In Jones v Hywel Dda Local Health Board, the claimant sought to rely on s33 in order to continue her negligence claim arising out of complications following surgery in November 2003, resulting in allegedly serious injuries to her leg. She had instructed lawyers in February 2005 but then failed to (1) provide a compliant pre-action protocol letter of claim, (2) serve proceedings before expiry of the limitation period at the end of 2006, (3) or serve within an extended period granted by the court in March 2007. The claimant later issued fresh proceedings in 2010 and sought to rely on s33. Primarily, it was contended that it was still possible for a fair trial to take place.

The decision

Although the claimant’s s33 application was unsuccessful, the judgment provides a well-reasoned and clear analysis on applying s33.

Even in circumstances where a fair trial might still be possible, the court must examine all of the circumstances, and in particular the conduct of all parties involved, included the lawyers instructed. Criticism was made of the failure in the underlying action to follow the pre-action protocol, to properly particularise the causes of action and losses against the Trust, and to serve proceedings within time.

Further, the court considered that it would not be equitable (having regard to the balance of prejudice) to allow the action to proceed because of the length of the delay after the expiry of the limitation period and the claimant’s lack of any real reason for the delay. In addition, the court seemed to take some comfort from the existence of a loss of chance claim against the lawyers acting for the claimant.

Comment

The application of s33 is very much fact dependent and the following comment from the court best sums up the position:

“Having regard to all the circumstances, particularly the length of the delay after the expiry of the limitation period and the lack of excuse for it, it does not appear to me that it would be equitable to allow this action to proceed having regard to the balance of prejudice.”

The potential benefits of maintaining the original cause of action also need to be taken into account when deciding whether or not to proceed. However, here the decision demonstrates a clear shift in emphasis from the ability to conduct a fair trial, to a requirement to consider all relevant issues. One of those issues will always be ‘delay’ and more timely action may well have influenced the end outcome. In addition, the stage that the underlying action had reached was also an influential factor and had that been more advanced then the court may well have been more prepared to side with the claimant.

Insurers to law firms will often be faced with this dilemma when a law firm has missed primary limitation, but we consider that the ability to rely on s33 to save an action remains very much alive and kicking. If successful, then both the law firm facing the negligence claim, and the claimant, benefit.