The Claimant’s Burden of Proof under Section 33
Today, Sir Robert Francis QC, sitting as a High Court judge has given his judgment in the asbestos-related illness claim Fudge v Hawkins and Holmes Ltd (1), F.G. Minter Ltd (2) and Charles Winstone (Builders) Ltd (3)  EWHC 0453 (QB).
In respect of the claimant’s date of knowledge, it was common ground that the claim had been brought five and half years after expiry of the limitation period. We successfully argued that it would not be equitable to disapply the Limitation period under section 33.
The claimant, aged 81, sought provisional damages against three defendants for asbestosis and diffuse pleural thickening. The claimant’s overall asbestos related disability was 30% with a 3% risk of mesothelioma and a 2% risk of lung cancer. The claimant had worked as a subcontractor, with no evidence of employment on the HMRC for several companies from 1973 to 1978. A claim was pursued against three of the potential tortfeasors. BLM acted for the third defendant; Charles Winstone Builders Ltd a dissolved company.
All defendants pleaded limitation in their defences and a preliminary hearing on the issue of limitation alone was ordered. That hearing was held on 12 February 2018.
The claimant conceded he had knowledge of a significant asbestos related condition from September 2008.
He had first instructed Russell Jones and Walker solicitors in 2010. They advised that no insurer could be traced for an identified employer, focusing on John Morgan Construction, and closed their file in May 2011. Limited correspondence from the RJW file of papers had been disclosed but it was clear the claimant had failed to mention (or recollect) the third defendant to RJW at all during his retainer.
On the 13th May 2011, RJW had not been able to trace any insurers for the other potential defendants and had informed the claimant with ‘crystal clear advice’ on the expiry of the statutory time limit in 2011. He was offered the opportunity to seek alternative advice and the urgency to do so was emphasised. In the circumstances, he failed to seek a second opinion until four years later in February 2015 when he saw an advert for a Government compensation scheme placed by Hugh James. Proceedings were not issued by Hugh James until February 2017, some nine years after the accepted date of knowledge.
Cross examination of the claimant at the hearing failed to illicit any cogent explanation for that delay.
The judge referred to the “ well established and/or uncontroversial starting point” (KR v Bryn Alyn Community Ltd  EWCA Civ 85,  QB 1441); that, in seeking to disapply the limitation period, the burden on the claimant is a ‘heavy’ one and that Section 33 is an “exceptional indulgence” in the claimant’s favour.
In this case the judge did not find that description of a ‘heavy burden’ helpful. The issue is simply whether the claimant has satisfied the Court that the discretion should be exercised to exempt him from the normal consequences of Sections 11 and 14, having regard to all of the facts and circumstances of the case. In this case the claimant had failed to satisfy even this test. The claimant’s oral evidence as to exposure to asbestos was inconsistent with his written statements. The passage of time had made it difficult for him to recollect “hand on heart yes or no” which companies he was exposed to asbestos with. It first came to light at the hearing that he had destroyed his tax papers in 2012 which would have assisted in identifying the potential defendants and the period of time he had worked for each one.
There had been no proper explanation for the delay in the instigation of proceedings from the current solicitors, from February 2015 until February 2017.
Conducting solicitor, Raveena Mehta, gave evidence to the court as to the investigations undertaken in relation to the Third Defendant. Evidence had been obtained from a former Director’s son and two other witnesses traced who were unable to shed any light on the alleged exposure.
The former director had passed away in October 2010. Arguably, depriving that defendant of the opportunity to obtain evidence from him, he having died two years after the agreed date of knowledge. Whilst this was within the three year primary limitation period, the court could consider this a relevant factor, albeit with less weight, now that proceedings had been instigated late (Collins v The Secretary of State for Business Innovation and Skills  EWCA 717).
The claimant submitted that the prejudice to the defendants here was modest compared to the prejudice to the claimant. The Court did of course take into account the possibility that the claimant would be deprived of the possibility of proceeding to win his claim and the significance of that prejudice. The claimant’s condition called for a greater degree of sympathy, he should not be deprived lightly of the opportunity to bring his claim. However, the Court found in this instance the claimant’s evidence was weak and he had had ample opportunity to bring a claim within time. The defendants should not be required to investigate and defend a stale claim that was premised exclusively on the claimant’s faded memory. The cogency of the evidence had been aggravated by the passage of time and it was disproportionate to expect the defendant to resist such a claim. No doubt the claimant had received a worrying injury but the defendants should not be obliged to expend resources in investigating/defending a claim which ‘relies almost exclusively on the fading memory of the claimant’.
It was held that it would be inequitable and unfair to allow the action to proceed and accordingly the claimant’s application to disapply the effects of sections 11 and 14 of the Limitation Act 1980 was dismissed.
This is a reassuring win for defendants on an asbestos related illness claim, where the courts often exercise a significant degree of sympathy to the claimant. The judgment shows that the claimant is required to reach a standard of cogency in his or her evidence that the defendant can reasonably investigate before the court will consider granting their discretion under Section 33. The case highlighted the importance of thorough and detailed investigations in order to demonstrate significant prejudice to the defendant.