Mc Donnell & Anr v David Walker (Executor of the Estate of Richard Walker, deceased) [2009] EWCA Civ 1257

Mc Donnell & Anr v David Walker (Executor of the Estate of Richard Walker, deceased) [2009] EWCA Civ 1257

Facts and procedural history

  1. A PI claim was brought by the Claimants against the Defendant (Appellant), the estate of Mr Walker. Mr Walker was killed in a car accident on 24 April 2001. In that accident the Claimants (Respondents) suffered injuries. Following the inquest into Mr Walker’s death the Defendant admitted liability on December 2001.
  2. On 20 April 2004 the Claimants issued a claim form within the three year limitation period but due to their solicitors’ diarising error did not serve proceedings until 23 August 2004, one day late and contrary to CPR 7.5.
  3. The Defendant took the point of late service and the Claimants’ claim was struck out following an unsuccessful application to retrospectively extend time for service pursuant to CPR 7.6.
  4. Walkley v Forgings Ltd 1 represented the law in force at this time, and provided that a court may not exercise its discretion under s.33 of the Limitation Act 1980 to disapply the primary limitation period in a second action where the first claim had been brought within the limitation period. Consequently, any second action for the Claimants would have been statute-barred.
  5. The Defendants instructed new solicitors in 2005 who initially pursued a professional negligence claim against their predecessors.
  6. In the meantime, the House of Lords in Horton v Saddler 2 overruled Walkley finding that the court could extend time for a second action under s.33 providing it was equitable between the parties to so do.
  7. In light of this change in the law the Claimants brought a second, much larger claim against the Defendant. In April 2008 they successfully applied to disapply the limitation period under s33. The Defendants appealed

    8. The Court of Appeal allowed the Defendant’s appeal holding:

  8. The judge did not correctly identify the period of delay, which should have included the whole period since expiry of the limitation period and not just that which followed the decision in Horton in 2006;
  9. The judge erred in his approach to forensic prejudice. Unlike in Horton where there was no forensic prejudice to the Defendants in the instant case there was. The Claimants’ original claim was limited to £15,000. Seven years later the first Claimants’ claim was made in excess of £300,000 and the second Claimant’s claim was limited to £300,000. Correspondingly an evidential lacuna had arisen; reports relating to general damages were only received three years after the accident, no psychological reports were received then and no claim for loss of earnings was received at all. The Defendant’s insurers were at a clear disadvantage, effectively having to investigate the claim from a standing start.
  10. The issues the court should have considered were all the circumstances including (i) the cause of the delay, (ii) whether the delay was excusable, (iii) whether a fair trial was still possible. In weighing these factors the Court of Appeal refused to disapply the limitation period, finding that forensic prejudice to the Defendant was greater than the prejudice to the Claimants in proceeding in a professional negligence claim against their first solicitors.

    11. Comment

  11. This ruling highlights the importance of a Claimant proceeding with an action in a timely fashion as technical points on limitation can still succeed if prejudice to the Defendant outweighs that to the Claimant.
  12. The decision provides a useful warning to Claimants that evidential deficit for the Defendant is a powerful factor that may weigh against a claim in the courts consideration of a s.33 extension in a second action.
  13. If there is forensic prejudice to the Defendant caused by inexcusable delay and where there is little prejudice to a Claimant in an action against his solicitors the in light of this decision the court seems more likely to favour a Defendant’s limitation defence. The position distinguishes the positions in Horton and Cain v Francis3 where there was little real prejudice to the Defendants.

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