Under the UK Limitation Act 1980 ("the Act"), personal injury claims for damages based on negligence are subject to a limitation of three years from the date on which the cause of action accrued (ie the injury itself), or if later, the date of knowledge of the injured person. The Court has discretion under s33 of the Act to extend this period, and s33(3) sets out a number of non-exhaustive factors which the Court should consider in exercising such discretion. Due to the long latency period associated with many asbestos related diseases, which can often manifest themselves many decades after exposure, the date of knowledge is an important issue in many asbestos-related personal injury claims.

In two recent cases, the English High Court has had to consider whether to exercise its discretion under s33 to disapply the limitation period where claims had been brought out of time. In Collins, the Court decided against extending the limitation period, and in Nicholas they decided to extend it.

In the case of Collins, a former dockworker who had been exposed to asbestos at some time before 1967 was diagnosed with terminal lung cancer in 2002. The claim was not issued until 2012. It was accepted by the Court that the reasonable man, upon being told that he had only a few months to live, would have focussed on other things than the precise cause of his condition. However, given that in this case he had responded so positively to the treatment he received, the Court then found that it would be reasonable to expect that he would turn his mind to the cause of his condition. Therefore, allowing for "thinking time", it held that the date of knowledge would be around mid-2003, and the primary limitation period would have ended in mid-2006. On the facts, the claimant did not have "actual" knowledge of the cause of action until 2009, when he saw an advertisement from a firm of solicitors which prompted him to make the link between his cancer and the previous work with asbestos (although the medical notes at the time of his diagnosis also made the connection). At that point, he instructed solicitors without delay, who obtained the necessary reports relatively quickly, but there was no explanation for delaying pursuing the claim until 2012. The Court held that this additional delay caused further prejudice to the defendants such that the claim should be dismissed. In doing so, the Court also took account of other factors, including the evidential weaknesses of the case and the low prospects of success.

In Nicholas, a claim was brought by the daughter and executrix of an asbestosis victim, who had been diagnosed and advised of her claim in August 2004. The limitation period therefore expired in August 2007, and the claim was issued in May 2012. In this case, the defendant was unable to point to any prejudice as a result of the delay, and, subject to the limitation defence, liability and causation were admitted. The Court examined the circumstances of the delay, and previous authorities on the discretion to disapply limitation periods under s33 of the Act, and found that the effect of the delay on the defendant's ability to resist the claim was of "paramount importance" in deciding whether to disapply the limitation period. Despite the lack of prejudice, the defendant argued that it was not fair or equitable for the claim to proceed. In this case, the Court found that the decision not to issue proceedings within the limitation period was directly related to the debilitating effects of the asbestos exposure on the deceased, for which the defendant was responsible (the Court also noted that although proceedings were not issued until 2012, the defendant was put on notice of the claim in 2009). Therefore the defendant should not be able to take advantage of its own tortious acts, and the claim was allowed to proceed to a quantum assessment.

These two decisions, with their different outcomes on this issue of extending limitation periods, demonstrate the different ways in which the Court can exercise its discretion. The key distinguishing factors between these cases appear to be the extent of any prejudice caused to the defendants by the claimants' delay in bringing the action, and the merits of the claims themselves. Where the claim was a strong one (and indeed the defendant admitted liability and causation subject to the limitation point), the claim was allowed to proceed. The Nicholas decision also makes clear the value of notifying defendants as soon as possible of a claim, even if there is then a delay before issuing. This will reduce the possibility of a finding of prejudice or unfairness for the defendant in the event that an application to extend the limitation period is required.