England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Manchester Crown Court, Crown Square, Manchester, M3 3FL
		27th July 06

Mr Justice Beatson :

1. On 23 February 2006, following a trial of the issue of limitation as a preliminary issue, HH Judge Armitage QC decided that the claimant's claim for damages for personal injuries against the second defendant is barred by section 11 of the Limitation Act 1980. He held that by 30 June 1992 at the latest the claimant had constructive knowledge of the facts required by section 14 of the 1980 Act, so that the primary limitation period expired on 30 June 1995. He also held that, having regard to the provisions of section 33 of the 1980 Act, it would not be equitable to direct that section 11 shall not apply to this claim. The personal injuries claim against the second defendant was pleaded in February 2002 but deleted in December 2002. In October 2004 the claimant applied to re-amend the particulars of claim to reinstate the personal injuries claim. This application was also before the learned judge but fell away in the light of his decisions on sections 11 and 33 of the 1980 Act.
2. By a notice filed on 9 March 2006 the claimant sought permission to appeal both against the judge's decision as to the date of the claimant's knowledge and his refusal to exercise the court's discretion to disapply the primary limitation period pursuant to section 33. Swift J ordered the application for permission to be listed for an oral hearing to be followed by the hearing of the appeal if permission is granted. In the event, the claimant did not pursue his appeal against the judge's decision as to the date of the claimant's constructive knowledge so that I am only concerned with his exercise of discretion under section 33. For reasons that will become apparent I have concluded that permission to appeal should be granted. The remainder of this judgment deals with the substance of its appeal.

The background

3. The summary of events which follows is derived from the claimant's chronology, which was not contested, and Judge Armitage Q.C.'s judgment: see in particular paragraphs 34-36, 40-41, 43, 47-48, and 54-55.
4. The claimant was present at Hillsborough Stadium on 15 April 1989 when spectators died or suffered serious injury as a result of crushing in the crowd attending a football match. In November 1989 he consulted the first defendant about a claim for compensation against the South Yorkshire Police in respect of injuries he suffered as a result of his experience at Hillsborough. The first defendant instructed the late Dr Charles Gray, a consultant psychiatrist, to examine the claimant and report on his condition and prognosis in relation to any psychiatric injuries suffered by him. Dr Gray reported on 24 November 1989 that the claimant had a moderate degree of post-traumatic stress disorder as a result of his involvement in the Hillsborough disaster. Dr Gray stated these should resolve without any specific treatment over a matter of months and the claimant should suffer no permanent psychological consequences as a result of the disaster. Dr Gray's opinion was material to the issues of causation and quantification of damages and was relied on by the claimant and the first defendant. In the light of it, on 20 January 1990, the claimant's case against the South Yorkshire Police was settled for £2,750.
5. The claimant's condition did not resolve. On the facts presumed for the purpose of the preliminary issue there was a clear deterioration in his condition between January 1990 and the end of 1992. He became withdrawn, was drinking more, and broke up with his girlfriend with whom he had been in a relationship for some 8 years. In March 1992 when registering with a new GP he misrepresented his true alcohol use but told the doctor about losing his girlfriend and about the change in him since Hillsborough. The judge stated (paragraph 41) that some two years after he had settled his claim on the basis that he would recover gradually over a short period of time he was telling his GP that he had not recovered from Hillsborough. The judge considered that he was seeking medical advice for a persisting condition. It appears (see paragraph 42 of the judgment) that the claimant consulted another GP in October 1992. Although he said that he had not mentioned Hillsborough, the GP noted that he had referred to drinking every night, to being depressed about the recent break up with his girlfriend, and to feeling that for three years he had put up barriers against people who said that he was depressed.
6. Thereafter the claimant resorted to drugs, first cannabis and, from about 1995, cocaine. He decided to stop his heavy use of cocaine in May 1998 but on 30 August that year he was arrested for possession of a class A controlled drug with intent to supply and, following a trial, on 16 April 1999 was sentenced to 3 years imprisonment. It appears that he sought advice about Hillsborough from the solicitors who acted on his behalf in the criminal proceedings. They gave him the name of his present solicitors who had held a forum for Hillsborough victims and had apparent success on behalf of one Hillsborough claimant. The claimant wrote to them on 2 March 2000. As a result of the advice he received, and in the light of a report by Dr Higson, a clinical psychologist, he instituted proceedings against the first and second defendants.
7. There were two elements to the claim as originally pleaded in February 2002. The first was an economic loss claim founded on the premise that the original claim was compromised at a substantial undervalue. The second was a personal injury claim founded on the alleged negligence of Dr Gray in relation to his diagnosis as to the severity of post traumatic stress disorder and his prognosis of the claimant's psychiatric condition. The allegation is that Dr Gray failed to establish the true severity of the claimant's condition and that his prognosis was falsely optimistic which led to the claimant receiving no treatment and to his psychological condition becoming entrenched. On 20 December 2002, following a change of counsel, the particulars of claim were amended by the deletion of any claim for damages for personal injury. In July 2004, following a further change of counsel, the claimant sought to re-amend the particulars of claim so as to reinstate the claim for personal injury damages. The economic loss claims against both defendants were compromised after the pre-trial review on 21 October 2004 when the question of limitation was ordered to be determined as a preliminary issue together with the claimant's application to re-amend.

The evidence

8. The judge heard evidence from the claimant and considered the agreed evidence of his mother and former girlfriend, and the expert medical reports relied on by the claimant: see paragraphs 15-21 and 59-61 of the judgment. The expert medical evidence dealt with the issue of avoidance by those with post traumatic stress disorder of stimuli associated with their trauma and the impact of the claimant's post traumatic stress disorder on his capacity to come to conclusions and make decisions about that condition and act on them: see paragraphs 17 and 61 of the judgment.

The decision below

9. The judge rejected the claimant's evidence that he attributed his condition to his own weakness rather than to the effect of Hillsborough upon him: see paragraphs 48 and 55-57 of the judgment. Although the judge accepted that the claimant may have been afflicted by avoidance and survivor guilt, he stated (paragraph 60) that the claimant "had overcome them to an extent allowing him to make two claims for damages, one arising directly and the other indirectly out of the traumatic event". He was not persuaded that the claimant was consistently avoiding thoughts or discussions about Hillsborough and stated that the claimant remained aware that he was not getting better despite the expert opinion and prognosis by the second defendant which Dr Freeman, one of the medical experts, stated (see paragraph 61) would have seriously impeded his "help seeking behaviour". Notwithstanding the expert evidence concerning avoidance, the judge concluded (paragraph 50) that "the claimant remained conscious of the persisting connection between his circumstances and Hillsborough and that he was capable of revealing that connection if it suited him".
10. Since the claimant did not pursue an appeal against the judge's decision as to the date of his constructive knowledge of the facts required by section 14 of the 1980 Act, I can deal with that part of the judgment relatively briefly.
11. The judge stated:-

i) that by the time the claimant saw Dr Gray he knew that his condition was very different and that it was the result of his experience at Hillsborough (paragraph 63).

ii) By the time he acted on Dr Gray's report he knew that the condition which accounted for the difference was called post traumatic stress disorder (paragraph 63).

iii) The unexpected outcome was the failure of the claimant to recover in accordance with Dr Gray's prognosis. That was a fact observable and in his judgment observed by the claimant without the help of expert advice (paragraph 64).

iv) Once Dr Gray's prognosis proved to be inaccurate the claimant had good reason to enquire when he would in fact recover and, if the answer was that he would not, the reason (paragraph 65). Such an enquiry would have been made by a reasonable person and post traumatic stress disorder did not change the claimant from such a person. An enquiry could have been directed to either the original solicitor and through him to Dr Gray, directly to Dr Gray, or to his GP (paragraph 66).

v) Despite having ample opportunity the claimant made no direct enquiry (paragraph 67). Although the test is objective, the claimant's circumstances are relevant. He was registered with a GP, knew the name and address of his former solicitor, was still in work and was living with someone unaffected by the trauma he suffered.

12. Although the judge accepted the claimant avoided talking about Hillsborough whenever he could and that avoidance is a feature of post traumatic stress disorder, as it happened this had not prevented the claimant from instructing the first defendants and carrying his claim through to compromise. It was clear that when the claimant wished to he could discuss and even initiate action in relation to Hillsborough whether by speaking to a solicitor, a doctor, a nurse, or a counsellor (paragraph 68). He considered that a reasonable person would interpret a prognosis for recovery in a matter of months as recovery within twelve to twenty-four months. At the end of that period failure to recover would lead a reasonable person to conclude that if they were going to enquire further about the diagnosis and prognosis it must be done then. He allowed a further six months for the conclusion of such enquiries and thus arrived at the date of 30 June 1992 (paragraph 69-70). He recognised, however, that the determination that the primary period of limitation expired three years later on 30 June 1995 involved what he described as "a spurious assertion of exactness" (paragraph 74).
13. I turn to section 33 of the 1980 Act. So far as material, this provides:

"(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 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. …..

(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. …..

(8) References in this section to section 11 include references to that section as extended by …. [section 14]."

14. The judge first summarised section 33(1), and stated that by section 33(3) he was required to have regard to all the circumstances of the case but in particular to the six specified factors. He continued:-

"73. Of [the six specified factors] only one - s.33(3)(c) - stands to be disregarded entirely because it is not alleged that any conduct by Dr Gray or the second defendant is relevant.

74. S.33(3)(a) requires consideration of the length and reasons for the delay by the claimant (principally) after the expiration of the primary period of limitation determined (in this case) by s. 11 and s. 14. I have determined that the primary period of limitation expired five and a half years after the claimant acted on Dr Gray's report. For present purposes I will take that to be 30th June 1995 (albeit that involves a spurious assertion of exactness). This action was commenced in 2002. The allegations of fact now relied upon by the claimant were contained in the Particulars of Claim in February 2002. They have remained the same albeit the cause of action founded on them was expressly abandoned in December 2002. The length of delay to the commencement of the action, in my judgment, is significant. The reason for it, which for this purpose I must consider subjectively [see: Coad v Cornwall & Isles of Scilly Health Authority [1998] 8 Med LR 154, CA] is that the claimant did not seek advice about his failure to improve and recover as predicted by Dr Gray. I will not rehearse the history set out above, nor the expert medical evidence relating to the effect of PTSD on the claimant's willingness to talk about Hillsborough. Having seen and heard the claimant and for this purpose added in the matters concerning his obvious intelligence and retained ability to commence a university degree course in 1992, it remains my judgment that the claimant chose not to investigate his failure to recover, despite being aware of it and retaining the ability to act. The reason for acting eventually was unconnected with such thought processes. He stumbled across the relevant advice as a result of investigating whether he could use Hillsborough as a factor in his appeal against a sentence of imprisonment. In my judgment the material relevant to this factor does not favour disapplication of s. 11. The claimant is responsible for the delay (emphasis added).

75. S. 33(3)(b) directs that regard must be had to the extent to which, having regard to relevant delay, the evidence likely to be adduced on either side is or is likely to be less cogent than if the action had been brought within the primary time limit. If the action had been brought whilst Dr Gray survived he might have been able to contribute significant information, particularly addressing any facts pleaded in the Particulars of Claim which did not accord with his recollection. Certainly he would have been asked to give an account of what he knew about PTSD in 1989 and how he interpreted the information given to him by the claimant. It seems to me that there is evidence that the claimant's recollection and thus the cogency of his evidence on matters going to what he told Dr Gray and how he has been affected by PTSD over the ensuing years is diminished (emphasis added). In my judgment the material on this topic does not lead to a conclusion that the prejudice, albeit present on both sides, is more than minor. The claim may not be quite a "documents only" case on questions of fact, but the matters which I have mentioned in relation to this factor do not lead to the conclusion that it would be inequitable to allow the claim to proceed.

76. S. 33(3)(d) directs that regard must be had to the duration of any disability of the claimant arising after the cause of action accrued. The claimant has suffered no period of formal legal incapacity. It is to be assumed for present purposes that he has been adversely affected by PTSD for the whole period, which still affects him, did not deprive him of capacity to decide and act in relation to his continuing illness. This factor does not support disapplication.

77. S. 33(3)(f) requires consideration of the steps, if any, taken by the claimant to obtain, medical legal or other expert advice and the nature of the advice he received. The evidence in this case is that although he was registered with general practitioners and consulted them from time to time, Mr McHugh did not ask for advice about the diagnosis, prognosis or treatment of PTSD - which he knew he had. When he did seek advice, [his then solicitors'] answer took the claimant swiftly to the expert legal and medical advice upon which he now relies. The pace of progress thereafter is not a point against him for the purpose of s. 33(3)(e).

78. The defendant is faced with a claim which is stale and which could and should have been decided some years ago. I accept that there is prejudice to those with financial responsibility for such claims as this, where uncertainty persists because claims are not made and dealt with promptly (emphasis added). I accept also that the claimant stands to lose a potentially valuable claim. One of the reasons, mentioned by Mr Ward of the claimant's present solicitors, for the reinstatement of the claim, is the perceived increase of the claimant's chances of proving the existence of certain duties of care, founded on my judgment in 2004 in Hall v Egdell. In the present circumstances I am not concerned with reinstatement (or the impact of s. 35) because my conclusion is that the claim was commenced out of time. The claim may be stronger than it was in 2002. It remains a chance of success, not a certainty (emphasis added).

s.33 - conclusion

79. In my judgment the persistent inactivity of the claimant, until prompted to action by information provided by chance, has been such that it would be inequitable to direct that s. 11 shall not apply. The result is that this claim for damages for personal injury is barred by s. 11 of the Limitation Act 1980."

The grounds of appeal and the submissions of the parties

15. The grounds of appeal in relation to section 33 in the appellant's notice are:-

i) The judge wrongly refused to exercise the discretion to disapply the primary limitation period because, despite finding that there was no evidential prejudice to the defendant, he held that the claimant had delayed too long before issuing proceedings following the expiry of the primary limitation period. The written grounds state that, in so finding, the judge failed to give sufficient weight to the debilitating effect of the claimant's psychiatric injury with its accepted secondary affects of substance abuse, criminality and imprisonment.

ii) This case raises an important point in respect of the application of section 33 where the injury complained of is mental illness not amounting to legal disability but with co-morbid substance abuse and secondary criminality and where the complaint is not of the primary injury but of secondary harm caused by sub-standard medical intervention.

16. At the hearing, Mr Mansfield QC (who did not appear before the judge) made the following submissions:-

i) The approach the judge adopted was too narrow in looking at the six elements in section 33(3) but in not looking properly at "all the circumstances of the case" as is required by the statute and the authorities. Mr Mansfield relied on the recent decision of the House of Lords in Horton v Sadler [2006] UKHL 27, a decision made since the judge's decision in this case. In that case Lord Bingham of Cornhill stated at paragraph 21 that "the question for the court under section 33 is always whether it is equitable or inequitable as between the parties to override the time bar which, if relied on by the defendant, will, unless disapplied by order of the court, defeat the action which the plaintiff has ex hypothesi brought out of time". At paragraph 32 his Lordship stated that "…..the court must be guided by what appears to it to be equitable, which I take to mean no more (but also no less) than fair, and it must have regard to all the circumstances of the case and in particular the six matters listed in sub-section (3)".

ii) The judge insufficiently distinguished between the approach to be taken in the context of section 33 and that to be taken in the context of section 14. Whereas in the latter context the test is objective, in the context of section 33 the test is subjective. Mr Mansfield relied in particular on the decision in Adams v Bracknell Forest BC [2004] UK HL 29, [2005] 1 AC 76 in which Lord Hoffmann approved of the statement of Evans LJ in Forbes v Wandsworth Health Authority [1997] QB 402 at 422 that because there is a wide discretionary power to extend the period in circumstances which Parliament has defined in section 33, the knowledge provisions in section 14 should be interpreted neutrally so that an objective standard applies in respect of constructive knowledge under section 14(3): see paragraphs 44 and 45. Lord Phillips of Worth Matravers and Lord Scott of Foscott agreed with Lord Hoffmann: see paragraphs 57 and 71.

iii) The judge fell into error in not revisiting the medical and factual issues which he had considered in the context of section 14(3) in the light of the need for a subjective approach in the context of section 33. In particular Mr Mansfield argued that the judge had not asked why this claimant had not made enquiries and does not deal in this part of his judgment with the evidence of the claimant's anxiety and depression and avoidance, the uncontested evidence of his mother and former girlfriend, and the expert medical evidence that avoidance is a product of untreated post traumatic stress disorder. He submitted that the judge did not accordingly consider the reasons for this claimant's delay and does not state in the judgment why his reasons for delay are not relevant in the context of section 33 or not factors pointing in favour of disapplying the primary limitation period. Mr Mansfield also criticised the judge for not giving weight to the fact that it was not until the year 2000 that the claimant had actual knowledge.

iv) The judge gave no or insufficient weight to the question of whether a fair trial was still possible in assessing the balance of prejudice in this case. Mr Mansfield submitted that the judge found that there was little or no evidential prejudice to the defendant and that as Dr Gray had died before the end of the primary limitation period the expiry of that period did not cause prejudice. He relied on the Court of Appeal authority (see Hartley v Birmingham City DC [1992] 2 All ER 213, 224 per Parker LJ) that "what is of paramount importance is the effect of the delay on the defendant's ability to defend". He also relied on the references to fairness in the speech of Lord Bingham in Horton v Sadler to which I have referred, and to the statement by Lord Hoffmann in that case that, since Thompson v Brown [1981] 1 WLR 744, "the practice of the courts has been regularly to exercise the discretion in favour of the plaintiff in all cases in which the defendant cannot show that he has been prejudiced by the delay".

17. Mr Mansfield also relied on the fact that, unlike the claim in Adams v Bracknell Forest BC, the claim against the second defendant in this case is a sizeable claim, in respect of which the claimant has no claim or certainly no cast iron claim against his lawyers either in respect of the delay before proceedings were issued in 2002 or in respect of the abandonment of the person injury claim against the second defendant in 2003.
18. On behalf of the second defendant, Mr Seabrook QC made the following submissions:

i) The claimant's criticisms of the judge's approach involved too restrictive and selective an approach to the exercise of discretion under section 33. Mr Seabrook relied on the width of the discretion as shown by the references in the authorities to its "unfettered" nature and submitted that, once the discretion is exercised within proper parameters, an appellate court should not intervene unless the decision is "plainly" wrong.

ii) The judge's conclusion in paragraph 74 in the context of his consideration of section 33(3)(a) must be seen in the light of his earlier findings of fact.

a) After hearing the evidence, and notwithstanding the agreed evidence of the claimant's mother and former girlfriend and the expert medical reports relied on by the claimant, the judge concluded that the claimant was tailoring his answers to meet the perceived requirements of the issue, did not accept the claimant's explanation for his failure to act sooner, and was not persuaded that the claimant was consistently avoiding thoughts or discussions about Hillsborough: see paragraphs 8-9, and 12 above.

b) Accordingly, while accepting that the expert evidence that avoidance could be a feature of post traumatic stress disorder, the judge rejected the evidence that it in fact had this effect in the claimant's case in relation to discussing and initiating action in relation to Hillsborough with his solicitor, doctors, and nurses.

iii) The judge duly considered the impact of delay on the cogency of the evidence for the purposes of section 33(3)(b) and concluded that there was such evidential prejudice on both sides but that it was not "more than minor" (paragraph 75).

iv) Having systematically considered each of the relevant non-exhaustive factors in section 33, in particular (a) and (b), in paragraph 78 the judge took an overview and observed that the defendant was faced with a claim which was stale and which could have been decided some years ago, and accepted that there was prejudice to those with wider responsibilities for such claims as this where uncertainty persists. He submitted that the judge was entitled to do this. The statute lists evidential prejudice as one of the factors but does not highlight it.

v) In the light of the judge's conclusions about the claimant's capacity to decide and act the submission that the case raises an important point in relation to the application of section 33 where the injury complained is of mental illness not amounting to legal disability is without merit and that there is no proper basis for interfering with the exercise by the judge of his discretion: Respondent's skeleton argument, paragraph 13.

Discussion

19. The references in the authorities to section 33 creating an "unfettered" discretion (see for example Thompson v Brown [1981] 1 WLR 744, 752 G-H and Horton v Sadler [2006] UK HL 27 at paragraphs 17 and 44) indicate the width of the margin accorded to a trial judge who takes account of the factors listed in section 33(3) and all the circumstances of the case. The use of the term "unfettered" is, however, in a sense misleading because, as is made clear by Auld LJ in KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85; [2003] QB 1441, paragraph 69, an appellate court may intervene where the judge has exercised wrong principles, taken account of irrelevant factors, ignored relevant factors, or made a decision that is "palpably" or "plainly" wrong. These are the classic techniques for the control of the exercise of discretionary power.
20. Appellate courts considering the scope of the discretion of trial judges under section 33 have warned that its width means that the extent to which they can give general guidance is limited, for circumstances are infinitely variable: see Hartley v Birmingham City DC [1992] 2 All ER 213, 224 J; KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85, QB 1441, paragraph 70; Horton v Sadler [2006] UK HL 27 at paragraph 33. Lord Hoffmann's statement in Horton v Sadler (see paragraph 16(iv) above) as to the practice of courts in cases where the defendant cannot show that he has been prejudiced by the delay must be seen in the light of this. In Hartley v Birmingham City DC [1992] 2 All ER 213 the Court of Appeal stated that one of the errors of the judge in that case was to rely on the practice of other judges which Leggatt LJ stated (at p 227) was "alien to the proper exercise of an unfettered discretion having regard to all the circumstances of the case", and see also Parker LJ at 223-4.
21. There is no indication in the statute as to the relative importance of the factors enumerated in section 33(3). In Halford v Brookes [1991] 3 All ER 559, 568 Russell LJ stated that the comparative weight to be attached to the considerations under section 33 is "clearly a matter for the judge". In Hartley v Birmingham City DC, however, Parker LJ, in the passage relied on by Mr Mansfield, stated that the effect of the delay on the defendant's ability to defend is "of paramount importance" (page 224), and see also KR & Others v Bryn Alyn Community (Holdings) Ltd at paragraph 81, per Auld LJ. In the latter case Auld LJ also stated that the permissible delay is likely to be highly sensitive to the prejudice it causes to the defence notwithstanding the existence of good reasons for its length. But the sheer length of delay may be a powerful factor in itself against disapplying the primary limitation period. Dobbie v Medway Health Authority [1994] 4 All ER 450 was a case in which most of the salient facts were not in dispute and most of the evidence was documentary. Sir Thomas Bingham MR stated (at page 460) that, although the trial judge held that the evidence would be less cogent than if the action had been brought timeously, the case could be tried without prejudice to the health authority despite the lapse of time. Nevertheless, the Court of Appeal upheld the decision of the trial judge not to disapply the primary limitation period. Steyn LJ stated (at page 463) that "the length of the delay was too great". The claim in Dobbie's case was brought fifteen years after the end of the primary limitation period, a far greater period than in the present case, and long after the date of actual knowledge by the plaintiff. But, as in the present case (see paragraph 75 of the judgment), while there was some diminishment in the cogency of the case, there was only limited overall prejudice to the defendant so that the consideration of section 33(3)(b) did not lead to the conclusion that it would be inequitable to allow the claim to proceed.
22. Any form of tariff depending on a particular period of delay would impermissibly cut down the wide discretion in section 33 cases. Hence the disapproval in KR & Others v Bryn Alyn Community (Holdings) Ltd (Auld LJ at paragraph 79) of Kilner Brown J's statement in Buck v English Electric Co Ltd. [1977] 1 WLR 806, 810 that where there has been a delay of five or six years there is a "rebuttable presumption" that the defendant will suffer prejudice. In KR & Others v Bryn Alyn Community (Holdings) Ltd it was, however, stated (at paragraph 81) that as a general rule of thumb the longer the delay after the occurrence of the matters giving rise to the cause of action the more likely it is that the balance of prejudice will swing against this application, and (at paragraph 79) that the weight to be given to a claimant's reasons for delay should, if the date of knowledge test is properly applied, be limited. This last statement does not sit altogether comfortably with the fact that, whereas in the context of section 14 an objective standard applies, in the context of section 33 the approach is subjective see Lord Hoffmann in Adams v Bracknell Forest BC [2005] 1 AC 76 at paragraphs 44-45 and Coad v Cornwall & Isles of Scilly Health Authority [1998] 8 Medical Law Reports 154.
23. The cases in which the absence of evidential prejudice has been emphasised are ones in which there has been only a short delay after the expiry of the primary limitation period. In Firman v Ellis [1978] QB 886 a claim had been made before the end of the limit, and there were negotiations between the parties but the writ had not been issued and was not renewed. A second writ was issued ten months after the primary limitation period expired, and six months after the defendant's insurers found this out and thereupon broke off negotiations for a settlement. In Hartley v Birmingham City DC [1992] 2 All ER 213 the claim was made one day out of time. In Thompson v Brown [1981] 1 WLR 744 it was made thirty seven days out of time, and in Horton v Sadler [2006] UK HL 27 five months out of time. In the present case proceedings were commenced almost seven years after the end of the primary period of limitation, not as long as in Dobbie v Medway Health Authority or KR & Others v Bryn Alyn Community (Holdings) Ltd but significantly longer than in the other cases referred to in this paragraph. It is also significantly longer than the four years in Burke v Ashe Construction Ltd [2003] EWCA Civ 717, in which the trial judge disapplied the primary period of limitation and Potter LJ stated (paragraph 46) that the judge's "exercise of discretion went to the extremity of its margins". In that case there was some evidential prejudice but there was a detailed statement from the site supervisor and the trial judge stated that "a respectably fair trial" remained possible.

Conclusion

24. In the light of the matters set out in paragraphs 19-23 above, I have concluded that the judge did not fall into a "plain" error either in relation to his consideration of section 33(3)(b), that is evidential prejudice, or in the way he weighed this factor in coming to his conclusion as to whether it would be equitable to allow the claim to proceed. In relation to section 33(3)(b) he took into account the fact that, if the action had been brought while the second defendant was still alive, he might have been able to contribute significant information. He stated that there is evidence that the claimant's recollection and thus the cogency of his evidence on matters going to what he told the doctor is diminished. Nevertheless he concluded that the material "does not lead to a conclusion that the prejudice, albeit present on both sides, is more than minor", and that section 33(3)(b) does not lead to the conclusion that it would be inequitable to allow the claim to proceed. This conclusion does not, however, mean that the section 33(3)(b) factor points inexorably to disapplication of the primary limitation period. The impact of this factor in this case is similar to its impact in Dobbie v Medway Health Authority, where the refusal of the trial judge to disapply the primary limitation period was affirmed by the Court of Appeal. In KR & Others v Bryn Alyn Community (Holdings) Ltd (at paragraph 92) it is stated that Dobbie's case illustrates the heaviness of the burden of proof on a claimant seeking to persuade a judge of the equity of disapplication. Although, in Burke v Ashe Construction Ltd, the period was disapplied, it is to be recalled that proceedings were commenced after a shorter period after the expiry of the primary limitation period and that the exercise of discretion in that case was said to be at "the extremity of its margins".
25. The judge was also entitled to take account of the length of delay and to find that for the purposes of section 33(3)(a) it was significant. I reject Mr Mansfield's criticism that the judge made an insufficient distinction between his approach to section 33 and his approach to section 14 when considering section 33(3)(a). Paragraphs 15-20 deal with the evidence on knowledge including the claimant's evidence. Paragraphs 22-61 of the judgment set out the factual circumstances and the judge's findings on the facts, including his assessment of the impact of the expert evidence on avoidance in the light of findings about the claimant's evidence. It was only then, in paragraphs 62-70, that the judge turned to the application of his findings to section 14. In paragraph 74 he correctly stated that, in considering the reason for the delay for section 33(3) purposes, he had to apply a subjective test and cited Coad v Cornwall & Isles of Scilly Health Authority [1998] 8 Med LR 154. He then stated his conclusion on section 33(3)(a) in the passage in paragraph 74 that I have emphasised by underlining in paragraph 14 of this judgment. In these circumstances, it was not necessary for him to set out again the history, the evidence and the findings which he had set out in paragraphs 15-61 of his judgment.
26. In weighing the various factors, the judge was entitled to take into account the prejudice to those with financial responsibility for claims such as this, where uncertainty persists because claims are not made and dealt with promptly. The judge properly considered the strength of the claim, stating (see paragraph 78 of the judgment) that, while it may be stronger than it was in 2002 in the light of his decision in Hall v Egdell in 2004, "it remains a chance of success, not a certainty". It appears that one reason for seeking to reinstate the personal injury claim was a perceived increase in the claimant's chances of proving the existence of certain duties of care in the light of that decision.
27. Mr Mansfield submitted the judge did not, or did not sufficiently, take account of the size of the claim in the exercise of his discretion, contrasting this case in this respect from Adams v Bracknell Forest BC [2005] 1 AC 76. The judge (in paragraph 78), however, states that the claimant stands to lose "a potentially valuable claim" which reference, albeit brief, indicates that he has had some regard to the size of the claim. If, as Russell LJ stated in Halford v Brookes, the comparative weight to be attached to the considerations under section 33 is "clearly a matter for the judge", his decision is not challengeable on this ground. To the extent that weight is a matter for an appellate court, in the circumstances of this case, I do not consider that the judge has given insufficient weight to this factor.
28. The final criticism is that the judge did not take into account that the claimant has no alternative claim against his lawyers, or certainly no cast iron claim, either in respect of the delay before proceedings were issued in 2002 or in respect of the abandonment of the person injury claim against the second defendant in 2003. It has been clear since Thompson v Brown in 1981 that a plaintiff's rights against his insured lawyers are relevant to the exercise of the discretion under section 33, and see also Horton v Sadler [2006] UK HL 27 at paragraph 32. There is no reference to this matter in the written submissions prepared by the claimant's former counsel for the trial before the judge. Nor was Mr Mansfield able to tell me that this was a matter which the judge was invited to take into account in considering the exercise of his discretion under section 33. In these circumstances I do not consider that the judge's failure to refer to this matter in his judgment constitutes a "palpable" or "plain" error. Section 33(3) enumerates the factors which a judge is required to take into account. The judge did so with the exception of that in section 33(3)(c), and he explained why he disregarded that factor: see the extract from paragraph 73 of his judgment set out in paragraph 14 above. While the judge is required to take account of "all the circumstances", I do not consider that he was obliged to deal in his judgment with a matter not contained in the statutory list and which was not relied on at the hearing before him.
29. For these reasons this appeal is dismissed.