England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(DISTRICT JUDGE WILSON)

		Royal Courts of Justice Strand London, WC2
		6th May 2003

1. LORD JUSTICE WALLER: This is an appeal with a slightly unhappy procedural background. It comes directly from a decision of District Judge Wilson who decided certain preliminary points on limitation in favour of the defendants on 15th July 2002. The claimant then sought to take the matter to a Circuit Judge, His Honour Judge Thompson QC, who was persuaded that he had no jurisdiction. He further questioned how the matter had come to be heard by the District Judge in the first place. That last question is not a matter for this court now. Both sides were content to have the matter decided by the District Judge. It is in those circumstances that it is his decision that comes to this court.
2. The chronology of the matter is this. The claimant was a Mr Skerratt, who suffered personal injury at the defendants' indoor go-karting track on 4th April 1997. Prior to using the track, it appears to be common ground that the claimant signed a form which the claimant viewed as a form which meant that he was riding on the track at his own risk. On 26th February 1998 a Mr Taylor also suffered an accident at the track in somewhat similar circumstances to those which befell Mr Skerratt. Although the solicitors for the defendants in a statement in this action have said otherwise, it seems that Mr Taylor may not have signed a form that suggested that he was riding at his own risk.
3. Mr Taylor instructed solicitors. He commenced proceedings in December 1999. Disclosure took place during the currency of that action which gave the information to a Mr Cole, who was the solicitor acting for Mr Taylor, that Mr Skerratt had also suffered this accident. There was a letter before action on Mr Taylor's behalf which was sent in 1999.
4. The limitation period for this case expired on 5th April.
5. Mr Taylor issued proceedings in February 2001. Mr Taylor in his proceedings was alleging that the track was unsafe and that the karts used on the track were unsafe. The major allegation being that the barriers round the track were too firm and they did not absorb the impact if the car ran into the barrier. What is more, the bumpers were also alleged not to have the required absorption in case there was any accident. The details were set out in an expert's report in the Taylor litigation, a report prepared by a Mr Fawcett.
6. A defence was served in the Taylor litigation in April and in October 2001 the Taylor case was settled. It was then on 26th November 2001 that Mr Cole, the solicitor who had been acting for Mr Taylor, as a result of the disclosure in the proceedings between Mr Taylor and the defendants telephoned Mr Skerratt and informed him that he had a potential claim against the defendants.
7. These proceedings were then issued on 15th January 2002. A defence was filed. So far as the pleadings are concerned, the primary case made by Mr Skerratt in his pleadings is to the effect that the track was unsafe. Particulars of the negligence alleged against the defendants are set out on pages 4 and 5 of the bundle. From sub-paragraph (a) through to (j), the basic allegation relates to the inability of the barriers to absorb shock and the inability of the bumpers of the karts to absorb shock. There is then an allegation about the adjustability of the seat and the pedals, because Mr Skerratt was only 5 feet 3 inches and thus was driving the kart with his legs straight, as opposed to in a flexed position. There is an allegation that no proper instruction was given to competitors, including Mr Skerratt, in relation to driving with his legs straight. It also alleged that the track was both narrow and short. Reference is made to the National Karting Association Guidelines and a failure to have conformed with those. It is further alleged that there was a failure to warn drivers against ramming, bumping or aggressive driving in accordance with good practice and as recommended in the National Karting Association Guidelines.
8. So far as the defence is concerned, the primary defence is one of limitation. No admission is made about the contract made between Mr Skerratt and the defendants, although it does appear to be common ground that some disclaimer form was signed. No admission is made as to the circumstances in which the claimant sustained injury. There are then assertions about the manner in which Mr Skerratt drove the kart, for which it is asserted the defendants had no liability. Then assertions are made as to the possible negligence of Mr Skerratt in relation to the speed at which he drove; his failure to brake; his failure to maintain a safe distance; failure to maintain control over the kart; and failure to take any proper account for his own safety.
9. The points which arise on limitation arise by reference to section 32 and section 31 of the Limitation Act 1980. In relation to both the District Judge decided in the defendants' favour. It is convenient to take the sections separately.
10. So far as section 32 is concerned, the relevant provisions provide:

"(1) Subject to sections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) ...

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

(c) ...

the period of limitation shall not begin to run until the plaintiff has discovered the ... concealment ... or could with reasonable diligence have discovered it."

11. It is also right to quote subsection (2) which provides:

"For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty."

12. What is said in the instant case is that Mr Skerratt can establish, first, that when he was asked to sign the disclaimer form the defendants were making a representation that even if they were negligent the claimant would have no cause of action; second, that the representation was being deliberately made by the defendants; third, that the truth was that, by virtue of section 2 of the UNfair Contract Terms Act 1977, the claimant would have a cause of action if the defendants had been negligent; and fourth, that the claimant relied on that representation once he had had the accident, and that it was on that basis that he did not bring the claim until he appreciated that the representation was inaccurate when Mr Cole telephoned him on the date that I have already given.
13. The approach to section 32 and what the claimant must establish if the claimant is to take advantage of that section has been dealt with in a number of authorities. What the claimant must establish can perhaps be most conveniently obtained from a passage in the speech of Lord Scott of Foscote in Cave v Robinson Jarvis & Rolf [2002] 2 WLR 1107, the passage being at paragraph 60 of his speech. It is right to say that Lord Slynn, Lord Mackay and Lord Hobhouse, and indeed as I understand it Lord Millett, all agreed with the speech of Lord Scott. He said:

"I find it easy to accept that Mr Doctor's submissions as to the meaning of section 32(1)(b) are correct. I agree that deliberate concealment for section 32(1)(b) purposes may be brought about by an act or an omission and that, in either case, the result of the act or omission, ie, the concealment, must be an intended result. But I do not agree that that renders subsection (2) otiose. A claimant who proposes to invoke section 32(1)(b) in order to defeat a Limitation Act defence must prove the facts necessary to bring the case within the paragraph. He can do so if he can show that some fact relevant to his right of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information, but, in either case, with the intention of concealing the fact or facts in question. In many cases the requisite proof of intention might be quite difficult to prove. The standard of proof would be the usual balance of probabilities standard and inferences could of course be drawn from suitable primary facts but, none the less, proof of intention, particularly where an omission rather than a positive act is relied on, is often very difficult. Subsection (2), however, provides an alternative route. The claimant need not concentrate on the allegedly concealed facts but can instead concentrate on the commission of the breach of duty. If the claimant can show that the defendant knew he was committing a breach of duty, or intended to commit the breach of duty - I can discern no difference between the two formulations; each would constitute, in my opinion, a deliberate commission of the breach - then, if the circumstances are such that the claimant is unlikely to discover for some time that the breach of duty has been committed, the facts involved in the breach are taken to have been deliberately concealed for subsection (1)(b) purposes. I do not agree with Mr Doctor that the subsection, thus construed, adds nothing. It provides an alternative, and in some cases what may well be an easier, means of establishing the facts necessary to bring the case within section 32(1)(b)."

14. There are, as I see it, innumerable difficulties with the argument that the claimant, through Mr Clifford Darton, has sought to pursue in this court.
15. First, as it seem to me it is very difficult, if not impossible, to spell out any representation of the kind alleged as at the time when this disclaimer was signed. The defendants asked the claimant to sign a form. It is worth going to the evidence in relation to that. In a lengthy statement which was before the District Judge, the claimant said:

"19. When we walked onto the track, we were not asked for any ID, we just had to sign a disclaimer, which I did. I cannot remember what the actual clauses said but I know that it was a basic disclaimer, stating that we entered onto the track at our own risk. I do not have a copy of this, it was just a photocopied piece of paper."

16. Then when he came to deal with his reliance on the signing of the disclaimer he said this:

"101. I never considered the possibility of making a claim with regard to the accident. I thought as I had signed the disclaimer document mentioned at paragraph 19 of this statement I could not bring a claim and that I had accepted the risks associated with this kind of activity.

102. I was not aware that I had a claim until I received a telephone call from Nigel Cole of Messrs Gray Purdue on the 26th November 2001."

17. He says at the last sentence of that paragraph:

"He advised me that he thought I had a good cause of action. I was surprised at this as I thought that I did not have a claim as I signed the disclaimer."

18. So there is the position. The defendants asked the claimant to sign this disclaimer. The claimant, Mr Skerratt, agreed. The defendants are not lawyers and, as I see it, there is no basis for suggesting that anybody on the defendants' side was either expressly or by implication making any representation that the claimant had no cause of action.
19. Secondly, in any event, there is in fact no assertion, perhaps not surprisingly, that the defendants deliberately and in knowledge that it was untrue were making a representation that there was no cause of action.
20. Thirdly, and perhaps of most importance, all that can be relied on are matters which took place before Mr Skerratt ever had an accident and before he had any cause of action. There is nothing to show that the defendants either made any representation post-accident or conducted themselves in any way as to show that they were continuing to make some form of representation that they had made prior to the accident. In my view, it is difficult to conceive of a case of concealment unless that concealment takes place either at the very time that the cause of action is accruing, or unless it takes place after the cause of action was accrued, i.e. unless the defendant is taking some steps to deliberately conceal a fact relevant to the cause of action.
21. Fourthly, I, for my part, have some doubt whether the existence or otherwise of a cause of action is a fact relevant to the claimant's right of action on any view. Johnson v Chief Constable of Surrey, the transcript of which is with our papers dated 19th October 1992, makes clear that a fairly narrow construction is to be placed on section 32(1)(b). The court is strictly concerned with facts relevant to the cause of action. It is not concerned, for example, with the suppression of evidence that might be relevant to the proof of the cause of action. Mr Clifford Darton submits that this disclaimer was relevant to the question whether there was a breach of duty at all. Thus he submits that it falls outside the decision of Johnson v Chief Constable of Surrey. I have to say I have serious doubts about that, but it is unnecessary to finally decide that aspect having regard to the other points that I have made. As it seems to me, the District Judge, who dealt with this aspect as the first point in his judgment, was clearly right that there was no concealment within section 32.
22. That brings me to section 33. The relevant parts of section 33 are these:

"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which-

(a) the provisions of section 11 or 11A 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."

23. Then:

"(3) 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 is adduced or likely to be adduced by the plaintiff or the defendant or is likely to be less cogent than if the action had been brought within the time limit 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."

24. So one notes at the outset how this is an equitable jurisdiction. There is a balancing exercise to be performed. One notes, furthermore, that it is all the circumstances of the case that the court should have regard to and that paragraphs (a) to (f) are merely particulars of certain factors. There is no dispute that the District Judge was right when he said that, so far as section 33 is concerned, the burden is on the claimant who seeks a direction under that section. As he put it, the burden of persuasion is a heavy one. There is, furthermore, no dispute that the District Judge, when ruling on section 33, was exercising a discretion and thus, unless it can be shown he misdirected himself or was plainly wrong, this court will not interfere.
25. The nub of the argument put forward by Mr Clifford Darton in this court comes to this. He says that when one has regard to section 33(3)(a), what the court is concerned with is whether there is, subjectively, a reason which the claimant in this case had for delay. He says that at that stage of the argument any criticism there might be of the claimant for not obtaining the advice of lawyers or matters of that sort is not to be taken into account. He says that the District Judge wrongfully, when considering sub-paragraph (a), did take into account the criticism that the District Judge had made of the claimant that he should have obtained advice from lawyers earlier. He then adds to that that the evidence that there could not be a fair trial, i.e. factor (b) in relation to the cogency of the evidence, was such that the District Judge should have found that a fair trial was possible. He should have therefore been of the view that both factors (a) and (b) of the subsection, when looked at, were to the claimant's advantage and not to the defendants'.
26. There is no doubt that the question to be answered under section 33(3)(a) is a subjective question. Mr Clifford Darton took us to the authority of Coad v Cornwall and Isles of Scilly Health Authority [1997] 1 WLR 189. That is a decision of the Court of Appeal. The main judgment was given by Ward LJ. It was an appeal from Judge Anthony Thompson QC sitting as a judge of the Queen's Bench Division. This was a case in which the judge had accepted the evidence of a nurse who had suffered a back injury in the course of her employment. That had occurred in 1983. She left the employment of the health authority in either 1990 or 1991. He accepted her evidence to the effect that she did not know that she had a right of action against her employers until she left in 1991.
27. That is not a case where the lady had consulted lawyers. Nor is it a case, as it seems, where consideration was given to the question whether she should have consulted lawyers. The explanation that she gave for not commencing proceedings was accepted as entirely genuine by the judge. Ward LJ pointed to the difference in language between section 33(3)(a) and section 33(3)(e) and held that the test under (a) was a subjective one and that the judge was entitled to take the view that he did that the nurse was entirely genuine in her understanding that she had no cause of action, and then also that the judge was right in relation to the view he formed about the ability to have a fair trial at that stage.
28. There are two comments to make on the judgment. First, one notes the reluctance of Judge and Rose LJJ. They had some reservations about the decision of the judge, but felt that this was an exercise of his discretion with which they should not interfere. Secondly, one notes that Ward LJ accepted that even where the claimant's explanation is an honest one, the court will go on and may go on to consider whether the reason was a good or bad one, and whether the claimant was culpable or not. That appears from his reference to the judgment of Russell LJ in Halford v Brooks [1991] 1 WLR 428, referred to by Ward LJ on page 195.
29. What then is the effect of section 33(3)(a) being subjective? Mr Clifford Darton appeared to be suggesting that if the court concluded that the claimant was honest in saying he did not appreciate that he had a claim, that is in effect the end of the matter. He quite rightly pointed out that the District Judge clearly did accept that this claimant, Mr Skerratt, was honestly of the view he did not have a claim. That appears from page 126 of the bundle when the District Judge was dealing with section 33(3)(e). It is now common ground he should not have been dealing with (e) at all -- nevertheless, he did -- and it is clear that in that context the District Judge was taking the view that the claimant was not aware that he had a cause of action until the telephone call from Mr Cole. So the argument of Mr Clifford Darton is that once that decision is taken, that is the end of the matter so far as there being a reason for delay when considering section 33(3)(a). I have to say for my part I am a little concerned as to whether that is itself in fact right. It would strike me that even in looking at section 33(3)(a) itself and the language, which I repeat, which is:

"the length of, and the reasons for, the delay on the part of the plaintiff"

30. that when looking at the reasons for the delay, if a court were of the view that the claimant should have taken legal advice, the failure to take legal advice could be said to be one of the reasons for the delay. But this is not the occasion to explore whether that is the proper construction of section 33(3)(a), and certainly it is strongly arguable that it is not in the light of Ward LJ's judgment in Coad.
31. But Mr Clifford Darton was really compelled to accept the following propositions. First, on any view, as Halford v Brooks demonstrates, even if a view is honest, if there is blame to be attached to the claimant for being in the position that he is, that must be a relevant circumstance for the court to take into consideration in considering whether to extend time under section 33. Having regard to the fact that a court should have regard to all the circumstances of the case, the court would be bound to take them in at that stage. Furthermore, section 33(3)(f) refers to a factor which relates to the steps (if any) taken by the claimant to obtain legal or other expert advice and the nature of any such advice he may have received. Once again, if one of the reasons for delay were a failure to take legal advice, then section 33(3)(f) would bring that matter into consideration at that stage.
32. So far as legal advice in this case is concerned, the District Judge held, when considering section 32, that the claimant could and indeed should, with reasonable diligence, have discovered the existence of his cause of action by consulting lawyers. That was a decision which, in my view, he was entitled to come to and he was entitled to reintroduce that aspect of his decision when looking at section 33.
33. If I then turn to the District Judge's judgment, the criticism that is made of that judgment relates to a passage at page 122 of the bundle. He correctly directs himself when looking at section 33(3)(a) that the test is a subjective one, and then he says:

"Well, in the light of the findings that I have made in respect of the preliminary issue under Section 32, and the Claimant's particular awareness and concerns about safety, which are clearly highlighted in his statement, I find that this is not a case where it can be so viewed subjectively that there was a good reason for the delay here. If anything, this is a Claimant who should have had heightened concerns, not only because of his previous experience of go-karting, which he set against what he saw at the Defendants' track, but also the fact, too, looking at the matter subjectively, that the Claimant is clearly an articulate, intelligent man - he is a heating and refrigeration engineer. So, on a subjective basis I do not regard the length, or, indeed, the reasons for the delay on the part of the Claimant as being good."

34. Mr Clifford Darton criticises that passage on the basis that the District Judge should have considered section 33(3)(a) subjectively by reference to any view honestly held, and should have concluded that the reason was that the claimant was not aware that he had a claim. He should then have gone on to consider separately whether there was any culpability for the claimant being of that view.
35. The District Judge did look at section 33(3)(f) separately -- that appears at page 126 of the bundle -- and he came to the view, as he was bound to do, that the claimant clearly failed that test, not having obtained legal advice.
36. Some criticism is also made of the District Judge in concluding that the claimant was an articulate and intelligent man. That is not in my view a fair criticism. The claimant described in his statement how he was self-employed and worked as a refrigeration and air conditioning installation engineer and was contracted by larger companies to install air conditioning equipment. He states that he goes skiing each year. Every Christmas he goes away with the family. Mr Clifford Darton sought to persuade us that he was no more than a plumber in reality. I have to say I am not sure why that excludes him from being an articulate and intelligent man. But be that as it may, the description of his self-employment and the work seems to me allow the District Judge to conclude as he did.
37. The real question is whether the District Judge has misdirected himself by concluding as he did that the claimant in effect was culpable when looking at section 33(3)(a). As it seems to me, this is not the occasion to explore finally whether the culpability aspect can be explored when looking at section 33(3)(a) alone. But on any view, as it seems to me, all that can be said in this case is that the District Judge may have been putting things into the wrong slot. He clearly was entitled to look at culpability in looking at the exercise of his discretion over all. The feature of this case on which he alighted was that with due diligence this claimant should have consulted lawyers. He should not, on any view, have relied on either his own view as to the application of the disclaimer form, and least of all on anything which had happened when he signed that disclaimer form before he went go-karting. Even if some criticism can be made of the District Judge for the way he has approached the matter, this would seem to me to be the sort of error where the court would be very slow in interfering with the exercise of his discretion.
38. I should perhaps add that I, for my part, even if I were interfering with the District Judge, would form the same view as the District Judge on this aspect of the case; that even if, looking at the matter subjectively, the claimant had a reason why he did not bring these proceedings until five years after the accident, when one has regard to all the circumstances, and in particular whether he should have obtained advice, this would be a case in which one would say that he should have obtained advice at a very much earlier stage, having regard to the accident that he suffered.
39. That brings me to section 33(3)(b). The criticism of the District Judge's approach to section 33(3)(b) really comes down to this. Mr Clifford Darton suggests that the claimant's case will in reality be a case about the ability of the barriers and the karts to absorb the impact. So he says that this is not really a case where there would ever have been oral evidence of any real materiality. This is a case which would be likely to be fought on the reports of experts. When asked how an expert would prepare a report now, five years after the event, on the barriers and karts, he said there would be no difficulty with that because there was an expert's report of Mr Fawcett in relation to the Taylor litigation, and that would form the basis of any expert evidence that Mr Skerratt would call. Then when put to him how could it be said precisely where this accident happened and the particular part of the barrier which may have been hit by Mr Skerratt, his answer to that was the claimant's case was going to be that all the barriers were unsafe, all the bumpers of the karts were unsafe and that therefore, wherever this accident occurred, it would lead to liability being established against the defendants on Mr Skerratt's behalf.
40. He was critical of the evidence put in by the defendants. He took us to the statement of Mr Gareth Williams, and particularly paragraphs 7, 8 and 9 where Mr Williams refers to the fact that a new Operations Manager has been appointed since the accidents of Mr Taylor and Mr Skerratt and where it is said that:

"as a result the current staff will be unable to give evidence as to operations and procedures at the Go Karting Track in April 1997."

41. Then paragraph 8 says:

"following investigations which were made after the intention to make a claim was notified, it is now evident that because of the lapse of time, there are no witnesses to the incident."

42. Then, finally, in paragraph 9:

"it is my belief that the Defendants will be severely prejudiced in any attempt to collate evidence for the purposes of a full trial on the liability of the Defendants."

43. The District Judge in his judgment clearly picked up the weaknesses in the evidence of Mr Williams. He refers to the fact that he questioned counsel at some length as to whether it was being said that there were no witnesses. He was not clear precisely what the defendants' position was on that particular issue. What it came to, so far as the District Judge was concerned, was that this being five years after the event, the defendants were going to be in difficulty obtaining evidence. He said:

"That is clear from the inability of counsel for the Defendants to be able to address the Court specifically on what evidence they have available to meet this particular claim."

44. He referred to a particular authority where, although in the circumstances of that case the claimant had a claim against solicitors and thus could not be prejudiced, a claim made five years after the accident was held to be one where the balance of prejudice came down in favour of the defendant. That case was Donovan v Gwentoys Ltd [1990] 1 All ER 1018.
45. Each case depends on its own facts. It may often be difficult for a defendant to identify with precision as to why they are prejudiced when a claim is brought five years after the event. But one of the difficulties here is that there is very little detail, by reference to any contemporary documents in any event, as to how this accident happened; where it happened; how many people were driving on the track at the time; who was present for the defendants. All these aspects lead one to conclude that for the defendants to have to face this case five years after the accident happened will be difficult for them. It really is not sufficient for a claimant to say, "My case is going to be run by reference to a particular expert's report. I do not require live evidence of witnesses to say how the accident happened. Indeed, I can say how it happened and that is enough." The position, as I would see it, is that the District Judge does not overemphasise this side of the picture so far as the defendants are concerned. He simply recognises that there will be some difficulty five years post-accident. It is in the context of that finding that he concludes that the claimant has not discharged what he described as the heavy burden of proof, as indicated. Even if he can be criticised a little for his approach to section 33(3)(a), I do not think he can be criticised in relation to his approach to section 33(3)(b).
46. As it seems to me the criticism made of his approach to section 33(3)(a) comes to very little, having regard to the fact that at some stage he must be entitled to have regard to all the circumstances of the case, including the fact that, with due diligence, this claimant should have consulted lawyers. That, in my judgment, is really the nub of this case. If there were any possibility that this claimant had been misled by these defendants as to whether or not there was any cause of action or in relation to any facts that might have given rise to the cause of action, that would place the matter in a totally different light. But in my view there is no arguable case that they have misled the claimant in any way.
47. I would say in addition to that which was said by the District Judge, that this is one of those cases where the defendants were entitled, five years after this accident, to consider that their books were closed. That is one of the factors so far as the Limitation Act is concerned.
48. In my view the District Judge's decision was entirely right and I would dismiss the appeal.
49. MR JUSTICE LINDSAY: I agree and add only a few words on the subject of possible prejudice to the defendants.
50. The particulars of claim include a claim that the claimant and other competitors were not given adequate instruction and that the defendants caused or permitted an excessive number of karts to race on the track at any one time. Mr Skerratt then put in a witness statement of some 13 pages. A number of the allegations that are there made relate to matters which any amount of knowledge from the Taylor case would not necessarily help to resolve, were this case to go to trial. For example, in paragraph 11 he says that he arrived a little late at the briefing and was not filled in on information which he had missed. In paragraph 14 he says that, having listened to the briefing, he noticed that nothing had been mentioned regarding the possible risk of injury. In paragraph 17 he says that the marshals did not demonstrate to the group how to drive the kart once they were on the track. In paragraph 98 he says that he should have been provided with specialised equipment, such as leg extenders or something similar, not two pieces of makeshift foam. I dare say there are lots of other allegations which are such that they are individual to this particular case and in which knowledge of the Taylor case will not greatly assist.
51. It does thus seem to me that this is a case in which allegations are made which will need oral evidence, or would have needed oral evidence, and that, so long after the material events, the difficulties in collecting the oral evidence are likely to be such that these defendants would indeed be prejudiced; the learned District Judge so concluded.
52. Thus, for my part, I too, like my Lord, would say that were the discretion to have been improperly exercised below and were the case therefore such that we have now to exercise it, I would, like my Lord, have come to the same conclusion that the District Judge came to.
ORDER: Appeal dismissed with costs, to be the subject of a detailed assessment if not agreed; interim payment of costs on account in the sum of £4,000. (Order not part of approved judgment)