England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT MANCHESTER
HHJ Armitage QC
3YS57557

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/12/2017

Sir Terence Etherton MR :

1. This is an appeal from the order made on 15 July 2015 by His Honour Judge Armitage QC in the county court at Manchester on a preliminary issue. The order declared that the claim for the personal injuries identified in the amended Particulars of Claim had been brought within three years after the claimant's date of knowledge for the purposes of sections 11 and 14 of the Limitation Act 1980 ("LA 1980") and is not barred.
2. In the proceedings the respondent (who I shall refer to as "the claimant"), a former police officer in the Greater Manchester Police, claims damages from the appellant (who I shall refer to as "the defendant"), the Chief Constable of Greater Manchester Police. In very broad terms, the essence of the claim is that, due to the negligence and breaches of regulations by those for whom the defendant is vicariously liable, the claimant became addicted to heroin and has suffered consequential psychiatric and other harm due to his training for, and execution of, undercover police activity posing as a drug user to make test purchases.
3. It is now conceded by the claimant that the Judge was wrong to find that the proceedings were commenced within three years after the claimant's date of knowledge for the purposes of LA 1980 ss. 11 and 14. The claimant continues to oppose the appeal, however, on the ground that the Judge was entitled to conclude, in the alternative, as he did, that he should exercise his discretion under LA 1980 s.33 to disapply the time limit in section 11.

The statutory provisions

4. LA ss. 11, 14 and 33, so far as relevant, are set out in the appendix to this judgment.

Report of Dr Brendan T. Monteiro

5. The trigger, or one of the triggers, for the commencement of the proceedings was a report on the claimant prepared by Dr Brendan T Monteiro, a consultant psychiatrist, dated 30 September 2013. He had examined the claimant on 30 August 2013 and 20 September 2013. In the report Dr Monteiro said the following, among other things.

"12.3 Mr Carroll describes symptoms and features of Harmful Use of Opioids as described in F11.1 of ICD-10 … The Heroin Addiction has been present for a number of years and according to his account, commenced after he was exposed to Heroin, during a Police training day at Sedgley Park Police Training Centre in approximately 2008/2009.

12.3.1 The important issue to be recognised by the Court is that Mr Carroll was placed in a vulnerable position of having to adopt the persona and role of a drug user/dealer to fulfil his job requirements as an undercover Police Officer. I have not seen any information to show that he was screened for this role prior to his appointment, to consider whether he had the psychological and personality attributes to fulfil the role, without suffering psychological and personality problems. Gradually as his career as an undercover Police Officer unfolded, he became more embedded and entrenched into the drug sub-culture, both in an official role as 'Lee Taylor', though he also began to abuse this role because of his need to obtain Heroin and often assumed the identity of 'Lee Taylor' to procure Heroin for himself, when he was not on duty. The process of working as an undercover officer and its requirements, have proved stressful for Mr Carroll.

…

12.6 Causation The account Mr Carroll and his wife give shows that the main cause for his Heroin misuse is related to his exposure to the substance and situational factors related to performing the role of 'Lee Taylor', a Heroin User/Dealer as an undercover Police Officer. This issue has been described at length in the body of this report.

12.6.1 The causation of the Depressive Episode is multi-factorial and the following issues need to be taken into consideration.

Mr Carroll found himself in a very difficult predicament; he stated that he did not receive help or support from the Police Force. He was frequently placed in a situation of risk and danger, being an undercover Police Officer and having to act as a Drug User/Dealer ('Lee Taylor'). He claims that he frequently took on the persona of 'Lee Taylor' in order to successfully fulfil his responsibilities. He had been commended for his actions as an undercover Officer, though he was not appreciated by [the undercover unit] and in particular, a Sergeant who was impatient and wanted immediate results (6.9). He felt undermined and humiliated, which led to poor self-esteem, lowering of self-confidence and loss of self-belief and self-worth. He was also criticised by seniors at Oldham Police Station ... His ability to function within the Police Force was seriously compromised; he is facing criminal charges in the Crown Court and is convinced that he will not be able to return to the Police Force, whatever the outcome of the Court case … [H]e is concerned about family finances and has repeated suicidal thoughts; he believes that if he acts on these thoughts, it will resolve the financial matters and his family will receive an Insurance pay out after his death.

The repeated use of Heroin and Opiates is likely to have contributed to Depressive symptoms and episodes. While in the short-term he gets a "buzz" out of the use of the substance, in the longer term he describes lethargy, lack of interest, lack of motivation and drive, anhedonia and a complete feeling of detachment from his family (10.4).

…

There is no information to show that Mr Carroll had personality vulnerabilities to developing episodes of Depression, prior to 2008. However, the interaction between his need to bring out negative aspects of his personality to function as a successful undercover Police Officer, could have contributed to episodes of Depression."

The proceedings

6. The claim form was issued on 4 November 2013. In broad terms, the claim is that the defendant is liable in damages for the injury, loss and damage suffered by the claimant as a result of the negligence and breach of the following regulations by those for whom the defendant (which expression I use to include his predecessors in the same role) was vicariously liable: The Management of Health and Welfare Regulations 1999, The Workplace (Health Safety and Welfare) Regulations 1992, The Control of Substances Hazardous to Health Regulations 2002 and The Personal Protective Equipment Regulations 1992 (together "the regulations"). The primary pleaded injury was addiction to heroin, as a consequence of which the claimant suffered from the symptoms of the opioid use and depression.
7. So far as relevant to this appeal, the alleged circumstances giving rise to that liability set out in the amended Particulars of Claim dated 25 March 2015 are as follows.
8. At about the end of 2007 or the beginning of 2008 the defendant established a new team to carry out undercover drug investigations. The roles of police officers seconded to the new unit included working undercover and posing as a drug user to make test purchases. The claimant joined the undercover unit in about spring 2008. In about February 2009 he was instructed to pose as a drug user on the Wythenshawe Estate ("the Estate") so as to identify drug dealers on the Estate and make test purchases of drugs from them. During the course of his undercover work on the Estate, the claimant adopted the identity of Lee Taylor. From time to time when acting as Lee Taylor the claimant had to "kite" heroin and cocaine (that is to say, to place the bag of heroin or cocaine which he had purchased in his mouth when transporting it). He felt strange and unwell after doing so. He believes that ingesting small quantities of drugs whilst kiting and being exposed to drugs smoked in his presence by users made him particularly susceptible to later drug addiction.
9. On 6 May 2009 the claimant was instructed to attend a training day at Sedgely Hall. The door and windows of the room, in which the training session took place, were closed. A large block of heroin was handed around the room. The claimant and other participants handled and were encouraged to smell it. As a result, the claimant's hands became smeared with heroin dust which he wiped on his trousers. The claimant and the other participants were also each given a piece of aluminium foil on which a quantity of heroin was placed, and they were then encouraged to use a cigarette lighter on the underside of the foil and to run the lighter underneath the line of heroin powder, causing the heroin to burn and give off a vapour. As a result of the exercise, the claimant inhaled the heroin vapour from the quantity which he had burned, and the heroin vapour which was in the atmosphere in the room generally as a result of other officers performing the same exercise.
10. Following the training day, the claimant started to purchase and take heroin and became a heroin addict.
11. The claimant left the undercover unit and returned to normal duties at about the beginning of November 2009. He was not the subject of any detailed de-briefing process nor was he offered counselling and support after the training day at Sedgley Park, on completing his role as undercover officer in the Estate, or on leaving the undercover unit.
12. From September 2009 until January 2012 the claimant sought help with his drug addiction from Lifeline Kirklees ("Lifeline"), a local authority project aimed at supporting and assisting those with drug addiction, but he continued to be addicted to heroin and to take it regularly.
13. In about February 2012 the claimant was diagnosed as suffering from anxiety and depression.
14. In July 2012 the claimant was suspended from duty when the defendant investigated a number of allegations against him.
15. On 11 November 2013 the claimant entered pleas of guilty to offences of theft and misconduct in public office. There was a written basis of plea, which stated that, while he was dependent on heroin, he swapped his baton and his CS gas for drugs; and also while on duty he absented himself from his work when he went to his co-defendant's house in an attempt to secure heroin.
16. He was sentenced to a total of 14 months imprisonment. As a result, he has been dismissed from the police force.
17. There are numerous particulars of negligence and breaches of the regulations. They may be briefly summarised as follows: failing to undertake any or any adequate assessment of the risk to the claimant's health from "kiting" drugs while working undercover; increasing the claimant's susceptibility to drug addiction by reason of the kiting of drugs and exposure to users smoking drugs; exposing the claimant to heroin at Sedgley Park by asking him to handle the large block of heroin and exposing the claimant to heroin vapour at Sedgley Park by asking him to burn heroin on the aluminium foil, in both cases without making a suitable and sufficient assessment of the risks created by so doing and the steps that needed to be taken to meet the requirements of the regulations; failing to ensure that the claimant's exposure to substances hazardous to health was adequately controlled; failing to implement any preventative or protective measures to protect the claimant from suffering injury to health; failing to take any steps to monitor the claimant's health after the demonstration at Sedgley Park so as to discover whether he had been affected by exposure to heroin and heroin vapour; failing to ensure that the claimant was provided with adequate personal protective equipment; failing to maintain the workplace at Sedgley Hall in an efficient state and in efficient working order and ventilated by a sufficient quantity of fresh air; failing to implement any or any adequate system to debrief the claimant and to provide counselling to the claimant after the demonstration at Sedgley Park, and after he had completed his undercover work on the Estate, and when he left the undercover unit; and failing to provide a safe system of work.
18. It is alleged that the negligence and the breaches of the regulations caused the claimant to become addicted to heroin or alternatively made a material contribution to his becoming a heroin addict, but for which he would not have been convicted of the offences which led to his imprisonment and his dismissal from the police force. It is alleged that the addiction caused the claimant to suffer from moderate to severe depression, with a fluctuating mood state with sleep disturbance, poor appetite, loss of weight and loss of libido together with anhedonia, loss of motivation, suicidal ideation and a sense of hopelessness; caused the claimant to suffer from symptoms and features of Harmful Use of Opioids as described in F11.1 of ICD-10; and made the claimant less able to deal with the death of his brother-in-law and his daughter's boyfriend; further particulars being set out in the report from Dr Monteiro.
19. There is an amended Defence, in which all the allegations of negligence, breach of statutory duty and breaches of the regulations are denied. There is also a claim of contributory negligence. It is alleged that, on the claimant's own case, the limitation period started on or close to 6 May 2009 and expired on or close to 6 May 2012 and the claim, which was not issued until 4 November 2013, is therefore outside the three year limitation period applicable under LA 1980 ss. 11 and 14.
20. By an order dated 13 March 2015 DDJ Carter ordered the trial of a preliminary issue as to whether the claim is statute barred, including whether there should be a discretionary exclusion of the time limit under LA 1980 s.33.
21. The trial of the preliminary issue took place before HH Judge Armitage QC in July 2015. The claimant acted for himself at that hearing. The defendant was represented by his counsel.
22. There were witness statements by the solicitor having the conduct of the proceedings on behalf of the defendant, by the claimant and by the claimant's solicitor. There was also in evidence Dr Monteiro's report and various documents which were the subject of disclosure, including medical records. The claimant gave oral evidence and was cross-examined.

The judgment

23. The Judge delivered his judgment on 15 July 2015.
24. The Judge said (at [7]) that the injuries, for which the claimant claims damages, occurred in 2008 or 2009, and that the claimant's causes of action in respect of those injuries accrued at or about that time.
25. The Judge accepted (at [8]) the contention of counsel for the defendant that the threshold under LA 1980 s.14(2) (significant injury) is relatively low, and that there is good authority for the proposition that a person who was at least on enquiry as to whether they have been injured can reasonably be expected to be sufficiently inquisitive to make reasonable enquiries in order to discover whether their suspicions are borne out by evidence.
26. The Judge said (at [9]) that at the relevant time the claimant was "generally aware of the unwanted effects of heroin and cocaine". He was aware that he had been exposed to heroin smoke in the course of training in May or June 2009. He was aware that thereafter he became addicted to heroin supplies, which he appears to have acquired outside the course of his employment.
27. The Judge said (at [10]) that the claimant was clearly aware that he had been engaging in the misuse of hard drugs knowingly for a significant period before he had been psychologically affected, which is why it is important to understand that his claim in respect of personal injury is founded on the two diagnoses by reference to ICD-10 made by Dr Monteiro.
28. The Judge commented (at [11] ff) on the notes of the claimant's GP, beginning with notes made on 22 June 2009. The Judge observed that the claimant did not inform his GP of his use of heroin or cocaine. The Judge said (at [12]) that the GP's notes revealed that by 29 June 2009 the claimant had made a connection between his ingesting of heroin smoke in the course of his employment in May 2009 and his private drug consumption.
29. The Judge referred to various other entries in the GP notes, including one on 16 November 2011 referring to the claimant's weight loss, low morale and stress.
30. The Judge said (at [16]) that it was not, however, until 16 February 2012 that any diagnosis of the claimant's complaints about his health was made by a GP. On that date the doctor noted the problem presented by the claimant as "depressive disorder NEC (first)". Up until and including that date, and indeed beyond, the doctor was not able to relate the health issues to the claimant's misuse of hard drugs because the GP was not told about the claimant's drug use.
31. The Judge said (at [18]) that the GP records support the diagnosis of a depressive episode since September 2009. That is not noted as a diagnosis in the GP's notes (at that time). The Judge said that the claimant would have been perfectly capable of working out for himself that what he was doing might have been making him feel ill. However, beyond that, he could not know that he was suffering from a recognised psychological condition or psychological conditions without medical assistance.
32. The Judge said (at [19]) that the claimant, unlike others, was aware that he was misusing strong drugs unlawfully and regarded himself as being addicted. He said that it is not the addiction as such, which is alleged to be the primary injury in this case: it is the consequence of it which is the primarily diagnosed medical injury. The claimant deliberately failed to tell his GP about his drug misuse and thus deprived the GP of what was probably a major diagnostic tool. The GP did not diagnose depressive disorder until an examination by the GP on 16 February 2012. That appears to have been a diagnosis made, even then, without a specific history of drug abuse. While the claimant was seeking expert medical advice from his GP about his medical condition, what he was not doing was seeking professional medical advice about the connection between his condition, whatever it was, and his exposure to hard drugs, however it had been initiated. There is an indication quite early on that he had made or thought he might have made a connection between the events at the training course in May 2009 and his interest in heroin. The question, the Judge said, which usually does not arise in employer's liability cases is: was it unreasonable for the claimant to seek advice, a diagnosis and treatment on incomplete information? The GP was the right professional to consult for the purposes of the Act.
33. The Judge concluded (at [20]) that in the particular circumstances of the case the claimant had not acted unreasonably. He said as follows:

"20. The curious and, it seems to me, difficult situation [in] which Mr Carroll found himself was that in order to obtain relevant professional advice he had to admit what he was doing, which was a course of unlawful conduct for anybody and a course of unlawful conduct which unless his employers were extremely sympathetic to him, would be likely to have a catastrophic result so far as his employment was concerned. Indeed eventually it did have such a result, as I understand it. It is for that reason that it seems to me that although he deliberately misled his doctor, he was seeking treatment, seeking advice, but at that stage not seeking advice which would have led him to receive a professional's view about what his exposure had meant and could lead to, and therefore its attribution to his employment. In my judgment, without serious fault, that is to say without acting unreasonably in his particular circumstances, he did not have the relevant knowledge until well within the three year period before he commenced his proceedings. I am clear about that in relation to Dr Monteiro's diagnosis … In relation to the moderate to severe depressive episode … I am satisfied that he did not have and did not act unreasonably in not obtaining that advice until at least the GP's diagnosis in 2012."

34. Although, in view of his decision that the proceedings were commenced within the limitation period, he did not need to do so, the Judge went on to consider how he would have exercised his discretion under LA 1980 s.33. He said (at [22]) that he would deal with that issue "more superficially than might otherwise have been the case".
35. The Judge looked at each of the particular factors specified in section 33(3), to which the court is required to have regard. Without my aligning them (as did the Judge) to each of those particular factors, his observations can be summarised as follows. Even on the defendant's analysis of this case, there had been a delay of only something of the order of 12 months or so. Further, it could be argued on behalf of the claimant that much of the delay had occurred because of who he was, and the likely consequences of revealing what he was doing. The Judge accepted that recollections would be "less crisp" than they would have been had the action been started in 2009, but he considered that the loss of cogency would not hit the defendant harder than the claimant. The Judge said that the conduct of the defendant after the cause of action arose was not a relevant consideration in the present case and nothing turned on it. He said that there had been very little delay, so far as the claimant was concerned, once the claimant knew whether or not the act or omission of the defendant, to which the injuries were attributable, might be capable of giving rise to an action for damages. The claimant did take steps to obtain medical advice. The GP was not to blame for the fact that the claimant apparently deliberately ("and many might say at that time for good reason") did not tell the GP all that the GP needed to know. Incomplete information led to incomplete advice. The Judge said (at [24]) that "this is a case where the claimant can argue that it was reasonable not to be fully frank when seeking medical advice."
36. The Judge concluded (at [25]) that, had it been necessary to decide the issue under LA 1980 s.33, he would have concluded that, despite some potential prejudice arising from loss or destruction of documents, the delay in this case had not been so prejudicial that it would be inequitable to allow the action to proceed; and therefore he would have diasapplied the relevant limitation period for the causes of action had that been necessary.

The appeal

37. The original grounds of appeal were that the Judge erred in law in assessing the claimant's date of knowledge pursuant to LA 1980 s.14 to be 16 November 2011 or (in the alternative) 16 February 2012, and in indicating that he would have exercised his discretion under LA 1980 s.33 to disapply the limitation period.
38. In a skeleton argument served some two weeks before the hearing of the appeal, prepared by Mr Simon Anderson, the claimant's counsel on the appeal, it was conceded that by 25 September 2009 the claimant knew his addiction was capable of being attributed to his employment insofar as he had by then sought a referral to Lifeline and that, had he not misled his GP about a potentially major diagnostic feature of this case, then a psychiatric referral and the diagnosis could have been sought and obtained by 31 December 2009. It was stated that the claimant, on advice, is now prepared to concede that 31 December 2009 is his date of knowledge for the purposes of LA 1980 s.14.
39. The claimant continues, however, to oppose the appeal insofar as it challenges the Judge's decision that, in the alternative, he would have exercised his discretion under LA 1980 s.33 to extend the time limit for commencing the proceedings.
40. The appeal was listed to take place, and did take place, on 22 November 2017. On 17 November 2017 the claimant issued an application for permission to rely on the anonymised witness statement of one of the police officers ("Officer S") who was a member of the undercover unit and who was present at the training session at Sedgely Park on 6 May 2009. His account generally corroborates the claimant's case of what took place at the training session and the impact on the claimant.

Discussion and conclusion

41. I would refuse the application of the claimant to rely on the witness statement of Officer S. I would do so because the witness statement was served extremely late, the version served on the defendant and, indeed, the court was unsigned (although we were informed that it had in fact been signed), and the witness statement is unnecessary to reach the conclusion, which I do, that the appeal should be dismissed.
42. Section 33(3) of LA 1980 requires the court, when exercising its discretion under section 33(1), to have regard to all the circumstances of the case but also directs the court to have regard to the five matters specified in sub-sections 33(3)(a)-(f). There are numerous reported cases in which the court has elaborated on the application of that statutory direction in the context of the particular facts of the case. In many of the cases the court has stated various principles of general application. The general principles may be summarised as follows.

1) Section 33 is not confined to a "residual class of cases". It is unfettered and requires the judge to look at the matter broadly: Donovan v Gwentoys Ltd [1990] 1 WLR 472 at 477E; Horton v Sadler [2006] UKHL 27, [2007] 1 AC 307, at [9] (approving the Court of Appeal judgments in Finch v Francis unrptd 21.7.1977); A v Hoare [2008] UKHL 6, [2008] 1 AC 844, at [45], [49], [68] and [84]; Sayers v Lord Chelwood [2012] EWCA Civ 1715 [2013] 1 WLR 1695, at [55].

2) The matters specified in section 33(3) are not intended to place a fetter on the discretion given by section 33(1), as is made plain by the opening words "the court shall have regard to all the circumstances of the case", but to focus the attention of the court on matters which past experience has shown are likely to call for evaluation in the exercise of the discretion and must be taken into a consideration by the judge: Donovan at 477H-478A.

3) The essence of the proper exercise of the judicial discretion under section 33 is that the test is a balance of prejudice and the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant: Donovan at 477E; Adams v Bracknell Forest Borough Council [2004] UKHL 29, [2005] 1 AC 76, at [55], approving observations in Robinson v St. Helens Metropolitan Borough Council [2003] PIQR P9 at [32] and [33]; McGhie v British Telecommunications plc [2005] EWCA Civ 48, (2005) 149 SJLB 114, at [45]. Refusing to exercise the discretion in favour of a claimant who brings the claim outside the primary limitation period will necessarily prejudice the claimant, who thereby loses the chance of establishing the claim.

4) The burden on the claimant under section 33 is not necessarily a heavy one. How heavy or easy it is for the claimant to discharge the burden will depend on the facts of the particular case: Sayers at [55].

5) Furthermore, while the ultimate burden is on a claimant to show that it would be inequitable to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the defendant is, or is likely to be, less cogent because of the delay is on the defendant: Burgin v Sheffield City Council [2015] EWCA Civ 482 at [23]. If relevant or potentially relevant documentation has been destroyed or lost by the defendant irresponsibly, that is a factor which may weigh against the defendant: Hammond v West Lancashire Health Authority [1998] Lloyd's Rep Med 146.

6) The prospects of a fair trial are important: Hoare at [60]. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims, especially when any witnesses the defendant might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why: Donovan at 479A; Robinson at [32]; Adams at [55]. It is, therefore, particularly relevant whether, and to what extent, the defendant's ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents: Robinson at [33]; Adams at [55]; Hoare at [50].

7) Subject to considerations of proportionality (as outlined in (11) below), the defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount: Cain v Francis [2008] EWCA Civ 1451, [2009] QB 754, at [69].

8) It is the period after the expiry of the limitation period which is referred to in sub-subsections 33(3)(a) and (b) and carries particular weight: Donovan at 478G. The court may also, however, have regard to the period of delay from the time at which section 14(2) was satisfied until the claim was first notified: Donovan at 478H and 479H-480C; Cain at [74]. The disappearance of evidence and the loss of cogency of evidence even before the limitation clock starts to tick is also relevant, although to a lesser degree: Collins v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 717, [2014] PIQR P19, at [65].

9) The reason for delay is relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction: Cain at [73]. I consider that the latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant's ability to defendant the claim.

10) Delay caused by the conduct of the claimant's advisers rather than by the claimant may be excusable in this context: Corbin v Penfold Company Limited [2000] Lloyd's Rep Med 247.

11) In the context of reasons for delay, it is relevant to consider under sub-section 33(3)(a) whether knowledge or information was reasonably suppressed by the claimant which, if not suppressed, would have led to the proceedings being issued earlier, even though the explanation is irrelevant for meeting the objective standard or test in section 14(2) and (3) and so insufficient to prevent the commencement of the limitation period: Hoare at [44]-[45] and [70].

12) Proportionality is material to the exercise of the discretion: Robinson at [32] and [33]; Adams at [54] and [55]. In that context, it may be relevant that the claim has only a thin prospect of success (McGhie at [48]), that the claim is modest in financial terms so as to give rise to disproportionate legal costs (Robinson at [33]; Adams at [55]); McGhie at [48]), that the claimant would have a clear case against his or her solicitors (Donovan at 479F), and, in a personal injury case, the extent and degree of damage to the claimant's health, enjoyment of life and employability (Robinson at [33]; Adams at [55]).

13) An appeal court will only interfere with the exercise of the judge's discretion under section 33, as in other cases of judicial discretion, where the judge has made an error of principle, such as taking into account irrelevant matters or failing to take into account relevant matters, or has made a decision which is wrong, that is to say the judge has exceeded the generous ambit within which a reasonable disagreement is possible: KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 783, [2003] 3 WLR 107, at [69]; Burgin at [16].

43. There was some debate before us as to the date on which the limitation period began in the light of the claimant's concession that the Judge was wrong in his approach to section 14(2) and (3) on the facts. Mr Ian Skelt, counsel for the defendant, submitted that the limitation period began in May 2009 when the training session at Sedgley Hall took place, or in June 2009 by which time, as the Judge observed, the GP's notes showed that the claimant had made a connection between his drug taking in his private life and his exposure to heroin in the course of his employment.
44. Mr Anderson accepted in the course of his oral submissions that, for the purposes of section 14(2) and (3), the events of May and June 2009 relied upon by Mr Skelt were the starting point for fixing the commencement of the limitation period: the primary injury was addiction to heroin, and the claimant became addicted to (and was aware he was addicted to) heroin shortly after the 6 May 2009 training session. Mr Anderson submitted, however, that section 14(2) would not have been satisfied until after a further period of a few months in which it would have been reasonable for the claimant to seek expert medical evidence prior to the commencement of any proceedings against the defendant. It is not necessary to resolve that debate, which might turn on a detailed analysis of the claimant's precise state of mind, knowledge and addiction at that time, since I do not consider that it makes any difference to the outcome of the appeal whether the limitation period began to run in May or June 2009 or a month or so later.
45. Mr Skelt observed that the Judge had addressed the section 33 point only briefly. He submitted that there was no good reason for the delay of up to 18 months prior to the issue of these proceedings in November 2013. He said that the Judge's mistaken approach to the issue of knowledge for the purposes of section 14(2) had infected the exercise of his discretion under section 33. He submitted that the Judge's observation that delay gave rise to equal prejudice to both parties was inapposite because it was never argued on behalf of the claimant that he had suffered evidential or procedural prejudice from the delay; and it was inadequate because it failed to address the particular prejudice to the defendant arising from the delay as outlined in the witness statement dated 30 June 2015 of Mr David Finch, the defendant's solicitor.
46. In paragraph 23 of his witness statement Mr Finch said that the following documents "have been searched for but which are missing/no longer in the Defendant's possession or which the Defendant can no longer say ever existed":

"DC Halliwell's (cover officer on Operation Bluebeard) daybooks for dates after 26 July 2007.

E-mails between the organiser of the Sedgley Park drug course and the presenter, who was external to GMP. These have been deleted with the passage of time.

Any other e-mails or written notes relating to the structure, format, logistics and organisation of the lecture.

Any record of any feedback that may or may not have been generated in any format.

Notices relating to the lecture if recorded may have been retained in a 'daily journal' that was open to all staff in the [undercover] unit. This book has now been destroyed having been 'weeded' after 3 years.

The Claimant's daybooks for the period of 'Operation Chain' that covered 19 March 2009 to 2 May 2009.

Any documents relating to the Claimant complaining that he felt strange or unwell after kiting or that he had complained about having to kite (the Defendant's position on this is as set out in the Defence).

Any text messages between the Claimant and the officer named at paragraph 11 of the Amended Particulars of Claim."

47. In paragraph 24 of his witness statement Mr Finch identified the following three categories of documents as those of which "we are unaware as to whether they exist or not because they would be in the Claimant's possession": records of relevant text message exchanges between the claimant and other persons attending the training session; documents relating to the NHS drug treatment centre which the claimant attended for hypnotherapy sessions; and any updated medical/GP records post-dating January 2013.
48. I do not accept that, in carrying out the balancing exercise for the purposes of section 33, the matters mentioned in those paragraphs of Mr Finch's witness statement amount to real prejudice to the defendant as a result of the claimant's culpable delay. In the first place, there is no evidence as to when the documents ceased to be available, whether before, during or after the limitation period commenced. It cannot be said, therefore, that the documents were lost, disappeared or were destroyed during any period of delay, let alone any undue delay, by the claimant in commencing the proceedings.
49. Secondly, in the case of some of the documents, in particular the daybooks, it was for the police force itself to retain them. We were informed by Mr Skelt, on instructions, that the practice was for the police force to retain daybooks indefinitely. No explanation has been given as to why that practice was not followed in the present case.
50. Thirdly, Mr Finch himself says that the defendant does not know whether certain of the documents specified in paragraph [23] of his witness statement ever existed at all or whether any of the documents in paragraph [24] of his witness statement ever existed. Accordingly, as regards the absence of those documents, any prejudice to the defendant from the claimant's delay is entirely speculative
51. Fourthly, there is no evidence that any enquiries have been made of present or former police officers, whether or not attending the training session in June 2009 or participating in Operation Bluebeard or Operation Chain (two police operations in which the claimant was involved and are mentioned in Mr Finch's witness statement quoted above), as to their recollection of any relevant matters that took place or did not take place, or as to standard practice at that time, including training and risk assessment, or as to whether they have knowledge or possession or had possession of any of the documents specified or can say what became of them and when. There is no evidence that any specific person, who the defendant would have wished to call as a witness, cannot be traced or cannot recall at all or with sufficient clarity relevant events and matters.
52. Fifthly, evidence presumably is available as to the present practice in relation to training sessions and operations of a similar kind to those which involved the claimant and as to whether or not that practice has changed over time and, if so, when and why.
53. Mr Skelt next submitted that the Judge was wrong to accept, as he did in paragraphs [20] and [24] of the judgment, the claimant's argument that it was reasonable for the claimant not to be frank when seeking medical advice. He emphasised that the claimant had a confidential relationship with his doctor and that the claimant had in fact told his doctor on four different occasions that he was an undercover police officer. Mr Skelt observed that the claimant had also told the same to Lifeline and that he was a heroin addict. He submitted that the claimant had intentionally and unreasonably withheld a crucial part of the diagnostic picture. Mr Skelt further observed that the claimant at all times had access to the Police Federation for legal and other advice.
54. In order to succeed on this point, Mr Skelt had to argue, and did argue, that no judge, acting properly, could have come to the conclusion that it was reasonable for the claimant not to be fully frank when seeking medical advice. I have no hesitation in rejecting that proposition. On the particular facts of the present case, it was undoubtedly a conclusion to which the judge was entitled to arrive. The claimant believed that disclosure of his addiction would have exposed him to the high risk of dismissal from his employment and criminal proceedings. It was not unreasonable for him to try to deal with his addiction without exposing himself that risk. It was not unreasonable for him to seek expert medical advice and legal assistance only when he began to be investigated and was subsequently arrested for criminal activity.
55. Mr Skelt appeared in his reply submissions to play down suggestions as to what may have motivated the claimant in relation to non-disclosure of his addiction, warning that the court should not go beyond the matters specifically mentioned by the claimant in his evidence. It is necessary to bear in mind, however, that he was a litigant in person before the Judge, and the risk of loss of employment and criminal proceedings was obvious.
56. It is relevant, and in favour of the claimant, that he instructed his solicitors in November 2012, only some four months after the expiry of the limitation period, those months themselves being a period of turmoil for the claimant when he was under investigation and ultimately arrested for criminal offences. Once again, the distraction of those matters is obvious whether or not they were expressly mentioned by the claimant in his evidence before the Judge when he was a litigant in person.
57. Further, it is relevant, and in favour of the claimant, that the delay from November 2012 until November 2013, when the claim form was issued, was not the claimant's fault. It appears from the witness statement of Mr Paul Jackson, his solicitor, that both the claimant's solicitors and counsel were of the view that the limitation period would not expire until November 2013. That view on the part of the claimant's advisers doubtless affected the timetable for the commencement of proceedings. Those advisers would no doubt argue that their view was not an unreasonable one, bearing in mind that the Judge himself considered that it was appropriate to distinguish between the physical drug addiction, on the one hand, and consequential depression, on the other hand, and that the limitation period did not begin to run until February 2012 when the claimant's GP first diagnosed depressive disorder.
58. Mr Skelt also criticised delay in the prosecution of the proceedings after they were issued. The Judge expressed the view (at [23]) that there had been very little delay by the claimant after the cause of action arose. In any event, there is no evidence that any undue delay after the issue of the proceedings was the fault of the claimant personally as opposed to the actions taken or not taken on his behalf by his lawyers.
59. On the question of proportionality, Mr Skelt submitted that this is a weak claim, bearing in mind, among other things, that there are only three references to "kiting" in Operation Bluebeard and that, at the end of that Operation, the claimant was, on his own admission, in good health. He also submitted that defence of the proceedings would be expensive, and it would be administratively complicated due to the sensitivities of the activities under consideration.
60. So far as concerns the legal strength of the claim, it would be entirely inappropriate at this stage to conduct a mini-trial on very limited evidence. It cannot be said that the claim is so weak or inherently implausible that it could be stuck out or dismissed on summary judgment. If the claim is made out, then the claimant will have suffered significant loss and damage as a result of the defendant's negligence. In any event, the defendant's points on proportionality are misplaced because, at the appellate stage, the test is not so much proportionality as whether the decision is flawed by an error of principle or is wrong, in the sense that it is outside the bounds of any legitimate exercise of judicial discretion. The points made on behalf of the defendant fall far short of satisfying that test.
61. Mr Anderson advanced other grounds for supporting the Judge's exercise of his discretion under LA 1980 s 33, including the public interest in ensuring that police officers are not harmed in carrying out such under-cover operations as feature in the present case. They were not, however, addressed by the Judge and are not essential to uphold his decision, and so it is not necessary to address them here.
62. For all those reasons, I would dismiss this appeal.

Lord Justice Hickinbottom :

63. I agree.

Mr Justice Turner :

64. I also agree.

…………………………………………………………………………………..

APPENDIX

"11.— Special time limit for actions in respect of personal injuries.

(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

…

(2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.

(4) Except where subsection (5) below applies, the period applicable is three years from—

(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured.

…"

"14.— Definition of date of knowledge for purposes of sections 11 and 12.

(1) ^… in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts—

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) the identity of the defendant; and

(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

…

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire—

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."

"33.— Discretionary exclusion of time limit for actions in respect of personal injuries or death.

(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—

(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… ;

(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.

…

(7) In this section "the court" means the court in which the action has been brought.

..."