Limitation in disease claims

Limitation in disease claims Brian Goodwin Partner, BLM Liverpool Birmingham Cardiff Leeds Liverpool London Manchester Southampton Stockton-on-Tees

Relevant provisions under the Limitation Act 1980 relating to personal injury claims: Section 11(4) Except where sub-section (5) below applies, the period applicable is 3 years from: a. the date on which the cause of action accrued; or b. the date of knowledge (if later) of the person injured. (Section 11(5) contains provisions in relation to fatal claims 3 years from the date of death or (if later) the date of the personal representative s knowledge.) Section 14(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. Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant. Section 14(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. Section 14(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 is reasonable for him to seek. However, a person shall not be fixed under this sub-section 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. Limitation_DBG_09/09 1

Section 33(1) If it appears to the court that it would be equable 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 sub-section 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. Section 33(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, evidence adduced or likely to be adduced by the claimant 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 or (as the case may be) by Section 12 c. The conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff s cause of action against the defendant d. The duration of any disability of the plaintiff arising after the date of the accrual of the cause of action e. The extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages f. The steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. Significant reported decisions January 2008 onwards A v Iorworth Hoare (and other related cases) [2008] UKHL 6 The various appellants alleged they had been victims of sexual abuse during their childhood. Their claims were dismissed at first instance, following Stubbings v Webb. (That was a House of Lords decision of 1993 in which it had been held that victims of abuse or assault could not invite the court to exercise discretion under Section 33 of the Limitation Act as in such cases there was an un-extendable six year limitation period). Issues: Should the House of Lords depart from Stubbings v Webb? Limitation_DBG_09/09 2

To what extent, if at all, should the determination of whether the claimant has suffered a significant injury (Section 14(2) of the Limitation Act 1980) be influenced by the claimant s personal characteristics resulting either from the injury suffered or otherwise? Judgment: The time had come for the court to depart from Stubbings v Webb. Following Lister v Hesley Hall (2002), it was anomalous that victims of sexual abuse could (notwithstanding Stubbings) seek discretion under Section 33 by alleging the abuse was the result not of a deliberate act, but of some other breach of duty would definitely fall typically negligence on the part of the employer of the assailant which within Section 11. The test for significant injury includes both subjective and objective elements. The following clarification was offered by Lord Hoffman (at para. 34 of the judgment): Section 14(2) is a test for what counts as a significant injury. The material to which that test applies is generally subjective in the sense that it is applied to what the claimant knows of his injury rather than the injury as it actually was. Even then, his knowledge may have to be supplemented with imputed objective knowledge under Section 14(3). But the test itself is an entirely impersonal standard; not whether the claimant himself would have considered the injury sufficient serious to justify to proceedings but whether he would reasonably have done so. You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under Section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment Once it is established what the claimant knew and what he should be treated as having known, the position of the actual individual claimant drops out of the picture. Issues relating to his intelligence are irrelevant. Time runs, according to Section 14, from the date when the claimant had actual or imputed knowledge of certain facts, not from the date upon which he could have been expected to take certain steps. The effect on the claimant of his injuries on the issue of what he could reasonably have been expected to have done was irrelevant under Section 14. The place to consider such issues was under Section 33. Furniss v Firth Brown Tools Ltd [2008] EWCA Civ 182 The claimant worked for the defendant from 1976 to 1982 and alleged he had been exposed to excessive industrial noise. Proceedings were issued less than three years after a medical examination in 2004 had revealed that he had suffered hearing loss and tinnitus attributable to noise exposure. The claimant accepted that he was aware of significant problems with his hearing around 1996, but stated that, having visited his doctor for advice at that stage, he was told the deterioration in his hearing appeared to be due to a build up of wax. First instance decision: Around 1996 the claimant had sufficient knowledge of the phenomenon of noise induced hearing loss for him to have associated his own loss with his working environment, irrespective of the diagnosis of excess wax. Limitation_DBG_09/09 3

Judgment on appeal: The first instance judge erred in having failed to address the issue of whether the claimant ought to have known that his injury was significant. The evidence did not permit a firm conclusion to be reached as to the date by which the claimant had knowledge that his injury was significant. The claimant s knowledge at the relevant time was only that he had an intermittent condition which was essentially temporary in nature. As the burden of establishing knowledge over three years before the issue of proceedings rests on the defendant, that burden had not in this case been discharged the action should not have been struck out and the appeal was allowed. Note the obiter comments of Smith LJ: I am not sure that such problems (i.e. difficulty using the telephone and the need to have the television sound turned up) would of themselves sufficiently support the conclusion that the injury was significant in the sense of justifying the commencement of an action for damages. Field v British Coal Corporation [2008] EWCA Civ 912 The claimant started to work at the defendant s colliery in 1982. In 1985 he consulted his doctor about a perceived minor hearing loss. He underwent audiometric testing in 1998 and 2000, and mild noise induced hearing loss was diagnosed in November 2003. The claimant contended he had no knowledge of his injury until this diagnosis had taken place. First instance decision: Despite the fact that there had been an audiogram in March 1998 which detected no abnormality with the claimant s ears, the claimant had at that stage been in a position to establish that he was suffering from some impediment which could not be explained by wax or infection. He ought then reasonably to have made further enquiries. Judgment on appeal: The judge at first instance erred in arriving at apparently irreconcilable conclusion that on the one hand the claimant had a minor problem in March 1998 which ought to have been investigated, but on the other that it was not until November 2003 that the claimant had actually known that his reduced sense of hearing was due to anything other than wax and infection. The judge ought not to have attributed to the claimant the knowledge of facts that he did not actually possess. The claimant had not been aware as early as 1998 that he had suffered an injury, nor was his knowledge was such as to lead a reasonable man in his position to seek further medical advice. Consequently the claim was brought within the time allowed by Section 11. The action should not have been struck out and the claimant s appeal was allowed. White v Eon and Other [2008] EWCA Civ 1463 Having been employed by the third defendant between 1994 and 1996, the claimant issued proceedings in 2006 claiming damages for VWF and CTS. He attributed these conditions to excessive vibration from tools he used in his capacity as a fitter of lighting conductors between 1962 and 1996. The claimant s symptoms commenced in the 1980s and deteriorated until Limitation_DBG_09/09 4

shortly after he left the third defendant s employment in 1996. He mentioned his symptoms to his GP on a couple of occasions but did not specifically complain about his hands. First instance decision: Irrespective of what the claimant s GP may have been told, by 1996 at the latest the claimant clearly ought to have sought medical advice about his symptoms and he was fixed with constructive knowledge at that stage. The advice which the claimant ought to have sought would have established the necessary link between the symptoms and the use of vibrating tools. The judge also refused to dis-apply the limitation period under Section 33 and permission to appeal against that part of the decision was refused. Judgment on appeal: It was a matter of fact for the trial judge to decide what the claimant ought reasonably to have done in the circumstances. His finding was clearly open to him on the available evidence and the Court of Appeal ought not to interfere. The judge s factual findings were not only logical, but also obvious and beyond criticism. Pierce v Doncaster MBC [2008] EWCA Civ 1416 The claimant, born in 1976, was removed from his natural parents shortly after his birth and returned just over one year later. When he left home in 1990, aged nearly 15, he had suffered severe neglect and emotional and physical abuse from his parents resulting in serious mental health and behavioural problems. Proceedings were brought against the local authority alleging that he should not have been returned to parental care in 1977 and thereafter by 1979 (by which time he had suffered physical injury) he ought to have been taken into care again. First instance decision: The local authority had acted negligently. As to limitation, the claimant only discovered the local authority s breach of duty through considering his care records and these had only been obtained by him shortly before the issue of proceedings. As these records afforded that the only means open to him to acquire knowledge as to whether the defendants had been in breach of duty, the claim was not time-barred. Judgment on appeal: The judge erred in having failed to address whether the claimant might have reasonably have been expected to acquire the knowledge of his potential claim at an earlier stage. He had asked for his file several years earlier, but had failed to take up an offer on behalf of the authority to pay for his train fare for him to go and examine the records. Accordingly he had constructive knowledge of his claim at a much earlier stage. Proceedings had been issued out of time. The matter was remitted for determination of the issue of Section 33 discretion. Limitation_DBG_09/09 5

Cain v Francis: McKay v Hamlani [2008] EWCA Civ 1451 In two conjoined appeals, proceedings had been issued out of time on behalf of the claimants, both of whom had been injured in road traffic accidents. In both cases liability had been admitted. In Cain, proceedings were issued one day late. In McKay, the delay was approximately one year. First instance decision: In Cain, the judge refused to disapply the time limit under Section 33. However, in McKay, where the delay was much greater, paradoxically discretion was granted. The first instance judge in McKay took the view that the limitation defence in the circumstances (given the admission of liability) was to be regarded as a windfall and any prejudice from the loss of the windfall should be ignored. Judgment on appeal: Where a defendant had early notice of a claim and no defence on liability, the unexpected presentation of a limitation defence could properly be regarded as a windfall and the prospect of losing that defence (in the course of the exercise of Section 33 discretion) should be regarded as either giving rise to no prejudice at all or only a slight degree of prejudice. Section 33 is not concerned with prejudice resulting from the very act of disapplying the limitation period. At the heart of Section 33 is the question of whether it would be equitable (that is, fair and just) to allow the action to proceed. A tortfeasor only deserves to have his obligation to pay damages removed if the passage of time has significantly diminished his opportunity to defend himself on liability or quantum. To restore his obligation to pay damages could only be prejudicial if his opportunity to defend himself had been compromised. The fact that the claimant could have a claim against his solicitor would not necessarily mean the time limit should stand. Nor is the length of the delay a deciding factor of itself. It is the effect of the delay, rather than its length, which is key. The basic question is whether it is fair and just in all the circumstances to expect the defendant to meet the claim on its merits, notwithstanding the delay. It would only make a difference if the defendant could show it would suffer some evidential or other forensic prejudice owing to delay which occurred after the expiry of the limitation period. The court should take into account whether the defendant knew that a claim was to be made against him and the opportunities he had to investigate the claim and collect evidence. TCD v Harrow London Borough Council and Others [2008] EWHC 3048 (QB) The claimant suffered abuse as a child and her assailant was prosecuted and imprisoned. Proceedings were brought against various local authorities for having allowed the claimant to continue to live in the same house as her assailant after the first assault. The claimant was 42 years of age when proceedings were issued. Issues: When did the claimant have relevant knowledge for the purposes of Section 14 of the Limitation Act 1980? If this was prior to three years before the institution of proceedings, should the court exercise its Section 33 discretion in her favour? Limitation_DBG_09/09 6

Held: From the time she attained her majority, the claimant knew enough to make it reasonable for her to begin to investigate whether or not she had a case. The long delay in bringing proceedings caused serious prejudice to the defendants and a fair trial would not be possible. Notwithstanding the fact that the claimant s complaint was genuine and Section 33 discretion is unfettered, the courts should not lose sight of the fact that the public interest is generally served by certainty and finality. Here, the events in question took place between 27 and 30 years before proceedings were issued. There were gaps in the defendant s documentation and witnesses who were untraceable. A fair trial of the issues would not in the circumstances be possible, so this was not an appropriate case in which to exercise discretion in the claimant s favour. Hall v John Laing Plc (Bishop Auckland County Court December 2008) Within 3 years of having been diagnosed as suffering from asbestosis (resulting from employment some 45 to 50 years previously) the claimant issued proceedings. His solicitors failed to serve the claim form in time and the claim was struck out. Approximately 2½ years after the first proceedings had been issued, a second set of proceedings was issued and the court was invited to exercise discretion under Section 33. Held: The availability of an alternative remedy to the claimant naming suing his solicitors did not mean that he would suffer no prejudice if his asbestos claim were dismissed. He clearly had good prospects of success in a professional negligence claim but there was a risk that his damages would be less than he would recover from the defendant in the asbestos claim, were that claim permitted to proceed. Moreover the fact that the first claim was struck out was not the claimant s own fault. The availability of a Limitation Act defence to the defendant only arose through the failure of the claimant s former solicitors and, in the context of the entire case, that failure resulted in only a tiny delay which caused the defendant no prejudice at all. The real delay that was prejudicial to the defendant was the long delay between the end of the claimant s employment and the commencement of the original claim but that could not be attributable to the claimant as he was unaware of his condition until asbestosis had been diagnosed. Accordingly Section 33 discretion was exercised in favour of the claimant. Rogers v East Kent Hospitals NHS Trust [2009] EWHC 54 The claimant underwent a surgical amputation of her left second toe in 1996. The operation was unsuccessful and she subsequently suffered severe pain resulting in a referral to an orthopaedic surgeon in 2003. He discussed with her possible alternatives to the surgery which had taken place in 1997. She immediately sought expert medical opinion, and discovered that the 1997 surgeon had acted negligently. Proceedings were issued promptly in 2006, within three years of the 2003 consultation. Limitation_DBG_09/09 7

Issues: Did the claimant had constructive knowledge of the potential claim over three years prior to the institution of proceedings? First instance decision: That the claimant should have sought further advice about the failed amputation in the course of attending outpatients and GP appointments in 1997, 1998, and 2000. She was angry because she had undergone wholly unsuccessful medical procedures. She thus had constructive knowledge as at those dates and her claim was statute-barred. Section 33 discretion was refused. Held on appeal: The judge s conclusions were unsupported by the evidence. He erred in having failed to take into account that the claimant had been reassured that the pain would go away and the lack of any explanation to her as to why her pain was ongoing. Insufficient regard was paid to the claimant s evidence that she went along with what the doctors told her. She could not be criticised for having had no thought of litigation back in 1997 and 1998. The earliest date of knowledge was 2003. Even if it was correct that the claimant was attributed with knowledge some years previously, discretion should have been exercised as the evidence that the defendant would suffer significant prejudice was not persuasive, since comprehensive medical notes were still available and the relevant doctors had been traced. Albonetti v Wirral MBC [2009] EWHC 832 The claimant issued proceedings in relation to sexual abuse which had occurred 30 years previously. He contended he had not known at the time of the abuse that he had suffered a significant injury. The Court of Appeal held that an objective test was required and consequently the claimant had the necessary knowledge from the time of the alleged abuse and that time ran from the date he obtained his majority. Issues: Should Section 33 discretion be exercised in the claimant s favour? The claimant argued he had not acted unreasonably in having failed to commence proceedings at an earlier stage, and the subjectivity of his belief (following A v Hoare) whilst no longer relevant in relation to Section 14, should be taken into account when considering the more generous regime under Section 33. The defendant contended that so long after the event, the court could not make any meaningful assessment of the nature and extent of any alleged abuse therefore the chances of a fair trial were remote. Held: The delay was so great that it was difficult to imagine a case where there could be more prejudice to a defendant. The alleged assailant had died many years ago. The defendant had not contributed to the delay in any way. There had been no complaint made by the claimant at the time of the alleged abuse. His claim had been completely unexpected. The parties would find it extremely difficult to adduce reliable expert evidence as to the standards of the day and there would be further significant difficulties in disentangling the causative effect of the abuse Limitation_DBG_09/09 8

from other damaging events suffered by the claimant. A fair trial was simply impossible. Section 33 discretion was not exercised in the claimant s favour. Whiston v London Strategic Health Authority [2009] EWHC 956 The claimant suffered from cerebral palsy after experiencing hypoxia around the time of his birth in 1974. Proceedings were issued in 2006. The claimant had known for a long time that his disability was significant and that it had to do with lack of oxygen at birth, but contended that he did not require the relevant knowledge (under Section 14 of the Limitation Act) until November 2005. Only at that stage had his mother suggested to him that she suspected his cerebral palsy had been caused by medical negligence. Issues: Did the claimant s relevant knowledge arise within three years before the issue of proceedings? If not should Section 33 discretion be exercised in his favour? Held: It is an objective factual exercise to establish actual knowledge - that which the claimant possesses. Constructive knowledge that which the claimant might reasonably have been expected to acquire from facts observable by him or ascertainable with medical or other expert help is also to be considered objectively. Eady J suggested the following approach: I must judge by reference to a reasonable person in the circumstances of this claimant, with a comparable level of disability, and consider when such a person would have had the curiosity to begin investigating (if necessary with expert help) whether his injury could be capable of being attributed to an act or omission of the hospital staff at the time of his birth. It is well settled that personal characteristics, individual to the Claimant, are to be disregarded save in so far as they are directly attributable themselves to the injury in question Although the claimant s disability can therefore be taken in account when considering whether he would have had sufficient curiosity to begin investigating the matter, his intellect (a personal characteristic) is irrelevant. Thus this claimant had no actual knowledge before 2005. Although he had known his disability was linked to the circumstances of his birth, he was unaware that it might have been caused by the act or omission of any relevant person. It is irrelevant whether or not he knew that any of the acts or omissions involved breach of duty or not. Moreover he could not be fixed with constructive knowledge as he had not even suspected that the cerebral palsy could have been attributable to acts or omissions on the parts of the medical staff. On the question of Section 33 discretion (although hypothetical given the judge s finding on knowledge) Eady J cautioned against any assumption that discretion would be exercised in favour of a claimant, even where most relevant records are still available, and confirmed that if a fair trial is still possible, a claimant cannot expect discretion to be exercised automatically: Raggett v Society of Jesus Trust and Others [2009] EWHC 909 The claimant claimed damages for the injuries sustained as a result of sexual abuse by a teacher at a school he attended during the 1970s. The claimant alleged in 2005 he had had a revelation, suddenly remembering a string of incidents of sexual abuse committed on him by a teacher. Proceedings were issued in 2007. Limitation_DBG_09/09 9

Issues: Was the relevant date of knowledge when the claimant attained his majority or alternatively in 2005? If the former would it be equitable to disapply the limitation period under Section 33? Held: Even though, as is not uncommon in this type of case, the claimant had to a degree suppressed his memories of the abuse and had not acknowledged to himself that he had been the subject of sexual abuse before 2005, at all times he was able to remember many unsavoury incidents, and accordingly time began to run from the date of the claimant s majority. That was in 1979, 28 years before the commencement of proceedings. The length of the delay was very substantial, but not uncommon in cases of sexual abuse. The delay was not unreasonable because it was only in 2005 that the claimant recognised not just that there had been unsavoury incidents, but also that he had suffered serious sexual abuse. If he had consciously been aware of the severity of the effect of the incidents on him at an earlier stage he would have considered taking legal action. The school s ability to defend issues of liability had not materially been affected. Its position on liability was regarded at very weak. A fair trial would still be possible. Section 33 discretion was exercised in the claimant s favour. AB and Others v Ministry of Defence [2009] EWHC 1225 The claimants were veteran servicemen who alleged the defendant had failed to protect them from exposure to the fallout of radiation from nuclear tests carried out in the 1950s. They claimed to have suffered numerous illnesses as a result. The defendant s substantive case was that such illnesses were equally likely to have occurred naturally. The defendant also argued that the actions were time-barred on the basis that the claimants had had actual or constructive knowledge many years prior to three years before the issue of proceedings. Held: There was no rule (contrary to what had been suggested by the defendant) that time started to run as soon as an individual claimant had knowledge of an injury suffered which could have been capable of attributable to radiation exposure. The claimants in this case could not have had the requisite knowledge without an appreciation that the injury was capable of being caused by radiation which was both above ordinary background level and also had occurred a significant time after the fallout contamination had taken place. The first credible scientific evidence that radiation exposure could cause the kind of injuries suffered by the claimants was in 2007. However five individual claimants had at an earlier stage formed such a strong belief (that radiation has caused their illness) as to constitute knowledge. On that basis, five of the ten test claims were statute-barred. Section 33 discretion was however exercised in favour of those claimants whose claims were time-barred since there was a huge amount of contemporary documentation still in existence regarding the nuclear tests and the defendant had been aware of general issues regarding fallout radiation for many years. A fair trial was still possible. It was also taken into account that there was a public interest in these issues being ventilated and also that there could be an apparent injustice if some claims were allowed to proceed but other were not. Limitation_DBG_09/09 10

Harding v Richard Costain Limited [2009] EWHC 1348 (QB) The claimant issued proceedings on behalf of the estate of his late father who had suffered from asbestosis. The father had sought legal advice regarding a possible claim about 8 years before he died and was given positive advice regarding the civil claim. He was however told that the claim could be protracted and the damages would not be particularly high. Advice was also given regarding the possibility of entering into a CFA. The father decided not to pursue a claim. After his death, it was established at an inquest that he had died from an industrial disease and two years later proceedings were instituted. Held: It was appropriate in this case for discretion to be exercised under Section 33 to exclude the 3 year time limit. Both parties would have faced significant difficulties even if proceedings had been instituted a few year earlier owing to the fact that 30 years or so had elapsed since the last alleged exposure to asbestos and the diagnosis of asbestosis. Moreover the claimant s father had not acted unreasonably. The deceased was not an educated man and had taken the view broadly that the case carried some difficulty, the rewards were not great and he might put his life savings at risk in the process. There was no evidence that he had truly understood that the risks would be minimised if he had entered into a CFA. In any event on broad equitable principles the application of the time bar would unfairly prejudice the claimant. Accordingly the claim was allowed to proceed. AB v Nugent Care Society and Other [2009] EWCA Civ 827 The Master of the Rolls Lord Clarke gave guidance as to the correct approach to the application of Section 33 of the Limitation Act 1980 in historic sexual abuse claims in the light of A v Hoare. What had been a misconstruction of Section 14(2) in the Bryn Alyn case has now been replaced. It is no longer the case that a claimant effectively has an absolute right to proceed however long out of time to anyone able to say that he would not reasonably have turned his mind to litigation. The question is what a reasonable person would have done, not whether the claimant acted reasonably or not. Consequently, Section 14 is now to be construed more narrowly than previously. In determining the claimant s date of knowledge, the court must ascertain what the claimant knew about his injury, consider what if any knowledge about the injury should be added as imputed to him under Section 14(3) - constructive knowledge - and then decide whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify bringing proceedings. The test is an entirely impersonal standard. Specifically, the effect of the injury on the claimant s psychological state and whether he could reasonably have been expected to have brought proceedings has no relevance. However that can be taken into account in relation to Section 33 discretion as this permits consideration of whether a claimant was inhibited by the injuries he had suffered. Certain principles relating to the approach to Section 33 remained good law specifically: 1 The burden of showing that it would be equitable to disapply the limitation period is a heavy burden and lies on the claimant; and 2 The indulgence is an exceptional one to be granted only where equity between the parties demands it. However, the indulgence is only exceptional because, but for the exercise of Section 33 discretion, the claim would be time-barred, and for no other reason. The discretion remains wide and unfettered. Judges should, in considering all the circumstances, assess what evidence Limitation_DBG_09/09 11

might have been available to a defendant if it had learned of the claim at an earlier stage and consider dealing with limitation at a preliminary hearing. The strength of the claimant s evidence (as there may be little prejudice to him in having a weak claim time-barred) is relevant to the exercise of the discretion as indeed is the size of the claim, since proportionality is also relevant. Berrymans Lace Mawer LLP 2009 Disclaimer This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of Berrymans Lace Mawer. Specialist legal advice should always be sought in any particular case. Information is correct at the time of release. O:\EVENTS\SEMINARS 2009\OCCUPATIONAL DISEASE_MANCHESTER SEPT09\MATERIALS\PAPERS\FORMATTED\LIMITATION_DBG.DOC Limitation_DBG_09/09 12