England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S AND CITY OF LONDON COURT
(His Honour Judge Simpson

		Royal Courts of Justice Strand, London, WC2A 2LL Friday 30th March 2001

SIR CHRISTOPHER SLADE:

1. At about 7.40p.m on Boxing Day 1996, the appellant claimant, Mr Steeds, while walking his dog on the pavement along East Ferry Road, London, E.14, slipped on a patch of ice, fell and sustained considerable injuries. He seeks to bring proceedings against the respondents, Peverel Management Services Limited Ltd., who own and occupy the premises in Peninsular Court, which are adjacent to the pavement in question. Mr Steeds asserts that the ice was formed from liquid overflowing from those premises.
2. Mr Steeds' solicitors, Lucas & Co., (whom I will call "the solicitors"), failed to issue proceedings within the three year limitation period prescribed by section 11 of the Limitation Act 1980 ("the 1980 Act"); the claim was issued 49 days late on 16^th February 2000. It therefore became necessary to apply to the court under section 33 of the 1980 Act to disapply the three-year time limit and obtain an extension of time on the basis that it would be equitable to allow the action to proceed. District Judge Lipton dismissed the application on 31^st May 2000. Mr Steed then appealed to His Honour Judge Simpson in the Mayor's and City of London Court. He dismissed the appeal on 14^th August 2000.
3. On a renewed application by Mr Steed to this court for permission to appeal from Judge Simpson's judgment, Mummery L.J., having referred to the conditions imposed on second appeals by the CPR Part 52.13 gave the permission sought, essentially on two grounds. First, he considered that this case involves an important point of principle, namely to what extent should the admitted failings of the solicitors be visited upon the applicant in the exercise of the Court's discretion in relation to the particular circumstances set out in section 33(3)(a)(e) and (f) of the 1980 Act. Secondly, he considered that there was another compelling reason for this court to hear the appeal, because in his view there was a high prospect of the court concluding that District Judge Lipton did not exercise his discretion with due regard to the relevant factors. Finally, counsel for Mr Steed, who was instructed by the solicitors, accepted that the delay which had occurred in the issue of the proceedings after the limitation period had expired was the fault of the solicitors and he did not oppose a direction that the solicitors were to pay the costs of the appeal in any event - which direction was duly made.
4. With this permission, granted on these terms, Mr Steeds now appeals to this court from Judge Simpson's judgment.

THE HISTORY OF THE CASE

5. On or about 30^th May 1997, that is about five months following the accident, Mr Steeds instructed the solicitors to act on his behalf. On the same date, the solicitors wrote a letter addressed to "Free Holder/Management Company Peninsular Court" putting the addressee on notice of his claim. No reply to this letter was received. On 25^th November 1997, Mr Steeds wrote to the solicitors informing them that the respondents were responsible for the management of Peninsular Court. On 2^nd December 1997, the solicitors wrote to the respondents, putting them on notice of the claim. This letter was acknowledged on 10^th December 1997. On 12^th December 1997 the solicitors wrote to the respondents providing details of the accident. On 6^th January 1998, AXA Provincial ("AXA") wrote to the solicitors confirming their interest as Public Liability Insurers of the respondents. On 3^rd April 1998, the solicitors wrote to AXA informing them that a medical report had been received.
6. Correspondence and discussions between the solicitors and AXA then followed, covering the period April to November 1998, during the course of which AXA confirmed that they were prepared to accept primary liability, but said that they would contend that Mr Steeds had contributed to the accident by his own negligence. Without prejudice negotiations subsequently followed. In a letter of 19^th August 1999 from AXA to the solicitors, AXA confirmed that primary liability rested with their insured, but suggested that Mr Steed should bear a degree of contributory negligence.
7. Mr Waters had the conduct of this matter on behalf of the solicitors at the relevant time. He left his office for a long holiday, beginning on 7^th December 1999, from which he returned on 13^th January 2000. According to his evidence, on or about 30^th September 1999, in anticipation of his departure, he arranged for a secretary to provide him with a limitation print-out up to the end of December 1999 and also with a print-out of matters from 1^st January 2000. Before leaving on holiday, he worked through the limitation print-outs, with a view to ensuring that claim forms were issued for matters where the limitation period was due to expire in any case, either before or after he left for his holiday. Unfortunately, he failed to notice that the earlier print-out itself ran only up to 23^rd December 1999, while the three-year limitation period in the present case expired on 26^th December 1999.
8. Before his departure, Mr Waters passed the file in the present case, together with a number of other files, to a locum solicitor, who failed to review the case and did not return its file to Mr Waters until 15^th February 2000. On its return, he immediately realised that the limitation period had expired and arranged for a claim form to be issued on behalf of Mr Steeds, which was done the next day, 16^th February, 2000.
9. The respondent's solicitors pointed out that, if this action were to proceed, an application under Section 33 of the 1980 Act would be required to disapply the limitation period. In a letter of 13^th April 2000, the solicitors suggested that this contention "went across the whole ethos of the CPR" and was inappropriate, given that AXA had admitted primary liability in their letter of 19^th August 1999. In my judgment these objections were entirely without substance. Nothing in the CPR disentitled the respondents from relying on the statutory provisions contained in sections 11 and 33 of the 1980 Act.
10. Mr Steeds, through his solicitors, duly applied to District Judge Lipton to dis-apply section 11 of the 1980 Act, pursuant to section 33, which so far as material provides as follows:

"(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 ……. 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.

………………………

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to:

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

c) 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………..;

d) 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;

e) ………………………

f) 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;

g) 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"

11. On the application to the District Judge, Mr Steeds counsel placed heavy reliance on the decision of the House of Lords in Thompson v Brown Construction (Ebbw Vale) Limited & Others [1981] 1 WLR 744, which was the only authority referred to in the District Judge's judgment. It will therefore be convenient to refer to this decision ("Thompsons case )" at this point.

THOMPSONS CASE

12. In Thompsons case, the House of Lords had to consider the application of section 2D of the Limitation Act 1939, as amended ("the 1939 Act"), which was the predecessor of section 33 of the 1980 Act and in all respects material for present purposes took the same form. In that case, the appellant was injured on 4^th March 1976 when scaffolding, on which he was working, collapsed. On 27^th April 1976 solicitors instructed by him notified his claim in negligence against both the scaffolders and the builders. The scaffolders' insurers conducted negotations for settling the case. On 17^th March 1977 they wrote to the appellant's solicitors saying that they were prepared to put forward an offer in settlement. They were asked for particulars of the appellant's earnings and a medical report. The solicitors encountered delay in obtaining the report and, at some date after August 1977, their file dealing with the claim became mislaid and forgotten. After its recovery in the spring of 1979, a writ was issued on 10^th April 1979, 37 days after expiry of the limitation period prescribed by section 2A of the 1939 Act. The scaffolders pleaded by way of defence that the action was out of time. The appellant then applied for a direction under section 2D that the provisions of section 2A should not apply, so as to allow the action to proceed. At the trial of this application by way of a preliminary issue, Phillips J. decided that he was bound by authority to hold that he had no jurisdiction to make a direction, because the appellant would not be prejudiced if the statutory limitation continued to apply, since he had an incontestable case in negligence against his own solicitors, by which he would recover at least as much as he would have recovered against the scaffolders.
13. The House of Lords disagreed with Phillips J's approach to the matter. Lord Diplock, with whose speech all their Lordships agreed, pointed out (at page 751D) ..

"Subsection (3) requires the court to have regard to "all the circumstances of the case" but singles out six matters for particular mention. These six present a curious hotchpotch".

In a sentence which the District Judge in the present case described as an "extraordinary sentence", Lord Diplock went on to say:

""The delay" referred to in paragraph (a) must be the same delay as in paragraph (b); so it means the delay after the primary limitation period expired".

He continued:

"It is the length of this delay (in the instant case 37 days) and the reasons for it that matter under paragraph (a). Paragraph (b) refers to the extent to which the cogency of evidence likely to be adduced by either the plaintiff or the defendant, is likely to be less as a result of the delay".

14. After a close analysis of the later paragraphs of the section, Lord Diplock said at page 752B – C:

"In contrast to paragraph (c) I think it is apparent that paragraphs (e) and (f) are referring to the conduct of the plaintiff himself, as well as that of his lawyers after he had consulted them for the first time. If he has acted promptly and reasonably it is not to be counted against him, when it comes to weighing conduct, that his lawyers have been dilatory and allowed the primary limitation to expire without issuing a writ".

15. Earlier in his judgment (at page 750), Lord Diplock had pointed out that even where, if the action were not allowed to proceed, the plaintiff would have a cast-iron case against his solicitor, some prejudice, although it might be minor, would have been suffered by him. He had also pointed out that a direction under the section must always be highly prejudicial to the defendant, although:

"if, as in the instant case, the time elapsed after the expiration of the primary limitation period is very short, what the defendant loses in consequence of a direction, might be regarded as being in the nature of a windfall.." …(See at page 750C).

The conclusion of the House of Lords in Thompsons' case was that Phillips J., contrary to his view, had an unfettered discretion to make a direction under section 2D and since he had not exercised that discretion, the matter should be remitted to him for further consideration.

DISTRICT JUDGE LIPTON'S JUDGMENT

16. One obvious point of similarity between the facts of Thompsons case and those of the present case, is that in both cases the time elapsed after the expiration of the primary limitation period was very short, (37 days in the earlier case and 49 days in the present case). Both cases also contained the feature that no very obvious fault could be attributed to the plaintiff, as opposed to his solicitors. The District Judge, however, clearly did not like the Thompson decision and approached it in a somewhat cavalier fashion. He distinguished it on its facts, saying:

"The period of delay in this case is short, but one day can be enough. In Thompson, Lord Diplock allowed the extension of time where the solicitors had lost the file. That is a situation that should not have arisen, but in this case, Mr Waters, does not have that protection. He was dealing with this claim before he went away. That is the difference and here the difference is very great".

17. Every case concerning an application under section 33 of the 1980 Act must depend on its special facts, but this particular distinction between the two cases drawn by the District Judge was in my view one entirely without substance.
18. More importantly, the District Judge specifically rejected Lord Diplock's statement that "the delay" referred to in paragraphs (a) and (b) of what is now section 33 of the 1980 Act means no more than the delay after the expiration of the primary limitation period. In relation to paragraph (b), he said this:

"This is the question whether the evidence is likely to be less cogent. In an extraordinary sentence, Lord Diplock thought delay here was after the issue of proceedings. Provided the claim was notified in time, there was no difficulty in dealing with the evidence. Here we are dealing with a 7-week delay in issuing proceedings. His sentence can only make sense if you look at delay in the case as a whole. Lord Diplock's logic is somewhat difficult to follow and does not make sense. I will probably be struck down by thunder for saying that".

19. Happily, no thunderbolt followed the District Judge's judgment. Nevertheless, his bold suggestion was mistaken in law, as is shown by the decision of the House of Lords in Donovan v Gwentoys Ltd [1990] 1 WLR 472, where the correctness of Lord Diplock's construction of paragraphs (a) and (b) was specifically reaffirmed: (see at page 478G per Lord Griffiths).
20. The third and most important error into which the District Judge fell in my judgment arose from the fact that, throughout his analysis of the factors which should influence him in the exercise of his discretion, he appears to have attributed the failings of the solicitors to Mr Steeds himself. As I read his judgment, he regarded the fact that Mr Steeds had what he described as an "open and shut case" against the solicitors as a more or less conclusive reason for exercising his discretion against him. True it is that he said that he must look at the matter "in the round" and referred to what he described as "a number of periods of delay", saying (in paragraph 20)..

"There was quite a delay in starting this matter. Some criticisms can be levied. Even in May 1997 – five months after the accident – the defendant would not have been able to investigate this matter".

However, he concluded his judgment as follows:

"If I give leave for the action to proceed, what I am doing in effect us saying that if solicitors do not take great care in attending to the limitation period, they may be excused. This is against the whole principle of the CPR. An action should be issued as soon as all the facts are in the possession of the Claimant. By the middle of 1998 there was no reason why Lucas & Co. could not have issued proceedings and they did not do so.

In this case, I decline to exercise my right to allow the matter to proceed. I look at the matter in Equity. It is Mr Steeds against the insurance company. I must look at it as a whole.

There is a great duty upon claimants' solicitors to get on with it. In this case it seems to me that the Claimant has not been treated fairly. However I am going to strike this matter out".

21. Earlier in his judgment (paragraph 16) the District Judge had referred to Mr Waters' failure to acquaint himself with the relevant limitation date before he went on holiday as a "gross failure" and had described the 1980 Act as a "warning to all solicitors".
22. In my judgment the District Judge made unwarranted criticism of the solicitors' conduct insofar as he suggested that in accordance with the principles of the CPR they should have issued proceedings in mid-1998; the CPR concern the conduct of proceedings which have already been issued, but not the issue itself. Far more fundamentally, however, the District Judge in my judgment fell into error in law in treating the case as one in which the existence of Mr Steeds' cast-iron claim against the solicitors justified the District Judge in using the occasion to teach the solicitors a lesson, thereby attributing their defaults to Mr Steeds himself. The incorrectness of this approach is demonstrated not only by Thompsons case itself – see [1981] 1 WLR at page 752B-C – but also by subsequent cases which do not appear to have been cited to the District Judge.

AUTHORITIES SUBSEQUENT TO THOMPSON'S CASE

23. This court has recently considered the impact of fault on the part of the claimant's legal advisers in the context of section 33 of the 1980 Act. It did so in the case of Das v Ganju [1999] PIQR P260, where the delay was, to a large part, attributable to mistaken advice which had been received by the claimant. In assessing its effect, Sir Christopher Staughton, who gave the leading judgment, quoted a passage from the judgment of Waite L.J. in the earlier case of Whitfield v North Durham Health Authority [1995] 6 Med LR 32 at page 35 and then made these observations, with which Buxton L.J. agreed:

"If that passage means that as a matter of law anything done by the lawyers must be visited on the client, it cannot in my view be reconciled with other authority. It appears to have been a concession which the court accepted. The other authority is Thomson v Brown [1981] 1 WLR 744 and the speech of Lord Diplock at 750 and 752, which I do not set out for fear of lengthening this judgment even further. I would also return to Halford v Brookes where again it is said that it is no reproach to the plaintiff that he has received the wrong legal advice."

[Halford v Brookes is reported at [1991] 1 WLR 428]

24. The very recent decision of this court in Corbin v Penfold Metalising Co.Ltd 6^th April 2000 (unreported) requires a fairly full citation. In that case a consultant chest specialist had told the claimant's general practitioner on 2^nd March 1993 that the claimant had an industrial disease. In September 1993, having thus become aware that his medical condition might be due to an industrial injury, the claimant consulted solicitors, who eventually issued a writ on 19^th August 1996. His Honour Judge Rich Q.C. had found that for the purposes of section 14 of the 1980 Act, the relevant date of knowledge on the part of the claimant had been at or near 2^nd March 1993, so that the primary limitation period expired in about March 1996, some 5½ months before the writ was issued. The Court of Appeal agreed with this finding. The Judge, however, had gone on to refuse to exercise his discretion to extend the period under Section 33. On this aspect of the case, as did the District Judge in the present case, he laid particular emphasis on the failings on the part of the defendant solicitors. The Court of Appeal disagreed with his approach. Buxton L.J., with whose judgment Hale L.J. agreed, said this:

"The main difficulty about that approach is the emphasis that is placed upon the failings on the part of the defendant's solicitors, because in his analysis of whether the claimant had acted diligently, the Judge undoubtedly attributes – and entirely attributes – the actions of the solicitors to the Claimant himself. Unless the Claimant is, as a matter of law, bound by and bears the responsibility for that which is done by his solicitors, that attribution is plainly not right because, on the evidence, Mr Corbin did what a man in his position might be expected to so, which is to go to his solicitors, who are apparently efficient and responsible in this area of work, and left them to get on with it. Unless, as a matter of law, he is bound by the solicitors, that analysis of the Judge, as a matter of fact, is not right."

25. Buxton L.J. then referred to the observations of Sir Christopher Staughton in Das v Ganju and continued:

"Those observations of Sir Christopher Staughton were adopted unanimously by this court. Mr Tonna said, when asked about it, that each case turns on its own facts, and that we should reconsider this point in the present context: whether the Judge, in truth, was right to attribute the solicitors failings to Mr Corbin. I am not, for my part, persuaded that that is so. It seems to me that the Court in Das v Ganju was speaking more generally, and certainly saying – as Sir Christopher Staughton said in terms – there was certainly no rule of law to visit the faults of the lawyers upon the claimant, when one is looking at this particular area of the limitation jurisdiction. But even if that is not right, and even if we would be correct in adopting Mr Tonna's invitation, it seems to me that there is no reason at all in this case, and no justification, for attributing what the solicitors did to Mr Corbin, as a matter of his fault. He did not contribute to the delay in any way.

He was a passive observer of what was going on. The fact that the solicitors may or may not have acted properly and the fact that the consultants – not any of those that I have mentioned by name – may or may not have acted properly when consulted, could not possibly be said, in any realistic way, to be Mr Corbin's fault.

As I have said at the beginning of this section of the judgment, and I repeat, those faults are not to be attributed to him, unless there is a rule that he must suffer for his solicitors' faults. Das v Ganju clearly said there is no such rule. I am driven to conclude, therefore, that the Judge was wrong to attribute the failings of the solicitors, which he found to be the reason for the delay to Mr Corbin, and more generally was wrong when exercising his discretion, to describe the claimant as someone who has been less than vigilant on his own account. It seems to me that that characterisation must have rested on an assumption that he was responsible for his solicitors' faults and that was an assumption that was not correct in law."

26. Having pointed out that in the circumstances the relevant discretion held to be exercised by this court itself, Buxton L.J. expressed his ultimate conclusion as follows, in a passage which appears to be pertinent in the present case:

"Looking at the matter in the round, as Section 33 obliges us to do, the length of the relevant delay is five and one-half months. That delay is not going to cause any evidence to be any less cogent. The conduct of the plaintiff is, for the reasons that I have given, not to be weighed in the balance in the way that the Judge weighed it. Mr Corbin did act promptly and reasonably, once he was first on notice, by going to solicitors and that was the action taken by him. I also bear in mind that he may very well have a very strong claim which, in my judgment, it is right that in these circumstances he should be able to pursue".

27. Thus, as the authorities stand, so far as fault on the part of the claimant is a relevant factor in exercising the court's discretion under section 33, his solicitors' faults are not to be attributed to him personally. However, this is not to say that the existence of a claim by the claimant against his solicitors is an irrelevant factor. On the contrary, as Lord Diplock pointed out in Thompsons case [1981] 1WLR at page 752C-D..

"When weighing what degree of prejudice the plaintiff has suffered, the fact that if no direction is made under section 2D he will have a claim over against his solicitor for the full damages that he could have recovered against the defendant if the action had proceeded must be a highly relevant consideration."

28. Furthermore, "in weighing the degree of prejudice suffered by a defendant, it must always be relevant to consider when the defendant first had notification of the claim and thus the opportunity he will have to meet the claim at the trial if he is not to be permitted to rely upon his limitation defence": (Donovan v. Gwentoys Ltd. [1990] 1 WLR at page 478H per Lord Griffiths"). In that case the plaintiff, then aged 16, suffered an accident while employed at the defendant's factory, in December 1979. On 25^th April 1981 she attained her majority. On 6^th April 1984, 19 days before the limitation period expired, she consulted a solicitor who did not issue a writ until 10^th October 1984, 5½ months after such expiry. The defendants were thus faced with a very stale claim of which they had not been notified until about five years after the accident. Lord Griffiths, delivering the leading judgment, having distinguished Thompson's case on its facts, said: (at page 479A-C):

"The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim, that is a claim with which he never expected to have to deal. The defendants' insurers never suffered from that disadvantage in Thompson v Brown and thus the degree of prejudice they suffered was slight. By contrast in the present case, the defendants are faced with a truly stale claim first made upon them five years after the event. The degree of prejudice they suffer is manifestly incomparably greater than the degree of prejudice suffered by the defendants in Thompson v Brown and it would be absurd if this could not be taken into account by a judge in the exercise of his discretion."

Lord Griffiths concluded:

"I have no doubt that the balance of prejudice in this case comes down heavily in favour of the defendants. It would not be equitable to require the defendants to meet a claim which they would have the utmost difficulty in defending when the plaintiff will suffer only the slightest prejudice if she is required to pursue her remedy against her solicitors. For these reasons, I would allow this appeal".

Lord Oliver of Aylmerton, who delivered the only other full judgment, said this (at page 479-480):

"The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff's claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost."

THE JUDGMENT OF HIS HONOUR JUDGE SIMPSON

29. Judge Simpson rightly pointed out that in the exercise of this discretionary jurisdiction, he would be entitled to interfere with the District Judge's exercise of his own discretion only on the usual, well-known grounds. He regarded paragraphs (a), (b) and (e) of section 33 as the paragraphs with which the District Judge had been concerned and with which he himself was concerned. In regard to the timetable, he pointed out that the claimant himself only sought legal advice 5 months after his accident in which he had sustained significant injury and commented

"There is no affidavit or witness statement from him. It may be that he had a very good reason why he waited five months; if so I do not know what it is".

He further observed that over 11 months had passed before the respondents were given (by the letter of 12^th December 1997) any information as to the accident. He referred to, and apparently endorsed, a passage from paragraph 2 of a witness statement by the respondents' solicitor, Mr Corlis, in which it was said:

"No report was made at the time and therefore the defendant has been unable to trace any possible witnesses to the claimant's fall. This materially prejudices the defendant's ability to successfully prove contributory negligence on the part of the claimant".

30. The Judge then referred to the passage from Lord Oliver's judgment in the Donovan case cited above, and commented:

"It goes without saying that if nearly a year goes by before the claim is reported to the defendant, the defendant will be at a disadvantage when no proper explanation has been made as to why there has been inactivity for that year. So whereas the defendant could not complain of that, if these proceedings had been brought in time, they can certainly do so now when the proceedings are brought 49 days late - in other words seven weeks."

The Judge proceeded to note that it must have been plain to Mr Waters that he would have to issue proceedings, since the matter was to be contested on the issue of contributory negligence. He referred to a "two month" delay" between 4^th August 1998 and 15^th October 1998 and to a "further delay of nine months "between 13^th November 1998 and 9^th August 1999". He said that Mr Waters ought to have made better arrangements while he was on holiday and ought to have employed a locum who would not make the mistake, with the result that the primary limitation period has been missed.

31. Having rightly observed that authorities on discretion are quite often simply authorities on how a discretion is exercised on a particular set of facts, the Judge continued:

"A number of criticisms have been made of the District Judge's judgment, and it may be that some expressions and phrases used in the judgment might have been expressed more happily, but I have to ask myself the question, has he taken into account all the proper matters; is his exercise of discretion outwith the generous ambit of disagreement; is his discretion flawed in the sense that he has not taken into account matters he should have done or visa versa, or is he plainly wrong.

I have listened very carefully to the submissions made by Mr Tobin who is counsel for the claimant on this appeal. It is not possible for me to say, in my judgment, that the District Judge was wrong in the sense that I have stated, but if I was wrong in that assessment it would fall to me to exercise my discretion afresh, and I have to say that I would exercise my discretion in the same way."

32. Judge Simpson proceeded to refer to the decision in Das v Ganju and Corbin's case, which had been cited in argument, and referred in particular to the passage from Buxton L.J.'s judgment in the latter case in which he had stated that Das had established that there was no rule of law that the faults of a claimant's solicitor were to be visited on the claimant. The Judge, however, declined to regard Corbin's case as giving any support to Mr Steeds. He described the report in The Times Law Reports (which was the only report of the case that was available to him) as "unsatisfactory". The report had begun with the words "Where a claimant promptly instructed solicitors….". The Judge inferred that the claimant in that case had probably instructed other solicitors before he instructed his present solicitors, because, in his words, "I would not myself say that six months is a prompt notification". He regarded Corbin's case as no more than an authority in the way in which a discretion was exercised on the facts of the particular case and one which did not assist Mr Steeds. In his words, "I have a different set of facts and the totality of the delay, pre-issue and post-issue, does contain an element of delay on the part of the claimant himself which is unexplained. I cannot think there is anything in his criticism that would justify me in allowing this appeal. If I was wrong about that, I would exercise a discretion about that in the same way.

SHOULD JUDGE SIMPSON'S JUDGMENT STAND?

33. In the light of the criticisms of the District Judge's judgment made above, Mr Baldock for Mr Steeds was in my opinion right in submitting that it was not open in law to Judge Simpson to hold that he could not fault the District Judge's judgment. So far from this course not being open to him, it was one which was he obliged in law to take – and in consequence to exercise the discretion under section 33 himself.
34. It therefore becomes necessary to consider the Judge's conclusion that he would have exercised that discretion in the same way. Mr Umezuruike, who on behalf of the respondents succinctly said everything that could be said in support of the Judge's exercise of discretion and his stated reasons for doing so, pointed out that the appeal from the District Judge was one only by way of review and that the court in exercising its discretion was bound to have regard to all the circumstances. He did not attempt, by reference to paragraph (b) in the section, to submit that the 49 days delay after the expiry of the limitation period by itself caused the respondents prejudice, by rendering their evidence any less cogent than it would have been if the proceedings had begun in due time. However, he identified five factors in particular as justifying the exercise of the Judge's discretion against Mr Steeds, namely:

(1) the 5 months delay in instructing solicitors, a delay which had not been expressly explained;

(2) the 12 months delay in notifying the respondents of the claim, a delay which again had not been expressly explained;

(3) the asserted prejudice to the respondents resulting from these two periods of delay;

(4) the delay of the solicitors in issuing a writ 49 days after the expiry of the limitation period;

(5) Mr Steeds' cast-iron case in negligence against the solicitors.

35. As to prejudice, Mr Umezuruike stressed that this was a case in which the respondents would wish to assert contributory negligence. He suggested that, if they had been informed of the accident and the claim at an earlier date, they would have had a better opportunity to obtain witnesses, either as to the accident itself or at least as to the state of the pavement.
36. Potential prejudice to the defendant (beyond the prejudice inherent in the preservation of the claimant's claim), must always be a highly relevant factor in any case where the court is asked to exercise its discretion under section 33 of the 1980 Act. With all respect to Mr Umezuruike's argument, however, his points in regard to prejudice in my judgment have little substance on the facts of the present case. This is not a case where the accident occurred (for example) on a factory floor and there was a strong probability that witnesses could have been found if the defendants had been promptly notified of the claim. The accident in the present case occurred on a pavement in darkness on Boxing Day. Even if the respondents had been in a position to set about finding witnesses to the accident, or as to the state of the pavement only a very few weeks after the accident, the chances of finding them would surely have been minimal.
37. In endorsing the District Judge's approach to the case, in declining to recognise Corbin's case as being of any assistance to Mr Steeds and in referring critically to certain periods of delay after the solicitors had been instructed, Judge Simpson was, in my judgment, effectively following the District Judge in assuming that Mr Steeds must be treated as responsible for any faults of the solicitors. In my judgment, having regard to Corbin's case and the other authorities, Judge Simpson thus proceeded on a basis, which was mistaken in law. [I add in parenthesis that the full report of Corbin's case, which is now available, shows that there was no basis for his inference that in that case the claimant had probably instructed other solicitors before he had instructed his present solicitors]. We therefore ourselves have to re-take the decision necessitated by section 33.

THE EXERCISE OF THIS COURT'S DISCRETION

38. I have already explained that a decision under section 33 in Mr Steeds' favour would not, in my view, be likely to cause the respondents any appreciable prejudice beyond the prejudice inherent in the preservation of his cause of action. In all the circumstances, the question is whether it would be equitable to allow the action to proceed "having regard to all the circumstances of the case" and in particular to paragraph (a), (b), (e) and (f) of section 33(3), (which in the instant case seem to me the most relevant paragraphs).
39. In relation to paragraph (e), it is relevant to consider whether the claimant should be treated as having been personally at fault because of the respective periods of 5 months and 12 months delay referred to above. Contrary to what appears to have been the views of the two courts below, I am wholly unpersuaded that he should. A delay of five months in instructing solicitors by a person who has suffered a serious accident does not seem to me to be unreasonable, a view which is borne out by the approach of the court in Corbin's case. And while the further delay of seven months in notifying the respondents of the claim might have been relevant as one of the general circumstances of the case if it had made it materially more difficult for the respondents to adduce relevant evidence, I do not think it can be regarded as constituting unreasonable or dilatory conduct such as to render Mr Steeds personally blameworthy.
40. Looking at the case in the round, it is not one of a thoroughly stale claim as was the Donovan case. On the contrary, it is one where the claimant acted reasonably and with sufficient promptness and cannot be fairly subjected to personal criticism. His solicitors can be fairly criticised for their admitted negligence in failing to issue a writ until seven weeks after the expiry of the limitation period. But as the Thompson and Corbin cases show, this delay is not to be held against him personally for the purpose of the exercise of the court's discretion. For the reasons which I have explained, I am not satisfied that on the particular facts of this case, any delay on the part of Mr Steeds or the solicitors has caused the respondents any material prejudice. In this case, as in Thompson and Corbin, where the time elapsed after the expiration of the primary limitation period was so short, what the respondents would lose in consequence of a direction under section 33, might truly be regarded as being in the nature of a windfall. In my judgment any supposed injustice that might be suffered by the respondents as a result of the deprivation of that windfall would be substantially less than the injustice that Mr Steeds would suffer if, simply as a result of his solicitors' negligence, he found himself obliged to pursue the alternative claim against them, instead of his good claim against the respondents – with all the further delay and additional problems in proving the amount of damage which the alternative claim would involve.
41. In all the circumstances I consider that it would be equitable to allow this action to proceed. I would accordingly allow this appeal and direct that the provisions of section 11 of the 1980 Act shall not apply to Mr Steeds' action against the respondents.

LORD JUSTICE TUCKEY :

42. I agree.
ORDER: Appeal allowed; Provisions of Section 11 of the 1980 Act shall not apply; Claimant to pay defendants costs. Permission appeal to the House of Lords refused. (Order does not form part of approved Judgment)