no good reason for the delay thereafter. Even if the claim had been issued in April 2012, the fact that the deceased died on 7 May 2012 meant that it was not realistic to suppose the defendant could have tested his evidence in that short period. Therefore, it was held that to a significant extent the defendants had brought the state of affairs on its own head.

The judge rejected the assertion that this was a weak claim as the deceased had an arguable case that his exposure was more than de minimis and negligent. A claim against his first solicitors would not be straightforward and so none of this tilted the balance against allowing the claim to proceed.

Glyn Sanderson (deceased) -v- City of Bradford Metropolitan Borough Council – 11 March 2016

The deceased was diagnosed with mesothelioma on 19 July 2010 and his claim form issued on 7 October 2013. He died on 18 January 2014 and so the period of delay prior to his death was ten weeks.

The judge correctly stated that the burden of proof under section 33 lies on the claimant and the fundamental question was whether it was fair to expect the defendant to meet the claim notwithstanding the delay. The judge accepted that there were good reasons why the deceased did not take legal advice which included the shock of the unexpected diagnosis, his desire not to leave his family with legal debts and the fact that there were more important things than bringing a claim for damages. These factors combined with the fact that the delay was not excessive and caused no prejudice weighed heavily in favour of giving an extension of time.

The conduct of the defendant was criticised here. Although the letter of claim was served on 8 October 2013 it took the defendant until 30 December 2013 to inform its insurers, who then instructed solicitors. It was this delay which contributed to the defendant’s inability to take evidence from the deceased prior to his death. The judge determined that the claimant had a strong case with good prospects of success and it would be just and fair to extend time under Section 33.

Common threads

These cases consist of two claims for mesothelioma, one for lung cancer from which the claimant had made a full recovery and one for asbestosis. Two of the judges in separate cases effectively stated that the late issue of proceedings by individuals suffering from a significant asbestos condition could be excused due to the effect of the symptoms. There is a significant risk that the other judges will reach the same conclusion in future cases. It seems highly likely that similar arguments will be put forward by other asbestos sufferers or their estates where proceedings have been issued out of time.

It would seem that in a mesothelioma case a limitation defence will not succeed unless the defendant can demonstrate very strong evidential prejudice. In relation to less serious conditions such as fully cured lung cancer, asbestosis or pleural thickening a defendant has a reasonable prospect of success with the right defence. The defendant would need to show that there was a significant period of delay which caused evidential problems and an arguable liability or causation defence.

Finally, if a claimant does not reserve his right to argue section 33 then a defendant should proceed with a limitation defence irrespective of the position on liability, causation and evidential prejudice. In such a case it would be important to be confident that a court would conclude that the claimant’s actual or constructive knowledge would have been before the three year limitation period expired.

Therefore, whilst a limitation defence should always be raised in correspondence and/or a defence, careful consideration should always be given as to whether it should be used as a negotiating tactic or pursued to trial as a preliminary issue.