Two separate High Court judgments handed down last week concerning historic claims have produced different outcomes in relation to limitation, in particular application of the Court’s section 33 discretion.
In Robert Mervyn Pearce & Others v (1) The Secretary of State for Business, Energy and Industrial Strategy, (2) Coal Products Limited, and (3) National Smokeless Fuels Limited  EWHC 2009 (QB) Mr Justice Turner has held that the Court should exercise its section 33 discretion in respect of a claim for Chronic Bronchitis (CB), despite the deceased having passed away in 1997 and having had actual knowledge of his injury in 1983.
In Kimathi & Ors v The Foreign and Commonwealth Office  EWHC 2066 (QB) Mr Justice Stewart has dismissed the first of 25 test cases in the Kenya Emergency Group Litigation alleging abuse during the Kenyan Emergency in the 1950s, declining to exercise his discretion in the claimant’s favour under section 33.
One potentially important distinction between the cases is that in Pearce breach of duty had been admitted, whereas in Kimathi breach was still in issue. This will likely have had a significant bearing on arguments as to prejudice and Turner J’s decision to exercise his section 33 discretion.
Background - Pearce
The Pearce group litigation was brought on behalf of a large number of former employees of British Coal, alleging that they had contracted various occupational diseases which have been caused by exposure to coke dust and fumes at work.
Originally, there were eight lead claimants in the GLO, but six of those claims had either compromised or discontinued and consequently the GLO issues had all fallen away by the trial date.
The two remaining lead claims related to CB and were brought by two claimants: Mr Duck and the widow of the deceased Mr Nicholls, on behalf of his estate. Breach of duty had been admitted by British Coal pre-trial, and the only issues in contention were legal causation in both claims, and limitation in the claim brought by Mrs Nicholls.
Mr Justice Turner found that Mr Duck had never suffered from CB on the basis of his evidence.
He then considered whether Mrs Nicholls’ claim was time-barred on the basis of the Limitation Act 1980 and using the guidance set out in Carroll v Chief Constable of Greater Manchester Police  4 WLR 32 in respect of section 33.
In Carroll Sir Terence Etherton summarised the application of section 33 discretion in 13 guiding principles. These included the stipulation that the essence of the proper exercise of section 33 discretion is a balance of prejudice, and the burden is on the claimant to show their prejudice would outweigh that to the defendant.
The guidance also notes that the burden on the claimant under section 33 is not necessarily a heavy one, and how heavy or easy it is for the claimant to discharge the burden should depend on the facts of the particular case. Furthermore, while the ultimate burden is on a claimant to show that it would be inequitable to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the defendant is likely to be less cogent due to the delay is on the defendant.
Mr Nicholls was employed by British Coal at Nantgarw from 1968 to 1985, and died of lung cancer in 1997. By 1983, both Mr Nicholls and his wife, on her account, were attributing his coughing to exposure to fumes at work, meaning the delay in the case was in the region of 25 years. The defendants argued that they were prejudiced by the delay to the extent that:
i) Mr Nicholls was unable to give evidence about his alleged symptoms as he had passed away in 1997; and,
ii) His hospital records had been destroyed eight years after his death in accordance with the hospital’s policy.
Despite this, Mr Justice Turner was satisfied that the claimant (ie Mrs Nicholls) had discharged the burden of showing that her prejudice would outweigh that to the defendant if the limitation period were not disapplied. In particular, he was satisfied that, despite some evidential deterioration over the years, the passage of time had not significantly diminished the defendant’s ability to fight the claim on either liability or quantum. Mr Justice Turner concluded that it was more likely than not that Mr Nicholls suffered from CB, and awarded Mrs Nicholls £15,853 in damages.
A different outcome in respect of section 33 was reached in the separate High Court judgement of Kimathi & Ors v The Foreign and Commonwealth Office  EWHC 2066 (QB); a group litigation by over 40,000 ‘Mau Mau’ members and their families against the UK government alleging abuse during the Kenyan Emergency in the 1950s. The claim was dismissed, with Mr Justice Stewart declining to exercise his discretion in the claimant’s favour under section 33. Like Mr Justice Turner, Mr Justice Stewart took into consideration the principles set out in the Carroll judgment in respect of section 33 discretion. Notably, breach of duty had not been admitted in Kimathi. This demonstrates that the issue of limitation should be assessed on the unique facts of each individual case, and that the application of section 33 may vary significantly from case to case.
The Pearce judgment has implications for those defending disease claims which are clearly time-barred. Despite the claim being decades out of time and the claimant having passed away, the judge still exercised his discretion under section 33 to disapply the limitation period.
However, Pearce has a number of distinguishing features, not least that an admission had been made in relation to breach of duty. Given this fact, it inevitably becomes more difficult to demonstrate prejudice and in turn dissuade the Court from exercising its section 33 discretion. This is an important reminder to defendants to think carefully before making any admission as to breach of duty where limitation is still in issue.
Co-authored by BLM's Edward Sainsbury, Partner, and David Healey, paralegal.