England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(His Honour Judge Behrens QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 13th November 2001

1. LORD JUSTICE HENRY:I will ask Sir Anthony Evans to give the first judgment.
2. SIR ANTHONY EVANS: This appeal is from a judgment given by His Honour Judge Behrens QC at Leeds on 27th April 2001. The learned judge held, on the trial of a preliminary issue, that the claim in the action was not time-barred under the provisions of the Limitation Act 1980.
3. The claimant is Kevin Parsonage. He was the driver of a Transit van which was involved in a multi-vehicle collision on the M18 motorway on 28th September 1992. The accident occurred at about 7.15am, in what are described as foggy and wet/damp conditions. The defendants, Fastway Steel Limited, were his employers and the owners of the van. The defendant company in fact is in liquidation and was indeed struck off the register in 1996, but was restored to the register in February 2000 for the purposes of this action.
4. The circumstances of the accident were these. No less than 54 vehicles were involved in it. The fog had reduced visibility to what is variously estimated as 30 to 50 yards. One vehicle was a Scania lorry - a three-deck livestock transporter, which was loaded with sheep. It stopped clear of the traffic in front of it in the centre lane of the motorway. Its driver, Mr Roddam, was getting out of his cab when the Transit van driven by the claimant collided with the rear of his vehicle. The bonnet of the Transit van went underneath the rear overhang of the lorry, so that the Transit's windscreen ran up against the rear of the lorry. Then another vehicle came up from behind in the offside lane. This was a Volvo articulated lorry. It jack-knifed and its cab hit the front of the Scania lorry, whilst its trailer hit the rear of the Transit van, which was embedded in the rear of the Scania transporter. Evidence of skid marks, coupled with the recorder in the Volvo articulated lorry, has been said to show that its speed was 64 miles per hour, which reduced suddenly to zero when its wheels locked and it skidded to a halt. There were tragic results of the accident for the claimant and his passenger. The claimant was seriously injured. His injuries included a fractured skull and other head injuries, and he has no recollection whatsoever of the accident. His passenger, Steven Thirkill, was killed.
5. There is a pending claim for damages brought by the claimant against the driver of the Volvo articulated lorry and his employers. That action was started in September 1995. The driver of the Volvo pleaded guilty on an earlier occasion to a charge of careless driving. The issue in those pending proceedings is whether the negligent driving of that vehicle was causative of the claimant's injuries: in other words, whether the claimant's injuries were suffered in the first or the second collision, or in both.
6. The claimant was charged with causing death by dangerous driving, the death of course being that of his passenger. He pleaded guilty to the charge of dangerous driving and the plea was accepted because the same causation issue arose: that is to say, whether the death of the passenger was caused by the Transit's collision with the Scania transporter or by the Volvo vehicle's collision with it.
7. The claimant issued these proceedings against the defendants, as his employers and owners of the Transit van, on 16th May 2000. The basis of the allegation of negligence is that the Transit had two seriously defective tyres - the offside front and the nearside rear. These defects were described in a contemporary witness statement by Police Constable Hirst. The claimant contends in that action that (paragraph 6 of the particulars of claim):

"Had the said Transit van been provided with tyres in a safe condition with adequate tread then the Claimant could have prevented the said van from colliding with the Scania cattle truck or at least the speed of the said van at the moment of impact would have been greatly reduced."

8. The defendants raised, among other defences, the issues that were tried by the learned judge under the Limitation Act.
9. The intervening history included the following. Police Constable Hirst, the traffic officer responsible for investigating the matter, in his witness statement which was obtained for the purposes of the prosecution of the claimant, said that it was "unlikely" that the condition of either of the defective tyres of the Transit van would have had any material bearing on the outcome of the accident. He said this in particular because, whilst there were skid marks behind the Volvo lorry, there were none behind the Transit van.
10. In March 1994 the claimant's solicitors consulted Mr Jowitt of Strange, Strange and Gardner, who had already reported in relation to the prosecution of the claimant. On this occasion he reported to the claimant's solicitors in the following terms, which were quoted by the judge:

"When the articulated vehicle was braked, it deposited tyre/skid marks, so that the road surface cannot have been that wet, but [that] no tyre/skid marks were deposited by the van is suggestive that the van was not braked under emergency-type conditions prior to the collision. Hence, the state of one of the tyres on the van is probably an irrelevance. Whilst we have no means of knowing, estimating or calculating the speed of the van as it struck the cattle truck, it would be impossible to quantify what difference that tyre would have made had it been [sound]. However, given the extent of the crush of the front of the van, the overwhelming probability is, in our view, that the condition of the tyre was an irrelevance to the causation and severity of the collision."

11. On the basis of that report by Mr Jowitt, the claimant and his solicitors decided that they were unable to recover damages from the present defendants, his employers, and on 1st September 1995 they brought proceedings against the driver of the Volvo and his employers alone. Later, however, in October 1998, in connection with those other proceedings, the claimant's solicitors obtained a report from Dr Searle. His qualifications are described by the learned judge. He expressed a different view. The learned judge quoted parts of his report as follows:

"The road surface was wet and the witnesses all report the Transit skidded for a prolonged distance before the eventual collision with the livestock transporter.

It is, therefore, somewhat surprising that PC Hirst should say that the condition of the tyres did not have any material bearing upon the outcome of the accident. At the very least, the collision speed of the first impact would have been reduced. Possibly, depending upon the length of the skid, the first impact might have been avoided altogether. Indeed, a calculation suggests that the tyres have had a very marked effect upon the first impact. The approach speed of the van was, according to [a person named by Dr Searle as Mr Hillsdon], about 65 miles per hour or so. The Transit had not, however, collided with the livestock transporter at anything like that speed. The damage seen in the Police photographs, even if for a moment one imagines it all to be due to the first impact, would represent a collision speed of some 30 to 35 miles per hour. The damage is extreme, not because the impact speed has been enormous but because the rear of the transporter goes above the strong members and the engine of the Transit van colliding directly into the windscreen."

12. That led Dr Searle to express the following conclusion:

"Had Mr Parsonage had the benefit of the normal level of braking of his vehicle, he would have struck the livestock transporter at a much lower speed."

13. Dr Searle refers to statements by "all" the witnesses. There are apparently some statements which do not say in terms that the Transit van did skid. However, two statements which are before us are those by Mr Roddam, the driver of the Scania vehicle, and Mr Shannon, the driver of a car who was also nearby. Both support the suggestion that the Transit skidded. It seems to have been accepted, although the matter has not gone to trial, that only if the Transit skidded can the poor condition of two of its tyres be regarded as causative of its collision with the Scania. It may be, however, that, if the Transit van was braked at all, it was practically inevitable as a matter of common sense that the wheels would have locked in the conditions that were then prevailing.
14. After that report by Dr Searle was received, the claimant and his solicitors reconsidered their position. The claim in the present action was made within three years after that report was received. But it was, of course, more than three years after the accident when the cause of action arose. That three-year period had expired on 28th September 1995. It was also more than three years since Mr Jowitt's report was received in October 1994.
15. In order to complete the history between November 1997 and April 2000, I should refer briefly to the correspondence bundle with which we have been provided. It was not until 14th August 1998 that the claimant's solicitors first wrote to the insurers of the present defendants, his former employers. A pro forma reply was received dated 23rd September 1998 and, despite further letters from the claimant's solicitors dated 30th September 1998 and 10th December 1998, no further response was received from the insurers at that time. On 5th July 1999 the claimant's solicitors tried again. This provoked, surprisingly, on 19th July 1991, exactly the same pro forma response as before, asking for further information from them. The solicitors wrote again on 28th September 1999, and there appears to have been a telephone conversation on 4th October 1999. The solicitors then wrote for a third time on 23rd November 1999 and yet again, perhaps occasioning even more surprise, they received the same pro forma response on 24th November 1999. One is reminded of the phrase used by the late Lord Justice Sachs in this court many years ago, when he said that the tactics of the insurers in that case were ones of which General "Stonewall" Jackson himself would have been proud. There was also some correspondence between the claimant's solicitors and the Prudential company, who were the motor insurers for the defendant company. It was during that period in January/February 2000 that the claimant's solicitors, having discovered that the defendant company had been struck off the register, caused it to be restored to the register for the purposes of these proceedings.
16. The learned judge decided two issues arising under the Limitation Act. He held, first, that the relevant date of knowledge for the purposes of sections 11 and 14(3) of the Act (that is to say, the date when the relevant three-year period began) was some time shortly after Mr Jowitt's report was received. That was in 1994. He reached that conclusion essentially because he held that the claimant and his solicitors should then have obtained a second expert's report, having received Mr Jowitt's negative view. The issue that arose, and was decided against the claimant by the learned judge, was whether it was reasonable or not for him at that stage to accept Mr Jowitt's report without seeking a further opinion. The judge's conclusion on that issue is the subject of the claimant's respondent's notice in the present appeal, but, as will appear, it is unnecessary for us to decide that issue and we have not heard argument upon it. The learned judge's second holding was that the claimant's time should be extended under section 33 of the Limitation Act to cover this claim which was brought in May 2000, and it is the defendants who appeal against that decision.
17. Before coming to that issue, I should mention one further aspect of the history. It is accepted on behalf of the claimant that for a period, apparently between 1995 and about 2000, he "consciously exaggerated" the symptoms of the injuries which he had suffered in this accident - so much so that, when these proceedings were brought, they were brought by his wife as his litigation friend on the ground that he himself was not competent to conduct the litigation. On that same basis, the claimant relied initially on section 28 of the Limitation Act as excusing him from its application on those grounds. That contention, however, was abandoned before the hearing of these issues before the learned judge. Indeed, the claimant accepts that he was consciously exaggerating his symptoms during that period, and it is one of the matters relied upon by the defendants in this appeal.
18. Coming, therefore, to section 33, the terms of 33(1) and (3) are material. Section 33(1) provides:

"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 llA] 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."

19. Section 33(3) provides:

"In acting under this section the court shall have regard to all the circumstances of the case and in particular to -

(a)the length of, and the reasons for, the delay on the part of the plaintiff;

(b)the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 [, by section 11A] or (as the case may be) by section 12;

(c)the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d)the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e)the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."

20. The learned judge dealt with this issue as follows. Having quoted the terms of the section, he said:

"It is necessary, I think, in a case such as this to go through the relevant sub-sections. I, therefore, start with sub-section (a). I bear in mind, of course, that I have to have regard to all of the circumstances of the case and I also have regard to the authorities which I was cited, in particular a judgment of Lord Justice Parker in Hartley v Birmingham City Council where he stressed that as far as he was concerned, one of the most important factors, what is of paramount importance, is the effect of the delay on the Defendant's ability to defend."

21. The learned judge then dealt successively with each of the subparagraphs under section 33(3). The first was (a), "the length of, and the reasons for, the delay on the part of the plaintiff." He considered that matter and he reached the conclusion that there was some delay over and above the delay that had been caused by the claimant's initial acceptance of the advice given by Mr Jowitt. He then dealt with subparagraph (b), "the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought ..." He referred to a witness statement from the solicitor of the defendants (the present appellants). He considered that in some detail, and I will return to that later. Turning to subparagraph (c), "the conduct of the defendant after the cause of action arose ...", he reminded himself of the defendants' attitude or response (or rather lack of response) to the initial correspondence. For that reason he rejected a suggestion that their conduct had been "impeccable", but he concluded that the criticisms did not seem to him in the final analysis to be substantial. Turning to subparagraph (d) of section 33(3), "the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action," he referred to the admitted conscious exaggeration of his injuries and symptoms by Mr Parsonage. Again, that is matter to which I shall return. With regard to subparagraph (e), he concluded that he did have some criticism of the claimant or his advisers in relation to part of the period which passed between November 1997 and the issue of the proceedings in May 2000. He referred finally, but without any additional reasoning, to subparagraph (f).
22. He then dealt with what was effectively another matter to which his attention had been drawn. That was the submission of Mr Swain, counsel for the defendants, as to what he called the "weakness of the claimant's case". In summary, although the learned judge dealt with this in some detail, he concluded that, since this was not suggested to be a claim which should be struck out without trial, it would not be right for him to refuse relief to a claimant on that ground. He said:

"... it is impossible for me to say that it is a weak case. Therefore, I do not propose to decide this case on the basis that it is a weak case."

23. Finally, I should read the learned judge's conclusion. He said:

"Those, it seems to me, probably at too great a length, are the matters which I have to take into account and I have to decide which of those - where the balance lies.

Clearly, this is not a case where the Claimant has instituted his proceedings as quickly as he might have, but at the end of the day I think that there is force in the submission of Mr Allen [counsel for the defendants] that the most crucial feature is the 3(b) feature, which is the extent to which the evidence is likely to be less cogent than if the action had been brought within the time allowed by Section 11, or which I think comes to much the same thing, although it is concentrating on one side, what Lord Justice Parker said in Hartley v Birmingham County Council, the effect of the delay on the Defendant's ability to defend.

For reasons that I have given, I am not satisfied that there is any significant detriment to the Defendant's ability to defend. I have, therefore, come to the conclusion that this is a case where I should exercise my discretion under Section 33 and direct that the provisions of Section 11 should not apply to this action."

24. Mr Swain, for the defendants, has presented the case before us this morning both attractively and, I would respectfully say, with great skill. He has emphasised the four grounds of appeal, which are as follows. First, he says that the learned judge misdirected himself as to the burden of proof and failed to acknowledge that the burden resting on the claimant is a heavy one. He cited the judgment of this court in Barrand v British Cellophane Ltd (26th January 1995, reference CCRTF 93/0619/C). The leading judgment was by Glidewell LJ. We were reminded in particular of the passage at p.14 of the transcript, where Glidewell LJ said:

"A direction under Section 33 is an exception to a general rule which has already catered for the Plaintiff's ignorance of material facts by providing that time does not run against him until he knows the facts. The onus is on the Plaintiff to show that it would be equitable to make the exception, but the court's discretion to make or refuse the order is unfettered (Thompson v Brown at page 752). The onus on the Plaintiff is a heavy one (Sir Christopher Slade in Feveyear v Cole at page 46)."

25. In the course of Mr Swain's submissions my Lord, Lord Justice May, observed that the reference to "burden of proof" is perhaps not entirely accurate and suggested that the "burden of persuasion" might be more appropriate. I note that Glidewell LJ in fact used the phrase "onus", as did Sir Christopher Slade.
26. The particular passage in the judgment which founds this submission is the one I have already read from the concluding paragraph, where the judge said:

"For reasons that I have given, I am not satisfied that there is any significant detriment to the Defendant's ability to defend."

27. It has to be observed that the learned judge there was expressly directing himself only to subparagraph (b) of the subsection, but nevertheless Mr Swain's submission can stand since there is no other passage in which the learned judge expressly directs himself with regard to a burden or onus of proof or of persuasion.
28. The learned judge approached the matter on the basis that it was for the court to decide (in the words of section 33) whether or not it appeared that it would be equitable to allow the action to proceed. That appears from his judgment (at p.16G), where he embarked upon the inquiry in the following way:

"Section 33 requires me to carry out a balancing exercise."

29. Then, after quoting it, he continued:

"It, therefore, requires one to carry out a balancing exercise between the prejudice to the plaintiff and the prejudice to the defendant."

30. Then later (at p.25F) he said, in the passage I have already quoted:

"... I have to decide which of those - where the balance lies."

31. In my judgment, the use of the words "I am not satisfied" by the learned judge in the concluding paragraph of his judgment was not intended as a conscious reference to the burden or onus, whether of persuasion or proof. He was merely expressing his conclusion on the issue which he was called upon to decide. It seems to me that that was an entirely permissible approach and that it would be wrong to read into those words alone any suggestion that the learned judge somehow misdirected himself in coming to the decision which he explained so fully and so clearly throughout the whole of the relevant part of his judgment. I therefore would reject that ground of appeal.
32. The second ground of appeal is to the effect that the learned judge was wrong in his conclusion with regard to subparagraph (b). It is submitted that there was, and is, considerable prejudice to the defendants due to the delay and its effect upon evidence which the defendant company either does, or might, seek to rely upon. In particular, Mr Swain emphasises that eye witnesses cannot be expected now to recall events as clearly as they would have done, say, in 1997 or 1998, if the proceedings had been started in about 1996. He adds to that the fact that one such witness, Mr Roddam, may not now be available to be called as a witness at the trial. The learned judge dealt with this at p.20D of his judgment, where he said:

"It is right to say that the evidence from the witnesses will be of importance. However, it is equally right to say that this is a case where a very significant part of the case will depend on the expert evidence."

33. After referring to Dr Searle, he continued:

"It is, however, the fact that it is not, in my view, a case which depends wholly on evidence of fact. It is a case where evidence of fact is relevant but is of less significance than many others."

34. Mr Swain referred us to the decision of this court in Dale v British Coal Corporation [1992] PIQR 373, and to the fact that the evidence before the judge included a lengthy affidavit from his instructing solicitor. Indeed, the learned judge refers to that affidavit at p.19D of his judgment.
35. In my judgment, the learned judge was correct in his analysis of this case and right to hold that this is not one which depends upon any evidence from eye witnesses beyond what is already contained in their witness statements. I would hold that the learned judge's conclusion on this issue cannot be faulted. The issue is whether or not the Transit skidded before colliding with the Scania transporter: I would prefer to say whether or not it braked, because I find difficulty in conceding that it can have braked, especially in an emergency and in those conditions, without skidding. But however that may be, the witness statements include Mr Roddam's, which is that he heard a screech of brakes, and Mr Shannon's, which is that he saw a skid. Those witnesses could perhaps be asked, "For how long did you hear or see the skid?", but even so, what remains is essentially a question for expert evidence, as Dr Searle's report indeed demonstrates. I would hold that the cogency of any additional eye witness evidence is of little relevance, given the nature of the issues which arise in the present case.
36. The third ground of appeal elides with the fourth, as Mr Swain acknowledged in his submissions. Both arise out of the admitted fact that the claimant consciously exaggerated the effects of his injuries when he was examined by consultants for the purposes, as I understand it, of the proceedings against the Volvo driver. In 1995 those proceedings were issued in his own name. This claim was brought in May 2000 by his wife as his litigation friend on the basis that he was incompetent to conduct his own affairs. For the same reason, exemption was claimed under section 28 of the Limitation Act. But before the hearing of this issue in April 2001 the claimant acknowledged that that was wrong and he conceded (or it was conceded on his behalf) that he had consciously exaggerated his injuries during the intervening period. Before the judge, this submission was (or at least was understood to be) to the effect that the court will never exercise its discretion under section 33 in favour of the claimant in circumstances such as these. The learned judge rejected that submission (p.22F of the judgment) and Mr Swain has not pursued it in those terms before us today.
37. Mr Swain does rely upon the judgment of this court in Long v Tolchard & Sons Ltd [2001] PIQR 18. In particular, he referred us to a passage in Roch LJ's judgment at paragraphs 34 and 35. What Roch LJ said there included:

"The plaintiff's conduct in claiming social security benefits in March 1988 but still not indicating to the defendants that he intended to claim against them is to be weighed in the scale. Moreover it is clear that this is a plaintiff whose credibility has been substantially, if not totally, undermined by the untruths contained in his applications for benefits ..."

38. Mr Swain submits that the conscious exaggeration which is admitted in the present case is on any view of the matter a weighty factor to be taken into account. He submits, first, that it can affect - perhaps has affected - the quality of the medical evidence from the very fact that the examining doctors may have been misled. Secondly, he submits that it affects the equity of the matter, by analogy with the well-known doctrine of "coming to equity with clean hands". Perhaps less formally, Mr Swain rephrased that submission in terms of the difficulty which is created for the court in assessing the amounts of compensation which should be awarded to a claimant with such a history; and, I would add (although I think Mr Swain did not mention this expressly), the court's task of assessing the credibility of a claimant might also be made more difficult by such a history.
39. The situation in the present case, however, is that extensive medical evidence has in fact been obtained and its quality is unaffected in the result, for the reason already indicated: the conscious exaggeration has been exposed. I would accept that this is, or can be, a relevant factor, but I would add that its weight must vary with the circumstances of each case. It seems to me that that essentially was the basis upon which the learned judge proceeded here, because, on a reading of p.22 of his judgment, whilst expressly rejecting the submission that there was some rule of law which precluded the exercise of discretion in the claimant's favour, I do not think, as I read his judgment, that he rejected the relevance of this factor altogether. Indeed, he quotes from Mr Allen's submissions in a sense which suggests that it was a matter which he was prepared to take into account. I would hold that the learned judge's exercise of his discretion is not to be faulted on this ground either.
40. Mr Swain added what was effectively a fifth ground of appeal by reference in particular to the observation made by the learned single lord justice who gave permission for this appeal, which was to the effect that the court should be influenced by, and take account of, the fact that this was a weak case, as it was said, from the claimant's point of view. The matter was dealt with by the judge in some detail at pp.23-25 of his judgment, which I have already summarised. Mr Swain added that in the circumstances of the present case any award of damages was likely to be considerably reduced on account of the contributory negligence of the claimant, having regard to his admission of dangerous driving. In effect, the judge held that this was essentially a case which indeed ought to go to trial so that the issues could be fully investigated there. That is a conclusion which I would endorse.
41. Overall - and it is appropriate to stand back and take an overall view on an issue such as this - it seems to me that the learned judge was certainly entitled to reach the conclusion which he did. It may be that this is a matter which might be described as close to the borderline, or perhaps one where the decision is not easy. On the other hand, it seems to me that it is all the more important in such a case that the learned judge's conclusion should be accepted, assuming, of course, that he has not made any error of law, or misdirected himself, or reached a conclusion which is obviously wrong in the circumstances of the case. It seems to me that, not only can the learned judge's decision not be faulted on any of those grounds, but that it is certainly a decision which he was entitled to reach. I would therefore dismiss this appeal.
42. LORD JUSTICE MAY: I agree that this appeal should be dismissed for the reasons which Sir Anthony Evans has given.
43. Granted that it is for the person seeking a direction under section 33 of the Limitation Act 1980 (excluding the application of sections 11, 11A or 12 of the Act) to persuade the court that the direction should be made, and granted that the burden of persuasion is a heavy one, the equitable decision to be made is, by the various terms of section 33(1), one of balance. This was explicitly the approach which the judge adopted in the present case. He had regard to all the circumstances of the case, as section 33(3) requires, and he systematically went through the considerations which the six subparagraphs of section 33(3) require. On each of those, and as a whole, the judge in my view reached conclusions which were properly available to him on the evidence, for the reasons which Sir Anthony Evans has described.
44. I agree with what my Lord has said on the other grounds of appeal.
45. LORD JUSTICE HENRY: I agree with both judgments. The appeal will be dismissed.
Order: appeal dismissed with costs (to include the costs of the cross-appeal).