BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Griffin & Ors v Clwyd Health Authority & Ors [2001] EWCA Civ 818 (14 May 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/818.html
Cite as: [2001] EWCA Civ 818, [2001] PIQR P31, [2001] P1QR P31

[New search] [Context] [View without highlighting] [Printable RTF version] [Help]


Neutral Citation Number: [2001] EWCA Civ 818
A2/2000/3514/3514A

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
(Mr R D Machell QC: sitting as a Deputy High Court Judge)

Royal Courts of Justice
Strand
London WC2
Monday, 14th May 2001

B e f o r e :

LORD JUSTICE PETER GIBSON
LORD JUSTICE BUXTON
LORD JUSTICE JONATHAN PARKER

____________________

(1) ANNETTE GRIFFIN
(2) BARBARA LAWSON
(3) JENNIFER WILLIAMS
Claimants/Applicants
- v -
(1) CLWYD HEALTH AUTHORITY
(2) PETER COX ENVIRONMENTAL SERVICES LIMITED
(3) VERMINEX LIMITED
(4) TEIFI LIMITED
(5) ACTION PEST CONTROL LIMITED
Defendants/Respondents

____________________

(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)

____________________

MR JOHN BENSON QC and MR GWYNN PRICE ROWLAND (Instructed by Alan Roberts & Co,
9 Henley Avenue, Wepre Park, Connah Quay, Chester CH5 4HT)
appeared on behalf of the Appellant.
MR CRAIG SEPHTON QC (Instructed by Morgan Cole Solicitors, Bradley Court,
Park Place, Cardiff CF10 3DP)
appeared on behalf of the 4th Respondent.
MR CHARLES FEENY (Instructed by Berrymans Lace Mawer, Castle Chambers, 43 Castle Street, Liverpool, L2 9SU)
appeared on behalf of the 2nd, 3rd and 5th Respondents.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Monday, 14th May 2001

  1. LORD JUSTICE PETER GIBSON: I will ask Buxton LJ to give the first judgment.
  2. LORD JUSTICE BUXTON: In the proceedings out of which this appeal comes there are three claimants, Mrs Griffin, Mrs Lawson and a Mr Williams. There are now five, I think originally six, defendants. The first defendant is the health authority, who is in fact a successor of the health authority that was responsible for and managed the Broughton Hospital where all the claimants at one time worked. The second to fifth defendants are companies or organisations that were brought into the hospital by the hospital management in order to perform pest control operations. According to her particulars of claim, Mrs Griffin commenced work at the hospital in 1976 as a part-time nursing care assistant, and she remained employed there until 1990, when she ceased to work because of ill health. Mrs Lawson started in 1974 at the same hospital as a part-time nursing care assistant and ceased working, due to ill health, in 1992. It is the case of both the first and second claimants, as it is the case of the third claimant who was equally employed at the hospital, that they had suffered what is described as multi-chemical sensitivity because of exposure to pesticide, the symptoms being a variety of disabilities and ill health of a really quite multifarious nature. The nub of their claim is that they were exposed to pesticides wrongly by reason of the failure of the first defendants to take precautions to protect them, and by reason of the second and fifth defendants using inappropriate materials and otherwise conducting their operations in a way that was detrimental to a person's health.
  3. Although, as we have seen, the ill health of both of the claimants manifested itself at least in the early 1990s, and in reality before that, and although they ceased working in the case of Mrs Griffin in 1990 and Mrs Lawson in 1992, the writ in these proceedings was not issued until 14th January 1997. Understandably in those circumstances, those drawing up the proceedings anticipated difficulties in terms of limitation, and that was in fact addressed, in anticipation, by the pleader in paragraphs 12 and 13 of the statement of claim. The allegation there was that it was only in August 1994 when the plaintiffs received treatment at the Breakspear Hospital that they knew or believed that they had an injury which was attributable to exposure to insecticides and pesticides at work. The date of knowledge was therefore asserted to be August 1994. The writ had been issued within three years of that date. It was, however, further pleaded that if the action was otherwise time-barred, the court should exercise its discretion under section 33 of the Limitation Act 1980 ("the 1980 Act") so as to disapply the time limit imposed in section 11 of that Act.
  4. The defendants, and certainly the first defendants, put those contentions in issue by their defence. In paragraph 13 of the defence of the first defendant particulars were given of why, in the first defendants' contention, the claimant's cause of action did not accrue within three years of the issue of the writ. They said as follows:
  5. "(i)The First Plaintiff informed the Department of Social Security in or about January 1992 that the Hospital was fumigated regularly and that she contracted a disease from exposure to the chemicals used during fumigation. She also stated then that her disablement began on 6th July 1990.
    (ii)The First Defendant's then solicitors, Messrs Leigh Day & Co., sent a letter before action to be sent to the Hospital on 10th November 1993.
    (iii) The Second Plaintiff complained to her General Practitioner in or about October 1991 but her medical condition (which is not admitted) was caused by the spraying of pesticides at the Hospital.
    (iv) The Second Defendant's then solicitors, Messrs Brian Thompson and Partners, sent a letter before action received by the First Defendant on 12th November 1993."
  6. Both the first and the second claimants addressed these matters in affidavits that they swore in July 2000. I go first to the affidavit of Mrs Griffin. She made a number of observations about the conduct of her previous legal advisers, but she then refers to consultations, on the part both of herself and of Mrs Lawson, with a Dr Statham and of advice that he gave as to information that should be sought from the first defendants. That merits being set out in full:
  7. "20.I can't remember the exact date or even year, but I seem to recall it would be 1991 or 1992, Doctor Statham was seeing both myself and Barbara Lawson the Second Named Claimant and he did inform both of us that he suspected chemicals as being the cause of our ill health.
    21.Doctor Statham was the first medical person to suspect there was any connection between the chemicals and our work place and this in turn led me to start requesting the list of chemicals that I was exposed to at my place of work. This was on the advice of Doctor Statham.
    22.I asked my employers, the First Defendants, for a list of chemicals used and stored at my work place.
    23.I have made numerous requests to my then employers, the First Defendants to let me have a list of chemicals, but despite many many requests, I have only ever been provided with a limited list of chemicals, when I kept repeating that what I required was the list over the whole 16 years I had worked there and to this date, I have never been supplied with that list."
  8. There were difficulties about the tests, and in April 1993 Mrs Griffin had advice from the specialist unit at Guy's Hospital, apparently a unit very expert in these matters, that there was in fact no evidence that there had been pesticide poisoning in her case. She comments at paragraph 36 of her affidavit in the following terms:
  9. "I did continue to suspect my illness was caused by chemicals, but experts continued to rule this out."
  10. Then in April 1994 Mrs Griffin was seen by a Dr Monro, apparently at the instance of and under arrangements made by the first defendant. Dr Monro saw both Mrs Griffin and Mrs Lawson and told them that various tests that she had performed had proved positive and that they were indeed suffering from pesticide poisoning. She produced a report on 6th September 1994. Mrs Griffin comments:
  11. "This was the first time I was given a positive connection between my illness and chemical poisoning. Until that time, I only suspected there was a connection which all the experts denied."
  12. On the basis of that contention Mrs Griffin in her final paragraph says this:
  13. "I accordingly request This Honourable Court to find that my date of knowledge was August 1994 or later and that my cause of action arose within three years of commencement of these proceedings."
  14. Prior to that she had said that there was one further thing that she wished to add. That was in relation to a report from the Benefits Agency in 1993, which stated that the adjudication officer had accepted that she was suffering from a prescribed disease. She gives certain information that suggests that a full diagnosis was not made in that connection before Mrs Griffin was seen by Dr Monro.
  15. Much of the case relevant to Mrs Lawson has, as we have seen, already been addressed in Mrs Griffin's affidavit. But Mrs Lawson swore an affidavit of her own and explained the very difficult and distressing circumstances of her illness and also the views of the medical persons whom she saw. She said this in paragraph 26 of her affidavit:
  16. "During my illness, I have seen Consultants and Doctors regarding my illness, but as most of their tests and examinations came back negative and as I am not an expert, or a qualified person, I had to accept their opinions, although I was aware that something was wrong with me. In fact, to some of the Doctors and Consultants, I didn't even mention the possible connection of pesticides, as I got the distinct impression that they didn't believe me."
  17. She also refers to the case conference held with the Guy's poisoning unit, with the same result as that in the case of Mrs Griffin. With regard to her connections with Dr Monro, her experience was the same as that of Mrs Griffin. Equally, and on the same basis, she claims that the date of knowledge did not accrue until August 1994.
  18. It is notable that in neither of these affidavits is anything said at all about the matters set out in the defence of the first defendant to which I have already referred, even though these affidavits were, presumably, drawn up with the benefit of legal advice as to what they should contain and even though those matters were in issue by reason of the defence. The learned judge described that omission as strange. I find it more than strange: I find it striking in the extreme. I shall return to that point in due time.
  19. Affidavits were sworn also by the various defendants relating to the matters set out in the defence, and also pointing to a number of further matters that were said to cast doubt on the claims as to knowledge, including in particular a sit in or series of sit ins that the two claimants and others had taken part in at the hospital apparently to protest about working conditions and the matters in issue in this case; some entries in the accident record book which seem to suggest a complaint as to the liability of the defendants; and a number of exhibits setting out statements made by the claimants in various medical examinations. The significance of those matters again is something to which I will have to return.
  20. All this evidence was served under an order made by Deputy District Judge Bootland on 9th June 2000. That was an order for a preliminary hearing on the issue of limitation in respect of all the claimants, that is to say including the third claimant, to be heard altogether and before the same judge at the High Court. Affidavits were ordered by both parties. After serving of affidavits on both sides, the judge ordered as follows:
  21. "(c) Thereafter, there be no further service of affidavits by either party prior to the limitation hearing."
  22. He gave directions for listing and setting down and then provided as follows:
  23. "... the hearing to be conducted by counsel based on the affidavit evidence, and no permission to call oral evidence on the limitation issue."
  24. That order excluded both further oral evidence and, as it was understood by the parties, cross-examination also. The order was, to put it at its lowest, unusual in the terms that I have just indicated. But it is important to record, and it is an important feature of this case, that it was an order made by consent. Which side actually initiated it perhaps does not matter. The important point about it is that it was a consent order, and therefore, understandably, it was neither appealed by the claimants nor sought to be varied by them.
  25. Pursuant to the Deputy District Judge's order the limitation hearing came on for trial before Mr R D Machell QC, sitting as a Deputy Judge of the High Court, on 27th October 2000. Mr Machell was faced with the order of Deputy District Judge Bootland. He expressed concern about the nature of the order, saying, not only in his judgment but also in interlocutory exchanges with counsel of which we also have a transcript, first of all that it was unfortunate that there was no provision for affidavits in response; and, second, that it was unusual and potentially inconvenient that the matter should be tried on affidavit evidence alone without the opportunity for cross-examination. He adjourned the matter briefly so that the position could be reviewed. Apparently at the initiative of the defendants, he decided that it was in any event necessary for the third claimant, Mrs Williams, to be cross-examined. He adjourned the case in her regard so that arrangements could be made for that. That cross-examination was intended to put to Mrs Williams various points allegedly, or potentially allegedly, arising out of her medical records which apparently the defendants thought might be inconsistent with what she had claimed about the origins of her illness. We are not concerned with that. We do not know in any way what the merits of that concern in fact were. I mention the points only to underline that the judge considered that Mrs Williams and the potential fairness of trial of her case fell into a different category from that of the first and second claimants.
  26. Further, the judge expressed particular concern, bearing in mind the decisions that he had to make under section 33 of the 1980 Act, about the complete failure of the evidence so far filed by the claimants to explain why there had been delay between the date of alleged knowledge, even if that were accepted, that is to say August 1994, and the actual issuing of the writ some two years and four months later. He no doubt had well in mind that he would, or might, eventually have to consider how the case had been conducted for the purposes of section 33(3)(e) of the 1980 Act, a matter upon which the burden of proof, or the burden of persuasion, rested with the claimants. In my respectful judgement, he very fairly drew attention to the fact that there was no evidence about that at all. He decided that he would permit further evidence on that point, even though that was contrary to the Deputy District Judge's order. That evidence was to be produced by way of affidavit to be sworn, within a short period, by the two claimants. The judge did not make any order in respect of the filing of affidavits in reply, that is to say to give an opportunity to the claimants to address those matters relied on by the defendants that had not been foreshadowed in the defence: the matters that I have already listed.
  27. Complaint is made in this appeal that the judge did not make such provision. But there are two answers to that complaint. The first is that the judge was doing no more than implement the terms, and specific terms, of an order that had already been made by consent. It would need significant reasons, which he did find in the two instances that I have already mentioned, before he departed from that order. Second, it seems quite clear to me, having carefully read the transcript of the hearing before the Deputy Judge and also having had the benefit of being addressed on it by Mr Benson QC who appears for the claimants in his appeal, that the judge was never asked to make such provision.
  28. In the grounds of appeal, amongst other complaints, is the following in ground 6: that the judge had allowed an application by the second and third defendants that the third claimant should give oral evidence, but that he refused an application on behalf of the first and second claimants that they should be dealt with similarly and also give oral evidence. That allegation was mistaken in a number of respects; and, as I understood it in the course of argument, Mr Benson indicated that he did not feel able any further to rely on it. It was mistaken, first, because, to put it at its lowest, to describe the judge's order in respect of the third claimant that she should be permitted to give oral evidence is a misstatement of what was going to happen. What was going to happen was that the third claimant was to be cross-examined. It was not an order that she should be permitted to supplement her evidence by way of evidence in chief. Second, there was no application in writing before the judge in these terms; and, third, if one scrutinises the passage in the exchanges with counsel (initiated I might point out by the judge himself and not as a result of any application) where this matter was dealt with -- what was described by Mr Benson as the high point of the submissions -- it seems to me absolutely clear that what was being addressed is what the judge had already drawn attention to, that is to say the defect in the claimants' evidence as to the position between 1994 and 1997. It was in respect of that that discussion took place with the judge and, as a result of that, he gave leave for further evidence in chief. What he was never asked to do was to allow fresh evidence generally to be adduced. The judge therefore ruled that, although the third claimant's case needed to go off for what the judge quite clearly described as "oral evidence by way of cross-examination", not oral evidence at large, there was no such reason for delaying the case of the first and second claimants.
  29. The judge properly pointed out that everybody was before him, with five counsel in attendance, in pursuit of what apparently had been an order from the District Judge that (though I do not think anybody told the judge this in terms) had at the very least not been contested, and that it would be an undue waste of the court's time to postpone the matter simply to allow the first and second claimants to rectify the difficulty that the judge himself had identified with regard to the section 33 application. He therefore, however, gave leave for affidavits to be produced by the first and second claimants on that point, which in due course they were, though they were not in fact in the judge's hands until the end of argument but were admitted by agreement on the part of the defendants.
  30. These affidavits were in the same form in respect of both claimants. Because they have loomed somewhat large in the appeal, I intend to set out the text of one of them:
  31. "(2)Alexander Harris informed us that there was important documentation missing from their file which they needed to issue the writ.
    (3)Alexander Harris informed us that vital information, including the chemical tests and medical information was missing from the file and they had been unable to obtain it from the Defendants.
    (4)Alexander Harris asked both myself and the Second Claimant to go through their files and for us to list what was missing, in particular medical reports, test results (blood, urine) symptoms etc.
    (5)Alexander Harris said they had insufficient evidence to issue the writ until 1997 when they obtained Dr Monro's report."
  32. These affidavits were striking in a number of respects. First of all, for the first time they admit and assert that solicitors were already instructed in the matter before 1995 in the shape of Messrs Leigh Day & Company already referred to in the defence. Second, they give no indication at all of when in 1995 Messrs Alexander Harris were instructed or what the claimants were doing in respect of their claim between August 1994 and whatever date it was in 1995 when Messrs Alexander Harris took over. Third, there is no indication of what the claimants in fact did in response to the advice they had been given by their solicitors as to when to issue proceedings or what the source was of delay. Fourth, although it is reported that the solicitors took the view that they could not issue proceedings because of absence of documentation, the event that is said to have caused them to change their position is not the finding of that documentation or a decision that it did not matter, but a report of Dr Monro in 1997, that is to say a completely different type of information from that which was previously said to be lacking. Fifth, as we shall see in due course the judge himself pointed out, the reference to Dr Monro's report cannot be accurate. Dr Monro had produced two reports in this case: one in September 1994, to which I have already referred, and another in September 1997, in which she sets out at considerable length a number of consultations which she had had previously with the claimants. But neither of those reports can be a report that the solicitors relied on to issue the proceedings. One had been made two and a half years previously and all along had been in the possession of the claimants, and the other was not forthcoming until nine months after the writ was issued.
  33. That then was the state of the evidence. The judge, on the basis of that evidence, set about deciding the issues that were before him. First, in respect of the date of knowledge, and, secondly, if that knowledge were in his view outside the three year period, whether he should exercise his section 33 discretion. He did that in accordance with the order before District Judge Bootland on the basis of affidavits.
  34. So far as the substance of the judge's decision is concerned, I should make it clear, as Mr Benson made it clear, that the complaint in the appeal is in respect of the fact that the judge decided to deal with this matter on affidavit evidence alone. It is accepted that if it was open to him properly to act on that evidence, then the conclusion to which he in fact came as to date of knowledge cannot be criticised. Nonetheless, I think it appropriate that I should say something about the judge's conclusion, not only because of fairness to the judge himself, but also because it is important that it should be understood, as I shall in due course indicate, that although the reason that this appeal fails is because the criticisms of the procedure adopted by the judge are without foundation, nonetheless and in any event the actual decision to which he came cannot be criticised.
  35. A striking factor in this case was that firm medical advice on the client's case was not obtained until August 1997. But for many years before that the claimants had been asserting, through their solicitors and through their union, that their disabilities were indeed the fault of their employers and of the pest control operations that their employers put in hand. The judge referred to the multitude of authority with which the question of date of knowledge has unfortunately become encumbered, but also directed himself, in my respectful judgement correctly, that he could find helpful authority in two recent cases in this court, Spargo [1997] PIQR at page 235 and Sniezek v Bundy (Letchworth) Ltd [2000] PIQR at page 213. The judge set out the numbered principles which are to be found in the judgment of Brooke LJ in Spargo and treated them as a clear guide to him. He was, if I may say so, entirely right to do that: because, as this court pointed out in Corbin v Penfold Metallising [2000] PIQR at page 247, it is clear that those numbered principles were not intended by this court simply as guidelines but as a binding set of rules that should be applied in limitation cases. The judge directed himself at page 21 F of the judgment that, on the basis of what had been said in Spargo, he must look at the actual state of mind and beliefs of the claimants rather than standing back, as he put it, and considering objectively the hypothetical reasonable litigant.
  36. On the particular issue in this case he found assistance in Sniezek v Bundy (Letchworth) Ltd, to which I have already referred, on the question of the significance of firm belief on the part of the claimant. In my judgement the head note in the report of Sniezek v Bundy (Letchworth) Ltd accurately states the position, and I will venture to quote it:
  37. "(1) Applying the third principle in Spargo v. North Essex District Heath Authority ..., it was necessary to distinguish between a claimant who has a firm belief that he has a significant injury, attributable to his working conditions, especially one which takes him to a solicitor for advice about a claim, a belief which he retains whatever contrary advice he receives, and a claimant who believes that he may have, or even probably has, a significant injury which is attributable to his working conditions, but is not sure and feels it necessary to have expert advice on those questions. The former has knowledge of significant injury and attribution for the purposes of section 14; the latter does not."
  38. The court held that the claimant in that case fell into the former category. I would also mention, without citing it, the passage at page 233 of the report into that case from the judgment of Simon Brown LJ, which underlines in different terms the distinction made in the head note summary. The judge also, at page 19 E of the judgment, made the important distinction between knowledge for the purpose of section 14 and information for the purpose of actually setting on foot proceedings. As he said:
  39. "One can have knowledge within Section 14 of the Limitation Act, but not yet be in a position to initiate proceedings because the necessary evidence is not available."
  40. He considered, in my judgement rightly, that that was a relevant consideration in this case.
  41. The judge in his judgment set out the evidence that he had received in the affidavit, including the assertions by the claimants that they did not have the necessary knowledge until they had consulted Dr Monro. However, he drew attention to a number of matters. Firstly, that they had both consulted solicitors in 1991 and that no explanation of that had been given in their affidavits, a matter to which I have already drawn attention. In the case of Mrs Griffin he also drew attention to the fact that she had caused an entry to be made in the first defendant's accident book which complained of the effect of inhalation in 1990 and that in March 1994 Leigh Day & Company had written a letter saying that they had been instructed by Mrs Griffin and Mrs Lawson, that those ladies believed that their health had been affected by chemical sprays and pesticide and that those matters had come to a head in late 1990. That letter was written after the issue of the writ. But before the issue of the writ, that is to say in November 1993, Leigh Day & Company had written stating that they wished to make a claim against the health authority in respect of the spraying of pesticides. The judge's comment on the latter letter was that no doubt was expressed about liability. In respect of the former letter he said this:
  42. "The significance of that letter, although it falls within the three year period, is that it pre-dates the date upon which in this trial of the preliminary issue it is asserted on the claimants' behalf that they had relevant knowledge, which was not until August 1994. It is difficult, in my judgment, to read that letter as indicating other than knowledge as defined in the Limitation Act 1990."
  43. In the case of Mrs Lawson, she had been involved in the solicitor's letters of November 1993, and she had also taken part in the sit ins in March 1994, to which the judge did not give a great deal of weight, but he said this:
  44. "... the fact that these claimants felt sufficiently strongly to engage in sit ins in March 1994 before it is said they had relevant knowledge is, in my judgment, of some significance."
  45. The judge concluded in the following terms:
  46. "Standing back and looking at these facts, notwithstanding the protestations in the affidavits of the claimants that they merely suspected until they received the confirmation from Dr. Monro in August of 1994, I am bound to say that I am driven inexorably to the conclusion that their state of mind was more than one of mere suspicion. It was, in my judgment, from looking at the documentation in question and, indeed, drawing inferences from the fact that they went on and on seeking medical evidence to support their case, notwithstanding receiving negative advice from bodies which they regarded as highly reputable, that indeed these two ladies had convinced themselves at the very early stage that their illnesses were attributable to their employment with the defendants. It may be that at first they related it principally to the single exposure to which they referred in the accident book, namely in July 1990, but certainly in my judgment they had reached a firm conclusion in their own minds, and the steps that they were then taking were steps not merely (in the words of Purchas L.J.) to obtain reassurance or confirmation, but to try to get evidence to pursue their case. In their own minds they had a sufficiently firm belief, in my judgment, from the time when they consulted solicitors, which must have been about the end of 1991 to constitute knowledge within the meaning of Section 14. Accordingly, I judge that these two ladies fell on the wrong side of the dividing line which is described in the authorities to which I have referred. They had a firm belief as early as the end of 1991, and the confirmation that they received in August 1994 was not sufficient to postpone their date of knowledge until then. Accordingly, in my judgment, on the Section 14 issue, these claims are statute barred."
  47. So far as the section 33 issue was concerned, the judge correctly set out the considerations that he had to have in mind and drew attention to the fact that, in particular in respect of subsections (e) and (f) of section 33(3), no reasonable explanation had been provided for the delay. He had specifically asked for evidence on that point, and his judgment was that he had not received it.
  48. I have already set out in rather more detail than the judge adopted, because he dealt with this matter shortly and was entitled to do so, the difficulties of the affidavit evidence that was filed in order to meet the question of the delay between 1994 and 1997. I do not need to repeat those criticisms. The judge considered that the evidence was wholly inadequate to meet the standard required under section 33. He was right so to conclude.
  49. He also dealt with the further feature that he was required to look at under section 33(3)(b): the extent to which the evidence was likely to be less cogent than if the action had been brought within the time allowed. The judge said this at page 31 F of the judgment:
  50. "We are dealing here with events going back to the early 1980's and ending in about 1990, or at the very latest in the case of the second claimant, 1992. I am informed that various documents have been destroyed. Investigation will have to be made into the types of chemical used, the quantities of chemical used on each occasion and the location of the claimants when those chemicals were used. There will be issues not merely as between the claimants and the defendants, but important and significant issues as between the defendants themselves which will depend upon oral evidence and, indeed, upon expert evidence as to the effect of exposures at various different times. There was no notification given to the second, third, fourth and fifth defendants until the issue of these proceedings. At the most before then all that they knew was a request for lists of chemicals that they had used. There was no intimation of claim given to them. As far as the first defendants were concerned, although they had greater knowledge because of their closer connection with the claimants, they did not receive any detailed allegations from the claimants until September 1997. The hospital in question closed in March 1994. Its staff have inevitably dispersed over the period since. The court will have to consider not merely the questions of causation, but also of negligence in breach.
    In my judgment, there can be absolutely no doubt whatsoever that the cogency of the evidence will be affected by the delay that has occurred."
  51. He also considered whether the claimants' case was a sufficiently strong one for his discretionary judgment to overcome the difficulties he had already pointed out, and, whilst reaching no conclusion on that point, said that a number of difficulties were still unexplained and that he could not find in the evidence before him that the case was sufficiently strong. He also took into account, or said that he did, the fact that the claimants were in receipt of legal aid funding. In so doing he relied on the case in this court of Lye v Marks & Spencer unreported, 15th February 1988, which it is agreed, and it is agreed the judge correctly understood, does not say that legal aid in itself is a factor, but does say that the impecuniosity of defendants is a potential factor.
  52. With that extremely long introduction, I can deal comparatively shortly with the complaints that are made about the judge's judgment.
  53. The first and central complaint is about the procedure that he adopted. It is accepted on all sides that the Deputy District Judge's order was an unusual one. But it was an order by consent, and therefore necessarily not appealed, and, as I have already demonstrated, I do not think that any effective application was made to the trial judge that he should not proceed in the way agreed before the Deputy District Judge, at least in respect of whether there should be further oral evidence. Equally, at the trial before the judge there was no complaint made, as there now is, that a different procedure had been adopted in respect of the third claimant. Although it was at one stage of the application suggested that it would be better if all were dealt with equally, that, as far as I can see, was in respect of the evidence to fill the lacuna between 1994 and 1997. Certainly what was not suggested to the judge was that he would be acting unfairly to the first and second claimants if he dealt with the third claimant in the way that he proposed, nor could any such submission have been made to him. As I have already pointed out, what was envisaged in the case of the third claimant was that she should be cross-examined; not something to accommodate or advantage her, but something, rightly or wrongly, to enable the defendants to investigate her case. There can be no complaint whatsoever that such an order was not made in respect of the first and second claimants. As my Lord, Jonathan Parker LJ, pointed out in the course of argument, that was an application, if made at all, that was to be made on the part of the defendants. If they did not want to make it, that was the end of the story.
  54. The allegation of unfairness in the grounds of appeal arises because of a misunderstanding, difficult to comprehend but nonetheless present, about the judge's order. The judge did not order, as I have already said on at least one occasion, that the third claimant should give oral evidence in chief. He simply ordered that she should be cross-examined. The judge was faced with a difficult and unusual problem; but no criticism at all could be made of the way in which he decided to rule, granted the orders that had already been made in the case. I regard the complaint in terms of unfairness and inappropriate procedure as quite hopeless. As is accepted, as I have indicated, once that hurdle is crossed, the issue was one of fact for the judge correctly directing himself as to the law, which he did, and no complaint, as I have said, is made of his conclusion.
  55. I turn to the section 33 issues. Mr Benson correctly and properly drew our attention to what was said in this court by Purchas LJ in Nash v Eli Lilly & Co [1993] 1 WLR 782 at page 802 E, where he said that the burden of showing that it would be equitable to disapply the limitation period rested upon the plaintiff.
  56. Various complaints are made, however, as to the way in which the judge dealt with the matter. Firstly, as we have seen, the judge rejected the explanations given in the appellants' second affidavits. He rejected them not because he thought, or could think, that what was said in them is untrue, but because what was said in those affidavits simply did not meet the difficulties that the claimants had to overcome. It is complained that, in so doing, he placed an onus on the claimant to produce reasons for a delay which was, in the contention of the appellants, reasonable when judged by objective standards. For that latter gloss on the principle set out in Nash v Eli Lilly reliance is placed on the observations of Ward LJ in Coad v Cornwall & Scilly Isles HA [1997] 1 WLR at page 189. It is impossible, in my judgement, to extract from what Ward LJ said anything remotely approaching the principle that is asserted in this case, that is to say that when the delay is reasonable, when judged objectively, the claimant does not have to explain it. And even if there were such a principle, this case does not remotely fit into that principle. The delay in this case was quite plainly not reasonable on any form of objective standard. It needed an explanation. It did not receive it.
  57. Secondly, complaint is made that the judge appeared to consider that responsibility for the delay lay at least in part in the hands of the appellants' legal advisors, but that he wrongly attributed the delay to the appellants or caused them to be responsible for it and, in so doing, he failed to respect the guidance given by this court in the two cases of Das v Ganju [1948] Butterworths Medico-Legal Law Reports at page 83 and Corbin v Penfold Metallising Ltd [2000] Lloyds MR 247 at page 250.
  58. What the judge actually said was, first, that he took into account the relevance of alternative remedies as discussed by the House of Lords in Thompson v Brown [1981] 1 WLR. Secondly, he said this at the end of his judgment:
  59. "Regrettably, therefore, because I have very great sympathy for the claimants and the position in which they found themselves, and it may be that some of the problems facing them are not at their door but at the hands of those advising them in the past, regrettably I have come to the conclusion that this issue of limitation determined as a preliminary issue must be decided against them..."
  60. The judge did not make, because he was not asked to make, any findings about any fault on the part of legal advisers. He only had any evidence at all on that point because he had taken the initiative to obtain it, when in the order before the Deputy District Judge the claimants advisers had been content to proceed on the original affidavits. As the judge found on this point, the claimants' own affidavits were vague in the extreme. If the fault is going to be attributed to lawyers and the claimant submits that he acted perfectly reasonably, he has got to make the reasons for that clear. He did not do so. Further, the judge was entirely justified in making the finding that he did, at page 30 of the judgment, that no proper reason had been put forward for the delay since the positive advice was obtained in August 1994. He did not attribute the failings solely to the lawyers, nor on the evidence could he have done so. The evidence necessary to deal with that point was simply not provided to the court.
  61. Thirdly, criticism was made of the way in which the judge dealt with the point arising under section 33(3)(b) of the Act with regard to cogency of evidence in a passage. Two complaints are made. The first that in respect of loss or destruction of documents there was inadequate evidence of what exactly had happened or not happened, and the judge should not have assumed that the absence of the document was not the fault of the defendants themselves rather than the fault of the claimants' delay. The first point to make about that is, again, that if there were defects of evidence in this respect that was because of the terms upon which the parties agreed to fight this case. Further, however, there was evidence which the judge was entitled to accept -- no-one suggested it was untrue -- that the hospital had been closed in 1994; therefore understandably workers had dispersed; there had been a whole series of structural changes in the management of the hospital; and the case is in fact now being conducted on behalf of the first defendants by a successor organisation quite different from that which had been in place in the beginning of the 1990s. In such a case it is very easy for a judge to find prejudice simply on the face of the evidence. There is no need to require pedantic setting out by the defendants of what was there that is not now there, even if they were able so to say. In my judgement, there is nothing in this point. The judge was entitled to act as he did.
  62. Secondly, it is suggested that he should have found that prejudice existed, if it existed at all, only in respect of the second to fifth defendants: because they were people who had not been on notice, in contrast to the first defendants, and therefore could not be expected to have made provision as it is contended the first defendants should have done. I regard that as not only artificial in the extreme, but also not open to the appellants on this appeal because it has never been suggested until this ground was ventilated that a different order was sought against different parties. In any event, the case is brought and sought to be maintained against all of them. The first defendant may wish to claim against the other parties. The evidence in those proceedings is likely to be less cogent because of the delay, as the judge pointed out and as he was entirely justified in pointing out.
  63. Other complaints made of the judge's assessment are equally without force. Firstly, it was submitted that the reference to the position of an impecunious person on the basis of the judgment of this court in Lye v Marks & Spencers, although justified in English law as it stood before the year 2000, was open to question now because of the effect of the Human Rights Act. That I am afraid is a complete misapprehension. The judgment in Lye v Marks & Spencers does not deprive an impecunious person of a fair trial, nor discriminate against him in respect of the way in which his case is tried under Article 6. It simply introduces in his case a consideration different from that applying to other claimants in respect of this application of a handicap that he otherwise would have. In any event, I do not need to go into that in more detail because it is quite clear that the judge did not rely on this as in any way a significant point. Secondly, although the judge referred to the possibility of a remedy against the solicitors, he did not rely on that as a reason for his decision. The criticism made of him is that he had no evidence of the way in which the solicitors had or had not conducted matter. That may or may not be so; but if that argument is made on behalf of the appellants, it does not sit easy with the complaint made in connection with the case of Das v Ganju.
  64. Looking at the matter in the round, as the judge did, he was entirely entitled to come to the conclusion that he came to in exercising his discretion or judgement under section 33, and for that reason and for the reasons that I have already given, I would dismiss this appeal.
  65. I would mention only three further points.
  66. First of all, the judge's determination of how he should proceed was the subject of some criticism in this court. That criticism was not justified. The judge was faced with a very difficult situation, and he dealt with it with fairness and care, bearing mind also the importance of making effective use of the court's resources. In his judgment he fairly dealt with all the points, and in particular the points that could be addressed in favour of the claimants; and I would commend him for that.
  67. Secondly, my Lord, Peter Gibson LJ, drew attention in opening this appeal to the utterly deplorable way in which the appeal has been prepared. The history is set out in a letter written to the court by the solicitor for the appellants dated 6th May 2001. What happened was this. Bundles were originally submitted to the court which did not comply with the court's requirements. They were therefore returned, and new bundles were substituted. After that had been done, leading counsel then instructed on behalf of the appellants, not Mr Benson who appears today, apparently advised that the bundles should be revised. Therefore, a wholly new operation was put in hand. When the bundles eventually emerged they contained a large amount of new material to which the defendants took objection, including two unsworn affidavits that had not been before the judge below, a lengthy affidavit on the part of the third claimant which it was originally proposed should be introduced into evidence in this court, but was not, and various other errors, such as the omission of some pages of the judge's judgment. When this state of affairs came to the attention of this court last week as it set about its duty of pre-reading the case in order to inform itself properly, it became clear to us that the state of the papers was such that we could not efficiently deal with the appeal on that basis. It was therefore necessary to ask a member of the staff of this court, on Thursday of last week, to remove himself from his proper duties for a day in order to assist us in finding our way round the bundles, which he eventually did. Not only has there been a deplorable waste of time in this case, but I am horrified by the amount of unnecessary copying of material that has gone on, copying of material that, in the event, has not been used. Not only has the court's time been taken up, but also there has been, in my judgement, serious waste of public resources. I trust nothing like this is going to happen again.
  68. Thirdly, I find it necessary to put on record that in two respects the matter that was originally placed before this court in this appeal was (and I use this phrase advisedly) seriously misleading. I have already drawn attention to ground 6 of the grounds of appeal, which asserted that there had been an application on behalf of the first and second claimants that they should give oral evidence to the judge. It is now accepted that there was no such application. I do not understand how that claim came to be made in that ground, now withdrawn in front of us. Secondly, I cannot find anywhere either in the grounds of appeal or in the skeleton argument, or anywhere else, where it is made clear that the order of District Judge Bootland of which such complaint was made was a consent order. That was plainly something that in any application to appeal to this court should have been made absolutely clear.
  69. I make these points not just because it wastes the court's time in preparation if the nature of the case below is not made plain, but also I have very little doubt that if the Lord Justice who considered the application for permission to appeal had had those two matters drawn his attention, it is extremely likely that he would not have given permission to appeal at all. He was led to believe that he was faced with a case which had a history quite different from that which it in fact had. Had that been done, this court might not have been burdened with the case in any event, and a great deal of public time, energy and expense would have been saved.
  70. In the event, however, I simply dismiss this appeal.
  71. LORD JUSTICE JONATHAN PARKER: I agree.
  72. LORD JUSTICE PETER GIBSON: I can and do sympathise with the claimants in having suffered the health disorders which they claim to have suffered. But Parliament has by the Limitation Act 1980 required claimants wishing to pursue personal injury actions to act promptly, subject to the limited exceptions which are spelt out in the Act. As the Deputy Judge explained in a judgment to which I would pay tribute, the limitation objection taken by the defendants is one which cannot be overcome by these claimants.
  73. For the reasons given by my Lord, Buxton LJ, the criticisms which have been made of the Deputy Judge's judgment are without foundation. I too would dismiss this appeal.
  74. Order:Appeal dismissed with costs. Detailed assessment of the appellant's assisted costs. The costs judge is to assess what contribution is appropriate for the legally assisted party. Subject to that the Legal Services Commission will be required to pay.
    (Order does not form part of approved judgment)


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/818.html