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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 March 2016

HHJ Walden Smith :

1. This is the judgment setting out the reasons for my determination that the Claimant, Mrs Diane Sanderson, be granted a relatively short extension of time for the issue of a claim against the Defendant, the City of Bradford Metropolitan District Council ("Bradford MDC"), pursuant to the provisions of section 33 of the Limitation Act 1980 so as to allow her claim to proceed.
2. Mrs Sanderson seeks damages against Bradford MDC both as the widow and the personal representative of the estate of her deceased husband, Glyn Anthony Sanderson. The original claim was a claim for personal injury against Bradford MDC issued in the name of Mr Sanderson on 7 October 2013. As is explained further in this judgment, that claim was issued approximately 2 ½ months (or 10 weeks) after limitation expired on 19 July 2013. The issue for my determination was whether it was "equitable" to allow the action to proceed in accordance with the provisions of s.33 of the LA 1980 is was "fair and just" (per Smith LJ in Cain v Francis [2009] QB 754, 773E).

The Factual Background

3. Mr Sanderson was born on 19 August 1955. Mr Sanderson met his future wife in July 1980, when he was aged 25 and she was aged 19. They became engaged in August 1981 and married on 5 June 1982. He had been in the Signals Regiment from 1971 to 1976, his first couple of years based in Harrogate and then in Germany. The statement taken from Mr Sanderson on 28 October 2013 provides that he was not exposed to asbestos during that time.
4. At the time that he met Diane, Mr Sanderson was working as a plumber for Harold Sykes or the Sykes Syndicate. He describes his work for Harold Sykes and states that he was not exposed to asbestos that he was aware of. Mrs Sanderson was cross-examined about this evidence but was unable to provide any further information with respect to this part of her late husband's evidence.
5. In 1981 through to 1987, Mr Sanderson was employed by Bradford MDC as a plumber based in the Bell Dean area of Bradford. It is during this time that Mrs Sanderson contends her husband was exposed to asbestos.
6. Mr Sanderson's depot manager for the last 12 to 18 months of his employment with Bradford MDC was Mr Geoffrey Woodhead. The work carried out by Mr Sanderson as a plumber was described by him to be quite varied, working on various properties including houses, flats, maisonettes and bungalows belonging to Bradford MDC. Part of his work involved the "milk round" carrying out small jobs including fixing leaks under baths, sinks and cupboards and renewing plumbing and heating equipment when a property had been vacated by the council tenant. This work, according to his statement, involved him in removing asbestos ducting which could involve prising off ducting with a screwdriver or crowbar creating dirt and dust in the air; removing asbestos bath panels which would also sometimes require the breaking off of the board creating dust and dirt. He describes how the dust and dirt would get "all over you" and how the broken board would be swept up by brush and pan. Additionally, to deal with running repairs and voids when properties were left empty, Mr Sanderson describes ripping off fire-proof boards to carry out maintenance works and that when dealing with outside guttering and soffits these were made of asbestos boards which could be damaged which would cause dust and dirt to fall over anyone beneath.
7. While Bradford MDC do not have the opportunity to cross-examine Mr Sanderson, his evidence in his witness statement is a compelling account of how he was very frequently (possibly daily) in contact with asbestos in his working environment. Mr Sanderson identified three other plumbers who worked with him and also his depot manager from the mid-1980s. The other three plumbers have not been located by the Claimant's solicitors for further evidence to support Mr Sanderson's account. Mrs Sanderson said that there was only one of the three, Simon Townsend, who she had met when her husband worked for Bradford MDC and that the other two were unknown to her. Bradford MDC do not appear to have located any of the three named colleagues of Mr Sanderson even though they would have had the advantage of contact details (even if now out of date).
8. What the solicitors for Mrs Sanderson have been able to do is obtain evidence from Mr Geoffrey Woodhead. The statement from Mr Woodhead sets out that he was aware that quite a lot of asbestos was used in the council houses and schools that they worked in and that he had been told, incorrectly, that as the asbestos was white it was perfectly safe. Mr Woodhead was plainly concerned about the exposure to asbestos: he endeavoured to ensure that the plumbers did not come into contact with the asbestos as much as he could, and he gave them paper masks to wear so as to minimise the amount of dust that they were inhaling. Such a step would not in fact have assisted them and, despite Mr Woodhead's attempts to keep the men away from asbestos as much as he could, he says that they were working with asbestos on a fairly regular basis.
9. I have been shown a Health and Safety at Work Information Manual produced by Bradford MDC which refers to the use, handling and disposal of asbestos. While the document is not itself dated there is reference therein to various regulations and pieces of equipment which indicate that it was probably produced in the later part of the 1970s. It appears almost certain that it would have been available by the time Mr Sanderson commenced work with Bradford MDC.
10. Mr Sanderson had the onset of symptoms of mesothelioma between 2007 and 2010. Mrs Sanderson gave evidence that prior to his diagnosis with mesothelioma, her husband had pain in his abdomen for which he had sought medical advice for several years but nothing of concern had ever turned up. In January 2010, he slipped and fell and experienced pain in his left abdomen and noticed the development of a number of lumps under the skin. After intensive investigation, Mr Sanderson was advised on 19 July 2010 that he had mesothelioma. Mr Sanderson said that no-one advised him that he should take legal advice or that he might have a valid claim. He said that he had something in the back of his mind that there might be a claim and that "there was a statute of limitations with regard to bringing a claim" but not anything definite and that he was concerned about how any legal advice was to be paid for as he did not want to "saddle my family with debt". He said he was concentrating on his treatment and that he wanted to get better. Mrs Sanderson gave evidence that her husband wanted things to carry on as normal for as long as possible.
11. Initially Mr Sanderson had a course of chemotherapy which made him very ill. His doctors decided against any further sessions of chemotherapy and in late 2010/early 2011 he underwent intensive radiotherapy. The thought of taking legal advice was "at the back of [his] mind" but Mr Sanderson said he did not want to burden his family (his children were only aged 16 and 13 at the time) and that he was concentrating on getting better. Certainly Mrs Sanderson's evidence was that he always looked on the positive side and that "for the boys" he was keen for there to be normality. It is, in my judgment, a perfectly understandable and rational way for Mr Sanderson to have acted. His concerns were to protect his wife and children as much as he possibly could in the circumstances of his diagnosis.
12. While he did have the role of senior contracts manager who was referred to as having "excellent planning skills" and "excellent organisational ability", so that it could not be said that he was either naïve or ignorant of his potential rights (indeed, he admits to having the thought about bringing a claim, and an awareness of there being some time limitation on such a claim) this evidence has to be put into the context of what was actually happening to Mr Sanderson at the time. He had been given a diagnosis of a terminal illness which had come "like a bolt out of the blue". He had initially gone through treatment which had been extremely debilitating and had then achieved what was a remarkable recovery. The letter from St James's University Hospital dated as received on 18 January 2013 by his GP refers to Mr Sanderson remaining "remarkably well. He has intermittent fatigue but manages full independent self care and has returned to work." The letter from the Airedale General Hospital dated 25 January 2013 says "Really for the severity of his illness he is remarkably well at the moment." The letter further states that he is mentally very alert and that he was fit for work as a senior contracts manager although he must not undertake more than 37.5 hours a week or be put under undue stress.
13. I accept that it is very unusual for someone to have had the diagnosis of mesothelioma and yet to have this period of remission. It is understandable that during this time he and his wife were not discussing the possibility of legal action but were concentrating upon his medical situation and ensuring that life was as normal as possible for the family.
14. Unfortunately, Mr Sanderson's condition deteriorated rapidly in or about September 2013. He was seen by a MacMillan nurse, Julie Jones on 13 September 2013 who referred him for some benefits advice. He was then seen by a Kath Greenwood of the Bradford Benefits Advice Centre who, in addition to completing applications for various benefits, advised Mr Sanderson to contact a solicitor in order to make a claim.
15. Mr Sanderson contacted Irwin Mitchell on 27 September 2013, and an appointment at his home was arranged for 1 October 2013 when Mr Toft attended him. The claim was issued on 7 October 2013 and a 5 page letter of claim was sent to the Bradford MDC on 8 October 2013. That letter set out the alleged circumstances of exposure, the alleged breaches of statutory duty, the particulars of alleged negligence, the injury to Mr Sanderson, the disclosure that was expected, the non-medical experts to be instructed, the funding for the litigation and that an extension of time for service of the Particulars of Claim and evidence in support.
16. A without notice order extending time for service to 14 February 2014 was obtained on 15 October 2013 and Mr Sanderson sadly died on 18 January 2014.
17. There was a stay of the proceedings given by Master Eastman on 7 March 2014. The Amended Claim Form was filed on 9 January 2015 and the Particulars of Claim served on 3 March 2015. Bradford MDC raised the limitation defence in the Defence.
18. An order was made by Master Eastman on 15 October 2015, with respect to the trial of the limitation defence as a preliminary issue. This order provided that Mrs Sanderson was to give oral evidence and that the parties could request any other witness to attend to give evidence. Bradford MDC did not give any notice that they wanted Mr Woodhead to give evidence and so his evidence was not challenged by cross-examination.
19. An earlier order of Master Eastman, made on 17 April 2015, gave each party permission to exchange and file short expert engineering reports on the issue of breach of duty. The report of Mr Colin Plumb of Morgan Finch & Partners Limited is somewhat longer than the "few pages" Master Eastman envisaged but it deals with the breach of duty. Bradford MDC have decided not to adduce any engineering report and did not exercise their right pursuant to the order of 15 October 2015 to have Mr Plumb called for the purpose of cross-examination.
20. At the trial of the preliminary issue on 24 February 2015, I therefore heard the evidence of Mrs Sanderson who was subjected to cross-examination and the submissions of Counsel. The evidence of Mr Woodhead and Mr Plumb was not challenged by Bradford MDC and, similarly, the Claimant did not seek to have Mr Old cross examined. The other evidence available to me was the report of Dr Sinclair and the statement of Mr Sanderson himself.

The Statutory Framework

21. Mr Sanderson had knowledge within the meaning of section 14 of the Limitation Act 1980 when he was given the diagnosis of mesothelioma on 19 July 2010. Primary limitation therefore expired on 19 July 2013.
22. The burden falls upon the Claimant, Mrs Sanderson, to make out a case for the exercise of the discretion pursuant to section 33 of the Limitation Act 1980:

"(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—

(i) the provisions of section 11 … prejudice the plaintiff …;

and

(ii) any decision of the court order under this subsection would prejudice the defendant …

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…

(2) …

(3) In acting under this section the court shall have regard to all the circumstance 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;

…

(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"

23. The factors set out in section 33(3) (the five relevant ones are set out above) are the primary factors that must be taken into account in the balancing exercise between the prejudice to be sustained by the Claimant if the permission is not granted and the prejudice to be sustained by the Defendant if permission is granted: see Jackson LJ in Collins v SoS for BIS [2014] EWCA Civ 717.
24. Bradford MDC accepted in written and oral submissions before me that the Amended Defence was wrong to assert that the burden of proof on the Claimant that it would be equitable to disapply the limitation period is a heavy one and that it is an "exceptional indulgence" to a Claimant. In MOD v AB [2010] 117 BMLR 101, Smith LJ said:

"The judge began this section of his judgment by observing, correctly in our view, that the burden of proof under section 33 lies on the claimant (see Thompson v Brown [1981] 1 WLR 744,742) recognising that the suggestion made in KR v Bryn Alyn Community Holdings Limited [2003] QB 1441 that it is a heavy burden is no longer good law. The discretion to disapply section 11 is unfettered and the court's duty is to do what is fair: see Horton v Sadler [2007] 1 AC 307 and A v Hoare."

25. The fundamental question is whether it is fair and just in all the circumstances of the particular case to expect the defendant to meet the claim on the merits, notwithstanding the delay in commencing the proceedings: see Smith LJ in Cain v Francis [2009] QB 754. The discretion whether to grant permission is wide and "In resolving an application under section 33 the court must make a decision of which the inevitable effect is either to deprive the defendant of an accrued statute-bar defence or to stifle the claimant's action against the tortfeasor who caused his personal injuries. In choosing between these outcomes 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 subsection (3). These are, as Lord Diplock observed in Thompson [1981] 1 WLR 744,751, 'a curious hotchpotch'…" per Lord Bingham Horton v Sadler [2007] 1 AC 307, 323-4.
26. Taking those five relevant matters set out in section 33(3) in turn:

s.33(3)(a): Length and Reasons for Delay

27. The delay referred to in section 33(3) is the delay after the expiry of the primary limitation period (see Smith LJ in Cain v Francis and Lord Diplock in Thompson v Brown [1981] 1 WLR 744). The passage of time since the alleged exposure (in the mid-1980s) is a matter which is considered as part of the general circumstances.
28. The relevant delay for the purposes of s.33(3)(a) is therefore between 19 July 2013 and 7 October 2013, a period of 2 ½ months (or 10 weeks). The day after the issue of the claim the lengthy letter of claim setting out the details of the claim, was sent to Bradford MDC.
29. In considering this delay it is necessary to consider its length and its reasons, viewed on a subjective basis: section 33(3)(a) requires the court to conduct a subjective enquiry into two factual situations – the length of the delay and the reasons for the delay (see Coad v Cornwall and Isles of Scilly HA [1997] 1 WLR 189). The diagnosis of mesothelioma came as a complete blow to both Mr and Mrs Sanderson. She describes it as if their world had fallen apart, and she described both in her statement and in her oral evidence how Mr Sanderson was concerned to keep things as normal as possible for the family.
30. The initial chemotherapy treatment had a devastating effect upon Mr Sanderson and made him very ill. At that time he did not have the thought of litigation at the forefront of his mind, even though he accepts that he had in the back of his mind both that there was the possibility of litigation and that there was some limitation on the time in which such a claim could be brought. Mr Sanderson was an intelligent man who had a responsible job and therefore was someone who would know of the possibility of litigation but was, completely understandably, focussed on his treatment and trying to keep things as normal as possible. He was someone who his wife described as always endeavouring to be positive. When the intensive radiotherapy treatment had a positive effect and he was given, an entirely unexpected, reprieve he grabbed hold of that return to normality including returning to work. Combined with his concern to make things as normal as possible, particularly for his children, Mr Sanderson was keen not to saddle his family with debt and that gave him further reason not to embark upon litigation. When he became ill again in about September 2013 his deterioration was rapid. It was at this time that the MacMillan nurse assisted him with applying for non means-tested benefits and he was given advice from the Benefits Advisor about the possibility of a claim.
31. Consequently, while Mr Sanderson was an individual who was perfectly capable of taking legal advice and issuing a claim at an earlier stage there are, in my judgment, good reasons as to why he did not. First, there was the shock of the unexpected diagnosis. Second, there was the treatment which had a very profound adverse impact upon Mr Sanderson. Third, there was the period of unexpected remission during which he endeavoured to keep life as normal for his wife and children as was possible. Fourth, there was his desire to ensure that he did not leave his family with legal debts. Fifth, there was the perfectly understandable human reaction to such catastrophic news that there were more important things than bringing a claim for damages.
32. The combination of these factors ,together with the fact that the delay is not excessive but 2 ½ months or 10 weeks, weigh heavily in the balance in favour of giving the extension of time.

Section 33(3)(b): less cogent evidence

33. In Cain v Francis, Smith LJ set out that making a direction restoring an obligation on the part of the defendant to pay, is only prejudicial to the defendant if it means that the right to a fair opportunity to defend has been compromised:

"It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on its merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as the effect it has had."

34. The delay of 2 ½ months from the expiration of the primary limitation period has not adversely affected the cogency of the evidence such that Bradford MDC's opportunity to defend is compromised.
35. The major event is the sad death of Mr Sanderson. He is no longer available to be cross-examined or to provide further evidence with respect to his exposure and Bradford MDC complain that they did not have the opportunity to question the deceased with respect to his evidence particularly with respect to his employment other than with Bradford MDC. However, a detailed letter of claim was sent on 8 October 2013 and there was time, albeit short, in which the defendant could have taken steps to test his evidence. Mr Sanderson has provided a witness statement which is corroborated in its most important respects by the evidence of Mr Woodhead, his depot manager. Mr Woodhead's evidence provides clear cogent evidence that Mr Sanderson was exposed to asbestos on a regular basis over at least the 12-18 months that he was depot manager. Mr Sanderson's evidence, while no longer capable of challenge, is thereby corroborated. It is notable that Mr Sanderson says that matters improved from the way they had been prior to Mr Woodhead becoming the depot manager, so that it appears Mr Woodhead's evidence about how matters were dealt with is as good as it gets. Bradford MDC decided not to take the opportunity of challenging Mr Woodhead at the hearing of this preliminary issue.
36. The Claimant's health and safety expert, Mr Plumb has set out clear and cogent evidence with respect to exposure standards and the likely levels of exposures. Mr Plumb sets out that he cannot provide a definitive day to day assessment of Mr Sanderson's exposure for comparison with exposure standards (paragraph 5.20) but says there was a requirement to reduce exposure to the minimum reasonably practicable (paragraph 5.28) and, in the absence of any control measures, from time to time Mr Sanderson's level of exposure to asbestos exceeded relevant exposure standards (paragraph 6.6). He says there "were shortcomings" in respect of reducing asbestos exposure to the minimum that was reasonably practicable (paragraph 6.8). Again, Bradford MDC did not take the opportunity to challenge Mr Plumb at the hearing of this preliminary issue, nor has it taken the opportunity of obtaining its own expert evidence.
37. While I am not making any final determinations in this matter, and I fully acknowledge the importance of not determining the substantive issues before determining this issue of limitation as those issues cannot at this stage be fully tested, on the basis of the evidence presented to me (which Bradford MDC chose not to challenge at the hearing of the limitation evidence), there is clear, cogent and corroborated evidence that Mr Sanderson was exposed to asbestos on a frequent basis while employed by Bradford MDC and that it could have been reduced. Further, even if Mr Sanderson had been exposed to asbestos in his other jobs, that would not of itself afford Bradford MDC a defence.
38. In my judgment, there has not been a loss in the cogency of the evidence so that Bradford MDC's ability to defend is compromised. While I accept that the passage of time and the transfer of housing stock to Bradford Housing Trust Limited add to the difficulties this does not undermine the central issues – whether the deceased was exposed to asbestos and whether that exposure was reduced to the minimum reasonably practicable.

Section 33(3)(c): conduct of the Defendant after the cause of action arose

39. Bradford MDC contend that had the claim been brought earlier then they would have investigated it quickly. However, the evidence contained in the statement of Lawrence Old on behalf of Bradford MDC sets out that when the letter of claim was served on 8 October 2013 (the day after the claim was issued) it took Bradford MDC until 30 December 2013 to inform its insurers who then instructed solicitors.
40. That gap of 3 months, at a time when the matter was obviously urgent, is not explained and is contrary to steps the Defendant ought to have taken pursuant to the Pre-Action Protocol for Disease and Illness Claims.

Section 33(3)(e) – delay of the deceased and the Claimant

41. The Claimant, Mrs Sanderson, cannot be criticised for causing any delay. She has continued to progress the claim under the Fatal Accidents Act on behalf of herself and her sons after the death of her husband.
42. Mr Sanderson did not act promptly from the date he knew that there was potentially a claim to be made against Bradford MDC. He was given the diagnosis in July 2010 and the primary limitation period expired in July 2013. I have dealt with that delay and the reasons for it above. The deceased acted promptly once he was advised to take legal advice by the benefits advisor in September 2013. Solicitors were instructed on 27 September 2013, Mr Sanderson was interviewed by the solicitor on 1 October 2013 and the proceedings were issued on 7 October 2013 and the letter of claim sent on 8 October 2013. Once the decision to bring a claim had been made, it was progressed expeditiously.

Section 33(3)(f) – instructions to experts

43. Experts were instructed promptly once legal advice had been taken.
44. In light of the above, I am satisfied that all the principle factors to be taken into account by reason of section 33(3) of the Limitation Act 1980 fall clearly in favour of exercising the discretion in favour of the Claimant so that it is equitable for the claim to proceed.

All the circumstances

45. As the discretion under section 33 is unfettered, all the circumstances need to be taken into account in determining whether the discretion ought to be exercised in favour of allowing the action to continue, despite having been issued out of the primary limitation period.

Strength of Case

46. I am not making any determination as to whether this claim will succeed. However, on the basis of the evidence currently before me (which Bradford MDC decided not to challenge before me or themselves call evidence to contradict) Mrs Sanderson will establish that her husband was exposed to asbestos during the time of his employment with Bradford MDC – the statement of her husband referring to the incidents of exposure is corroborated by the depot manager Mr Woodhead.
47. Mrs Sanderson can also establish, on the current evidence of Mr Plumb, that it was reasonably practicable for that exposure to be reduced but it wasn't so reduced. Bradford MDC had permission to call an expert but did not do so. The Asbestos Use, Handling and Disposal Information Manual created by Bradford MDC, and which was in existence before Mr Sanderson commenced his employment with Bradford MDC, sets out precautions that could have been taken. These precautions were not taken.
48. Consequently, while not determining the issue at this time, on the evidence available at this time, Mrs Sanderson has a strong case and good prospects of succeeding against Bradford MDC.

Overall Delay

49. While section 33(3)(a) is concerned with delay after the expiry of the primary limitation period, it is necessary for the court to also take into account the entirety of the time that has passed since the alleged exposure. Prejudice to the Defendant accruing due to the passage of time prior to the date of knowledge and to delay during the primary limitation period is relevant as part of the overall circumstances of the case (Collins v SoS for BIS [2014] EWCA Civ 717 and Donovan v Gwentoys Limited [1990] 1 WLR 472).
50. Mr Sanderson stopped working for Bradford MDC on 23 August 1987 and his alleged exposure to asbestos was during the early-to- mid-1980s. 30 years have since passed. He did not know of the diagnosis until the results of a biopsy on 19 July 2010 but the three year limitation period expired without Mr Sanderson even alerting Bradford MDC to the possibility of a claim, despite the fact that he was clearly aware of that possibility and had it in the back of his mind (as he put it in his statement). Mr Sanderson appears to have had long-standing symptoms, but those were not diagnosed earlier despite various earlier investigations.
51. Bradford MDC contends that, as a result of the overall passage of time since the alleged exposure, they have suffered evidential prejudice. Bradford MDC refers to its inability to challenge the evidence that Mr Sanderson was in fact exposed to materials containing asbestos while working for Bradford MDC and warns that it would be wrong to find that there is a strong case based upon unchallenged evidence where that strength comes about by reason of the Defendant's limited opportunity to challenge the evidence. In KR v Bryn Alyn Community Ltd [2003] 1441, 1470 Auld LJ (giving the judgment of the court) made the comment that, depending on the issues and the nature of the evidence going to them "the longer the delay the more likely, and the greater, the prejudice to the defendant". In my judgment, while the passage of time undoubtedly increases the difficulty for Bradford MDC in the investigation of these allegations, I am not satisfied that it creates a prejudice which, weighed in the balance, means that it would not be just and fair to extend time under section 33. It is incumbent upon the court to take into account the effluxion of time between the alleged exposure and the diagnosis and then the effluxion of time after diagnosis to the expiry of the primary limitation period (see Collins v SoS for BIS). However, in the circumstances of this matter, the evidence indicates that Bradford MDC knew the potential risks but, according to the evidence of Mr Sanderson, corroborated by Mr Woodhead, the steps to limit exposure to asbestos dust were not undertaken. No amount of earlier investigation by Bradford MDC could alter that situation. Further, as well as identifying Mr Woodhead as a manager during the relevant time, Mr Sanderson identified three plumbing colleagues. Bradford MDC have not indicated what, if any, steps they have taken to identify these individuals where Bradford MDC are likely to have a much better opportunity to find them than the Claimant and her lawyers.
52. I fully appreciate that in a "long tail" case such as this, the additional 2 ½ months beyond the expiration of primary limitation can cause further and real disadvantage. However Bradford MDC (or their insurers) did not act swiftly. After receipt of the letter of claim dated 8 October 2013, solicitors were not instructed until 30 December 2013. A period of nearly 3 months was therefore lost. While the enquiry of Mr Sanderson's solicitors, Irwin Mitchell, asking for the provision of supporting evidence took approximately 5 weeks, and during that time Mr Sanderson had unfortunately died, it does not appear to me that Bradford MDC were acting with the expedition that should be expected in the circumstances where it was known from the letter dated 8 October 2013 that this was an urgent mesothelioma claim and that the alleged exposure was during the 1980s.
53. The passage of time both before and after the expiration of the primary limitation period adds to the difficulties faced by Bradford MDC to challenge and defend the claim, but is not such that it outweighs the factors in favour of the Claimant.
54. The evidence called on behalf of the Claimant is compelling and cogent, showing both that Mr Sanderson was exposed and that it was reasonably practical to reduce that exposure and that was not done. Mr Woodhead, who corroborates the evidence with respect to exposure, was not subjected to challenge by Bradford MDC. The existence of Mr Woodhead's evidence limits the prejudice caused by reason of the death of Mr Sanderson as Mr Woodhead is available to be cross-examined. Further, Bradford MDC decided not to challenge Mr Plumb or to call their own evidence to contradict his findings. In my judgment, it is not possible for Bradford MDC to establish that there is such evidential prejudice that it cannot defend the claim.

Conclusion

55. It is, in my judgment, fair and just for Bradford MDC to meet the claim on its merits notwithstanding the delay in commencement of the proceedings taking into account all the primary matters set out in section 33(3) of the Limitation Act 1980 together with all the circumstances of this matter.