horton v. Sadler and another
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
horton (Original Appellant and Cross-respondent) v. Sadler and another (Original Respondents and Cross-appellants)
 UKHL 27
LORD BINGHAM OF CORNHILL
Limitation in personal injuries actions
This is supplemented by subsection (3), which provides:
He then considered the matters listed in section 2D(3) and concluded, in agreement with Waller LJ, that Mr Walkley's application could not succeed and the second action should therefore be dismissed.
Lord Edmund-Davies and Lord Keith of Kinkel agreed with both Lord Wilberforce and Lord Diplock. So Mr Walkley's second action was dismissed.
Later authority of the House
Court of Appeal authority
The authority cited by the Law Commission is Walkley.
The appellant's criticism of Walkley
The section 33 discretion
Article 6 of the European Convention
LORD RODGER OF EARLSFERRY
(a) The prejudice to the claimant by the operation of the limitation provision and the prejudice to the defendant if it is disapplied tend, as Parker LJ pointed out in Hartley v Birmingham City District Council  1 WLR 968, 979, to be equal and opposite. He regarded the effect of the delay on the defendant's ability to defend as being of paramount importance.
(b) In Das v Ganju  Lloyd's Rep Med 198 at 204 and Corbin v Penfold Metallising Co Ltd  Lloyd's Rep Med 247 at 251 the Court of Appeal expressed the view that there was no rule that the claimant must suffer for his solicitor's default. If this is interpreted, as it was in Corbin, as meaning that the court is not entitled to take into account against a party the failings of his solicitors who let the action go out of time, that could not in my view be sustained and the criticism voiced in the notes to the reports of Das and Corbin would be justified. The claimant must bear responsibility, as against the defendant, for delays which have occurred, whether caused by his own default or that of his solicitors, and in numerous cases that has been accepted : see, eg, Firman v Ellis  QB 886, Thompson v Brown  1 WLR 744 and Donovan v Gwentoys Ltd  1 WLR 472. The reason was articulated by Ward LJ in Hytec Information Systems Ltd v Coventry City Council  1 WLR 1666, a case of striking out, when he said, at p 1675 :
(c) That said, whereas the claimant will suffer obvious prejudice if the limitation period is not disapplied, this may be reduced by his having a cause of action in negligence against his solicitors. The extent of that reduction will vary according to the circumstances, but even if he has an apparently cast-iron case against the solicitors the factors referred to by Lord Diplock in Thompson v Brown at p 750 require to be borne in mind.
(d) Judge Cooke was urged to agree with the proposition accepted in Morris v Lokass (2003, unreported), that the loss should fall on the insurers who had accepted a premium for the risk which has caused the claimant the relevant loss (the solicitor's professional liability insurers) and not on the MIB who have collected no such premium. The judge expressed himself as unpersuaded by that argument, and in my view he was correct in this. The MIB entered into their first agreement with the Minister of Transport in 1946 and the subsequent agreements for their own good reasons, and for the purposes of considering applications of the present nature they should not be regarded differently from motor insurers or professional liability insurers.
LORD BROWN OF EATON-UNDER-HEYWOOD