This decision provides welcome clarity to the approach courts should adopt in exercising their discretion under s.33 Limitation Act 1980.
The burden of proof is on the claimant. However, the court’s discretion should be broad and unfettered. It was wrong therefore in this case to refer to the Claimant’s burden as being either light or heavy, since it varied depending on the circumstances of each case.
The Claimant started working for Lord and Lady Chelwood as a forester and gardener in 1981. His work would on occasions involve the use of noisy equipment. His employment came to an end in 2000. In 2002 the Claimant attended an occupational health check. The nurse advised him that he might be suffering from noise-induced industrial hearing loss.
In 2005 he consulted his GP. He was referred to a hospital ENT department. He was reviewed again at hospital in 2006. In October 2006, after seeing a TV advert encouraging personal injury claims, the Claimant instructed Wixted and Co. Proceedings were commenced in September 2009.
Limitation was considered as a preliminary issue. At first instance, Deputy District Judge Smith held that the Claimant’s date of knowledge was December 2006 and so the claim had been brought in time. On appeal, His Honour Judge Hollis held that the date of knowledge was 2002. He declined to exercise his discretion under s.33 Limitation Act 1980 to extend the limitation period.
The Claimant appealed. He accepted that the date of knowledge was 2002, but contended that the Judge had erred in the exercise of his discretion.
The Court of Appeal agreed that the claim should be dismissed on limitation grounds. Lord Justice Jackson held as follows:
- There are conflicting authorities on what test should be applied under s.33, in particular on the issue of whether the burden on the claimant to persuade the court in his favour is a heavy or a light one.
- All one can properly say about the general approach to s.33 is that the burden is on the claimant. It is for the claimant to establish, by reference to the criteria set out in s.33, that it would be equitable to allow the action to proceed, despite the expiry of the prescribed limitation period.
- In this case the Judge held that the Claimant had "a particularly heavy burden to satisfy the court under section 33". He was applying the wrong test. He should simply have said that the burden was on the Claimant.
- The task of the court under s.33 is to weigh up the potential prejudice to each party. On the facts of this case, the prejudice to the Defendants outweighed the prejudice to the Claimant. One important factor was that insurance documents had been lost because of the delay, leaving Lady Chelwood exposed to a proportion of the claim and costs.