The recent case of Patricia Melanie Nicholas (Executrix of the estate of Doris Timbrell deceased) v Ministry of Defencesaw the claimant, the executrix of her mother’s estate, successfully asking the court to disapply the usual three year limitation period for bringing a claim. The claimant’s mother, Doris Timbrell, had died after suffering asbestosis following exposure to asbestos after working for a company assembling gas masks and fitting filters into the masks during the war.
In August 2004, Mrs Timbrell had been informed of a potential claim against the Ministry of Defence but she was too unwell to do anything about it. She died in 2008 from cancer which was unconnected to the exposure to asbestos. Up until her death the claimant cared for her. However, despite knowing about her mother’s potential claim the claimant did nothing about it until 2009 when she sought legal advice. The date of knowledge was 2004; therefore the statutory limitation had expired in 2007. The claim was first notified to the defendant in June 2009. Notwithstanding the expiry of the limitation date, liability was admitted subject to limitation and an extension agreed for issue of proceedings. Proceedings were eventually issued in May 2012 and the claimant sought relief from the court under section 33 of the Limitation Act 1980 (“The Act”).
Section 33 of The Act affords the court discretion to allow a claim to proceed outside of the normal time limits where it would be equitable and where it would not prejudice the defendant, taking into account all of the circumstances of the case.
It was the claimant’s evidence that her mother had wanted to bring a claim but was too ill to do so and she, the claimant, was too involved in caring for her to bring the claim sooner. The court sympathised with the claimant because it found her mother was made unwell due the effects of her injury caused by the defendant. The action was allowed to proceed out of time on the basis that it was equitable and fair to do so. Also the defendant had notice of the claim as far back as 2009 and had admitted liability. There was sufficient expert evidence to ensure a fair trial on quantum.The court further held that the defendant had not been prejudiced. This was a factor which was given considerable weight in the decision making process. The claim was allowed to proceed because the delay did not in any way impact on the defendant’s ability to resist the claim.
This case is of course fact-specific and courts are not readily willing to exercise their discretion under section 33 of The Act. Generally there must be very good reason for the court to override the time limits that apply when bringing claims. In Hartley v Birmingham City District Council it was held thatone of the most important factors is whether the delay has in any way disadvantaged the defendant’s ability to defend the proceedings. This is a high burden for claimants and courts have often decided against them on this issue.
Fortunately in this case, the court gave due consideration to EB v Haughton where it was held that while prejudice is a factor to be given considerable weight, it does not override every other factor to which the court must have regard when exercising its discretion. This case was of course one that was issued prior to the Jackson Reforms and it remains to be seen what approach the courts will take in this era of great uncertainty. The reality is however, in these times of costs cutting, costs budgeting and reducing the number of claims, that courts will be much stricter with non-compliance and failure to meet time limits. More consideration will be given to dealing with cases at proportionate cost, though not necessarily fairly. Notwithstanding these issues, if liability is admitted then it may be worth proceeding with a claim even after the limitation period has expired, provided the claimant can show good reason for delay. However, there is no guarantee that the time limit will be disapplied in these circumstances. Only time will tell of the real impact of the Jackson Reforms on vulnerable people who find themselves in these unfortunate situations through no fault of their own.