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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Young v Western Power Distribution (South West) Plc [2003] EWCA Civ 1034 (18 July 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/1034.html Cite as: [2003] EWCA Civ 1034, [2003] 1 WLR 2868 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge Mackay)
Strand, London, WC2A 2LL |
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B e f o r e :
(Vice-President of the Court of Appeal Civil Division)
LORD JUSTICE MUMMERY
and
LORD JUSTICE LAWS
____________________
BARRY YOUNG (DECEASED) |
Respondent |
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- and - |
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WESTERN POWER DISTRIBUTION (SOUTH WEST) PLC |
Appellant |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Messrs Osborne Clarke) for the Appellant
John Foy Esq QC (instructed by Messrs Russell Jones Walker) for the Respondent
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Simon Brown:
"In the light of the further pathological studies and in particular Professor Corrin's opinion I accept that there must be considerable doubt as to whether the diagnosis of mesothelioma was correct. However, it is notoriously difficult to distinguish between mesothelioma and adenocarcinoma on the basis of pleural biopsy specimens and it is often not until post mortem examination, when large amounts of tissue are available for inspection, that a definitive diagnosis is made.
If the tumour is mesothelioma, I remain of the view that, on the balance of probabilities, it was caused by asbestos exposure. I certainly do not accept Professor Newman-Taylor's suggestion that a minimum of three months of heavy asbestos exposure is necessary to cause mesothelioma. Most experts agree that there is no convincing evidence for a threshold dose of asbestos below which there is no risk of mesothelioma.
If the tumour is adenocarcinoma it will not be possible to show that it was caused by asbestos exposure. As Professor Newman-Taylor points out, the site of origin is unknown. Even if it were established that it originated in the lung the history of asbestos exposure is not sufficiently substantial to form a basis upon which to conclude that asbestos exposure materially increased his risk of development of lung cancer.
In summary, Professor Corrin's finding shed considerable doubt on the diagnosis of mesothelioma but I would not consider it safe to reach a final conclusion that he does not have mesothelioma until the results of post mortem examination are available."
" on the death of any person after the commencement of this Act all causes of action vested in him shall survive for the benefit of his estate."
"(4) Except where subsection (5) below applies, the period applicable is three years from-
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
(5) If the person injured dies before the expiration of the period mentioned in subsection (4) above, the period applicable as respects the cause of action surviving for the benefit of his estate by virtue of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 shall be three years from-
(a) the date of death; or
(b) the date of the personal representative's knowledge;
whichever is the later."
"If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured."
"12(1) An action under the Fatal Accidents Act 1976 shall not be brought if the death occurred when the person injured could no longer maintain an action and recover damages in respect of the injury (whether because of a time limit in this Act or in any other Act, or for any other reason).
Where any such action by the injured person would have been barred by the time limit in section 11 of this Act, no account shall be taken of the possibility of that time limit being over-ridden under section 33 of this Act.
12(2) None of the time limits given in the preceding provisions of this Act shall apply to an action under the Fatal Accidents Act 1976, but no such action shall be brought after the expiration of the three years from-
(a) the date of death; or
(b) the date of knowledge of the person for whose benefit the action is brought;
whichever is the later.
12(3) An action under the Fatal Accidents Act 1976 shall be one to which sections 33 of the Act apply "
"33(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which-
(a) the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(2) The court shall not under this section disapply section 12(1) except where the reason why the person injured could no longer maintain an action was because of the time limit in section 11
If, for example, the person injured could at his death no longer maintain an action under the Fatal Accidents Act 1976 because of the time limit in Article 29 in Schedule 1 to the Carriage by Air Act 1961, the court has no power to direct that section 12(1) shall not apply.
(6) A direction by the court disapplying the provision of section 12(1) shall operate to disapply the provisions to the same effect in section 1(1) of the Fatal Accidents Act 1976."
"The Walkley principle - as subsequently explained by the House of Lords in Deerness -v- John R. Keeble & Son (Brantham) Ltd. [1983] 2 Lloyd's Rep. 260 and as recognised by this court in Forward -v- Hendricks [1997] 2 All ER 395 - is to be found in the following passage from Lord Wilberforce's speech in the Walkley case [1979] 1 WLR 606, 609:
'The provisions of section 2A' - now section 11 - 'are those which require an action for personal injuries to be brought within three years. So subsection (1)(a)' - now section 33 - 'must be contemplating a case in which, because the three years have expired without an action being brought, section 2A applies to the prejudice of the plaintiff. But if the plaintiff has brought his action within the three years, how has he been prejudiced by section 2A? This I fail to understand. If this argument is sound, the respondent's case fails in limine. He brought his first action within the normal limitation period, and if he has suffered any prejudice, it is by his own inaction and not by the operation of the Act.'
Lord Wilberforce was there saying that as a matter of construction the particular prejudice to which the section 33 discretion is directed is that occasioned by the plaintiff not having issued his proceedings within the primary three-year limitation period. Once he has issued his proceedings within that period, then, for whatever reason they have ceased to exist - whether through failure to serve, strike out for want of prosecution, or discontinuance - section 33 simply has no application.
Although Lord Wilberforce observes that any prejudice resulting from the ultimate ineffectiveness of the first proceedings is due rather to the plaintiff's inaction than to the Act (i.e. the proceedings not having been issued in time), this observation seems to me strictly outside the ratio. It is, after all, plain that the section 33 discretion arises notwithstanding a plaintiff's solicitors' perhaps far greater negligence in failing ever to have issued proceedings within the primary limitation period in the first place. Indeed, as Lord Diplock expressly recognised in Thompson -v- Brown [1981] 1 WLR. 744, 752 that is an undoubted anomaly arising from the Walkley principle."
"I am not sure whether it was argued in the Walkley case or in any of the later cases that on the true construction of section 33(1) the action there referred to must be the second action and not the first, as in my opinion must be the case. However that may be, as Simon Brown LJ. has pointed out, the House of Lords has decided that the passage which he has quoted from the speech of Lord Wilberforce is to be taken as stating the relevant principle."
"This establishes that where a first writ issued within the primary limitation period is itself ineffective (although not a nullity) through having been issued variously without consent against a company in liquidation (as in the McEvoy case [1998] P.I.Q.R. P266 itself), or through being issued against an unincorporated association in its own name (White -v- Glass, The Times, 18 February 1989; Court of Appeal (Civil Division) Transcript No. 140 of 1989), or through being issued against a company which had been struck off the register (In re Workvale Ltd. [1992] 1 WLR. 416), the Walkley principle does not apply to defeat in limine a second action, notwithstanding that in each of those cases the defect was recognised to be curable: in the McEvoy case [1998] P.I.Q.R. P266 by the late grant of leave; in White -v- Glass, The Times, 18 February 1989 by substituting the names of representative members; and In re Workvale Ltd. [1992] 1 WLR. 416 by having the company restored to the register."
"My Lords, in my opinion, once a plaintiff has started an action (the first action) within the primary limitation period it is only in the most exceptional circumstances that he would be able to bring himself within section 2D in respect of a second action brought to enforce the same cause of action. If the first action is still in existence, as it was in the instant case when the matter was before the master and the judge, cadit quaestio; he has not been prevented from starting his action by section 2A or section 2B at all, so the provisions of those sections cannot have caused him any prejudice. Does it make any difference that the first action is no longer in existence at the time of the application under section 2D either because it has been struck out for want of prosecution or because it has been discontinued by the plaintiff of his own volition? In my view, it does not. These are self-inflicted wounds. The provisions of section 2A caused him no prejudice at all; he was able to start his action. The only cause of the prejudice to him in the case of dismissal for want of prosecution is dilatoriness which took place after the action was started whether on his own part or on the part of his legal advisers. In the case of discontinuance the only cause of the prejudice is his own act.
The only exception I have been able to think of where it might be proper to give a direction under section 2D, despite the fact that the plaintiff had previously started an action within the primary limitation period but had subsequently discontinued it, would be a case in which the plaintiff had been induced to discontinue by a misrepresentation or other improper conduct by the defendant; but there is no suggestion of this in the instant case."
"Faced with the unanimous decision of this House in Walkley -v- Precision Forgings Ltd [1979] 1 WLR 606 that a plaintiff who has actually started an action before the expiry of the primary limitation period has not been prejudiced by what are now the provisions of s11 of the Limitation Act 1980, and therefore cannot bring himself within the provisions s33(1), the learned judge seized on a passage in my own speech in that case in which, with customary caution, I had left open the possibility that there might be some 'most exceptional circumstances' in which the plaintiff might be allowed to proceed after the expiry of the primary limitation period despite the fact that he had brought an action for the same cause of action before the three-years primary limitation period had expired. I added that the only exception I had been able to think of -
' would be in a case in which the plaintiff had been induced to discontinue by a misrepresentation or other improper conduct by the defendant.'
Walkley's case was one of discontinuance of proceedings, and the example that I gave is perhaps more accurately characterised as an estoppel from relying on s11 of the Act rather than a disapplication of that section upon a direction of the Court made in the exercise of the discretion conferred upon it by s33, in the making of which direction the Court must have regard to the matters specified in s33(3). Whether a defendant is estopped or not is a question of law. It is not a matter of discretion for the Judge. Sir John Donaldson, MR pointed this out in his judgment in the instant case. The rationale of the rule laid down by this House in Walkley's case did not logically admit of any exceptions."
i) Does the Walkley principle strictly apply to derivative claims of this nature?
ii) If so, should it nevertheless be disapplied having regard to the "exceptional circumstances" of this case?
iii) Would the application of the Walkley principle here violate the respondent's right of access to the court under Article 6 of ECHR?
iv) Assuming for whatever reason that the Walkley principle does not apply to this case, was the trial judge entitled to exercise his discretion in the respondent's favour as he did?
Issue i) - does the Walkley principle apply in this case?
The 1976 Act claim
"1. s12(1) If the deceased could not bring an action for any reason, the claimant cannot do so. In deciding whether the deceased could bring an action, ignore possibility of s33.
2. s33(2) If the reason for the deceased not being able to bring an action was s11, the claimant can rely on s33.
3. Walkley is saying deceased could not rely on s33 anyway, but by s12(1) possible reliance on it is irrelevant.
4. The day before he died, it was s11 which prevented the deceased bringing an action. If he had done so, the answer would have been s11 - so it is s11 which is the reason he could not maintain an action.
5. Walkley says that if the deceased sought to rely on s33 he could not do so because he was not prejudiced by s11, and so could not rely on s33, but the deceased had not reached that stage - he had not applied under s33 and the possibility that he might has to be ignored [s12(2) 2nd para].
6. Therefore, Mrs Young is prejudiced by s12. This is not a Walkley case and the court has a s33 discretion in her Fatal Accidents Act claim."
The 1934 Act claim
Issue ii) - can the respondent escape the Walkley principle by reference to "exceptional circumstances"?
Issue iii) - does the application of the Walkley principle here breach Article 6 of ECHR?
"In the determination of his civil rights everyone is entitled to a fair hearing "
As the ECtHR held in Ashingdane -v- United Kingdom (1985) 7 EHRR 528, that entitlement embodies a right of access to the court. It is Mr Foy's submission that to deny the respondent here the possibility of a favourable exercise of discretion under s33 is to adopt a needlessly and unfairly inflexible approach to the three year limitation period ordinarily applying to personal injury claims. It is, he argues, a disproportionate response to the aim, however legitimate this may be, of providing some degree of certainty and finality in litigation. Equity can be achieved here, he submits, by the proper exercise of the s33 discretion. It is artificial and anomalous to operate a blanket ban on the exercise of such a discretion simply because, in a particular case, there has been a prior timeous claim brought which, for whatever reason, has not been pursued.
"48. this right [the right to institute proceedings] is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim to be achieved.
49. It is noteworthy that limitation periods in personal injury cases are a common feature of the domestic legal systems of the Contracting States. They serve several important purposes, namely to ensure legal certainty and finality, to protect potential defendants from stale claims which might be difficult to counter, and to prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have been unreliable and incomplete because of the passage of time."
"53. The contracting states properly enjoy a margin of appreciation in deciding how the right of access to courts should be circumscribed. It is clear that the United Kingdom legislature has devoted a substantial amount of time and study to the consideration of these questions. Since 1936, there have been four statutes to amend and reform the law of limitation and six official bodies have reviewed aspects of it. The decision of the House of Lords, of which the applicants complain, that a fixed six-year period should apply in cases of intentionally caused personal injury was not taken arbitrarily, but rather followed from the interpretation of the Limitation Act 1980 in the light of the report of Tucker Committee upon which the Act had been based."
Issue iv) - assuming a discretion arose, was the judge entitled to exercise it as he did?
Final Result
Lord Justice Mummery:
Lord Justice Laws:
Order; The appellant's appeal is allowed; The respondent is to pay the appellant's costs of the action, including the costs of the trial and appeal on the preliminary issue of limitation, on standard basis to be subject to a detailed assessment if not agreed.
(Order does not form part of the approved judgment)