NO:  B3/2002/1289
Neutral Citation Number: [2002] EWCA Civ 1437
IN THE SUPREME COURT OF JUDICATURE               
COURT OF APPEAL (CIVIL DIVISION)
 (Application of Claimant for Permission to Appeal)
  
Royal Courts of Justice
Strand
London WC2

Thursday, 12th September 2002
B e f o r e :

LORD JUSTICE WALLER

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PHILIP SLAVEN

(Claimant)

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GREENWOOD NURSERY (A FIRM)

(Defendant)
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HG
Telephone No: 0171-421 4040 Fax No: 0171-404 1424
(Official Shorthand Writers to the Court)

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MR PRIOR appeared on behalf of the Claimant
The Defendant did not appear and was not represented

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J U D G M E N T
Thursday, 12th September 2002
1.	LORD JUSTICE WALLER: This is a renewed application for permission to appeal, I having refused permission on paper.
2.	The claimant was employed as a nurseryman and he has brought an action against his employer claiming personal injury (injury to his back) as a result of the system employed by the employer during the years of his employment.
3.	Judge Morgan decided that some time in 1996 the claimant had knowledge of his injury and by implication it was a finding that at that stage the claimant knew that he was suffering injury which was sufficiently serious to justify the instituting of proceedings. The claim on that basis was issued outside the limitation period. All that remained for the claimant to do was to make an application under section 33 for an extension of time and that extension of time was refused by the District Judge.
4.	It is, of course, well known that when a judge exercises his or her discretion under section 33, it is very difficult to challenge the exercise of that discretion in the Court of Appeal unless one can show either that the judge was plainly wrong or that the judge has in some way misdirected himself or herself.
5.	I originally was unconvinced that there was an argument with any reasonable prospect of success that the District Judge had misdirected himself in this case. What is more, it seems to me that the District Judge had correctly assessed the claimant's case as a very difficult one, having regard both to the medical evidence and the engineer's evidence that there was before the District Judge. However, Mr Prior has now persuaded me that there is an argument with a reasonable prospect of success that the judge did misdirect himself.
6.	The court, in exercising its discretion under section 33, has to have regard to all the circumstances of the case, but in particular to certain matters that are listed under section 33(3)(a) to (f), and the first point taken by Mr Prior was that the District Judge, in considering 33(3)(a), which relates to “the length of and the reasons for the delay on the part of the plaintiff” looked at the delay prior to the expiration of the Limitation Act and not simply at the delay post the expiry of that limitation, and he showed me the authority of Thompson v Brown, in which Lord Diplock made clear that the delay which is referred to in paragraph (a) is the delay “after the primary limitation period expired”. That is at page 751(b) of the report.
7.	At first, I wondered whether Mr Prior was right that the judge had got that wrong, because it seemed to me that the general phraseology of the judge, which certainly did criticise the claimant for delay prior to the expiry of the limitation period, could be said to have been a general consideration of whether the claimant acted promptly under section 33(3)(e), but as Mr Prior developed his submissions and as in particular he developed his submissions as to matters which the District Judge, he says, did not take into account in favour of his client, it seemed to me there was more force in Mr Prior's point.
8.	The position of the claimant was that he left the employment in September 1998. Thus, even looking at delay prior to the expiry of the limitation period, he can say, as he did say, that he was disinclined to bring proceedings against his employer up until that time. So on any view, there is some excuse for delay up to that period.
9.	Then what appears to have happened is that he instructed solicitors in January 1999, so there is not any serious delay, even at that stage, and that may be at a stage prior to the expiry of the limitation period. Then the history thereafter is that the firm that he originally went to was dissolved. In March 1999, the file was passed to a different firm, who applied for legal aid. At first, that was refused. Then it was ultimately granted in April 1999. It seems quite clear at that stage that the defendants were aware of the claim being made because they made an offer to pay the claimant £650 at that stage, but the claimant refused that. The claimant went to see his medical expert and reports were obtained in July 1999, and the report was prepared in October 1999 and immediately thereafter the firm now instructed sent a letter before action.
10.	At that stage, the reaction of the defendants and their insurers was not to suggest that the limitation period had expired and there was nothing more for them to consider. The insurers indeed on 14th February 2000 requested a three month period in which to make their enquiries, and it was in that context that the engineers were instructed in March and that an inspection took place some three months later on 8th June.
11.	It is right to say that the particulars of claim were not ultimately issued until June 2001, but it seems to me that certainly an argument can be powerfully put to the Court of Appeal that much of the delay post-expiry of the limitation period -- that is during 1999 through 2000 -- is understandable and not down to any fault of the claimant. It may be said that there was some fault on the part of the solicitors, but again it is arguable that that is not a fault for which the claimant should be held responsible.
12.	If one then furthermore addresses the question as to the effect of that delay, and asks again, directing one's attention to the delay post-limitation period, post 1999 or some time in 1999, in relation to the cogency of the evidence, once again, it seems to me that Mr Prior has a point when he says that this is a case about the system of work which never changed. The defendants knew their system, and indeed they knew about this claim, certainly in April 1999, and they probably knew about it before, since the claimant had been making complaints prior to that time, although he had not issued proceedings.
13.	So, as it seems to me, there is an argument based on the District Judge misdirecting himself. I should, though, add that although I am on that basis prepared to give permission to appeal, I am concerned about the strength or otherwise of the claimant's case. It seems to me he may be able to produce some further evidence to increase his chances, but at present the medical evidence is not strong and certainly the engineering evidence presently put in does not assist his case, although it is said by Mr Prior that some other engineer may be able to give better evidence than is there at present.
14.	What I would suggest is that, before further costs are expended on this appeal, it would be appropriate for the appellant and the respondent to take advantage of the alternative dispute resolution scheme which is available in the Court of Appeal, so that if possible further expenditure on litigation can be avoided, but with that observation, I grant permission to appeal.
15.	MR PRIOR: Does your Lordship therefore grant the application for an extension of time?
16.	LORD JUSTICE WALLER: Yes, certainly.
17.	MR PRIOR: I think, your Lordship, either costs reserved.
18.	LORD JUSTICE WALLER: Costs reserved, certainly. Thank you very much, Mr Prior.