B3/2002/1289 
Neutral Citation Number: [2002] EWCA Civ 1970
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM BIRKENHEAD COUNTY COURT 
(DISTRICT JUDGE MCCULLAGH)
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 19 December 2002
 B E F O R E:

LORD JUSTICE JUDGE 
 
MR JUSTICE SULLIVAN 
 
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PHILIP SLAVEN 
Claimant
-v-
 
GREENWOOD NURSERY (A FIRM)
  
Defendants 
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(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR C PRIOR (instructed by DP Roberts Hughes & Denge, Ellesmere Port CH 65 0AN) appeared on behalf of the Appellant
,R P BLAKESLEY (instructed by Merricks, Essex CM2 0LG)  appeared on behalf of the Defendants
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J U D G M E N T 
(Approved by the Crown) 
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Crown Copyright©
                                  Thursday, 19th December 2002 

1.	LORD JUSTICE JUDGE:  This is an appeal from the decision of District Judge McCullagh at Birkenhead County Court on 4 April 2002 at the hearing of a preliminary issue on issues arising under section 33(3) of the Limitation Act 1980.  
2.	The background is this.  From the mid-1980s the claimant was employed by the defendants as a gardener/nurseryman at their premises in Willesden.  He started work for them when he was still in his teens.  Now 35 years old, he has not worked since September 1998.  He claims damages for injuries to his back consequent on the alleged negligence and breach of statutory duty of the defendants, his employers.  He began proceedings on 28 June 2001.  
3.	The limitation issue arose because the defendants contended that the claimant knew full well for some time before June 1998 that he had sustained the significant back injury which forms the basis of his claim, and that it was attributable to conditions at work.  
4.	At a hearing before His Honour Judge Morgan on 25 January 2002, after hearing evidence from the claimant, the judge decided that the date when he possessed knowledge for the purposes of sections 11 and 12 of the Limitation Act 1980 was well before 28 June 1998, much more likely to have been during 1996.  
5.	The hearing before District Judge McCullagh was concerned with the exercise of the court's discretionary powers under section 33 of the 1980 Act.  He declined to extend time, hence this appeal.  
6.	It has not been possible for us to discover why the two issues, normally at any rate, directly linked, and on the facts of this case certainly linked, were heard separately.  Of itself that does not matter beyond recording that it looks to have involved an unnecessary waste of time and costs, but it has this effect in relation to the judgment currently under appeal.  The hearing before the district judge proceeded on the basis of the judgment made by Judge Morgan, and therefore inevitably did not require any focus on the issues already heard and decided by him.  There is another problem, which is that we have not had the advantage of a transcript of the judgment.  What we have seen is a note made by counsel for the appellant following the hearing, and that, we are told, is an agreed note made by counsel on both sides which was submitted to the district judge and has been approved by him.
7.	It is a fact of the case that there has been disagreement between counsel, who have obviously been trying hard to see whether they could agree, but in the end have been unable to do so on one aspect of the case in relation to legal aid.  But it also means that we do not have the benefit which it would have been helpful to have had of a full transcript of the judgment corrected as the district judge thought appropriate, so that we could see the full reasoning and the way in which his judgment developed.  That is of some significance here in relation to the first criticism, and I believe the main criticism advanced, of the judge's reasoning process.  As to the reasons for the breakdown, as we understand it, when investigation was made at Birkenhead County Court for the tape recording, it turned out that the equipment was faulty.  In any event we do not have a copy of the transcript of judgment.
8.	The district judge began his judgment by reciting some of the relevant dates.  As I said earlier the employment with which he was concerned began in 1983.  In 1986 the claimant became a regular full-time employee.  In 1996 according to the findings by Judge Morgan, the present cause of action accrued.  The claimant had contested an entry in the medical reports for 1994 that he attributed the back pain of which he was then recorded as complaining about to his work, asserting that his severe back pain had started in 1996.  In June 1997 he was put on light duties after his general practitioner had made an entry in the records which, according to Judge Morgan, taken logically, meant that he knew that his back pain was connected with and attributable to conditions at work.  Judge Morgan also referred to a number of such notes from the general practitioner between 1994 and July 1998 culminating in one dated 6 July which related back four weeks.  He concluded that the claimant appreciated long before June 1998, that the problems with the claimant's back were significant.  Indeed, by way of record, at the hearing before District Judge McCullagh the claimant gave evidence and asserted that he had been complaining about his back problems to his employers continually from about 1986 onwards.  On this basis, of course, the inquiry into whether he had indeed made any complaints, and if so when and in what circumstances, was one which would have involved protracted investigations going back for many years.  
9.	The timetable prepared by Mr Prior recites some further dates.  The claimant left the defendant's employment in September 1998 signing off with back pain.  He has been unemployed since that date.  He went to solicitors in January 1999.  The firm which he consulted was shortly afterwards dissolved so that the file went to new solicitors in March 1999.  An application for legal aid was successful in April 1999 and at that stage the defendant offered the claimant £650 in settlement.  
10.	In October 1999 a consultant neurosurgeon, Mr Varma, was consulted.  He spoke of degenerative back pains, adding that given the claimant's description of his job it is very likely that this was a contributory factor to the development of his back problems.  
11.	A letter was sent at the end of November 1999.  The defendants' insures asked for further time to make inquiries.  In May 2000 there was a letter from the claimant's solicitors which alerted the defendants to the fact that the back problems about which the claimant was complaining had related back to 1996.  In July 2000 an inspection took place.  It was an inspection on behalf of both parties of the defendants' place of work.  The subsequent report includes this passage: 
"From my consideration of the lifting operations undertaken by [the claimant], I am of the opinion that the risks associated with the majority of them were minimal and so small as to be disregarded.  The one exception is that of loading plants into the boxes for shipment.  There is, in my opinion, a small risk of injury while placing plants in the boxes to form the bottom two layers of the pack.  This involved adopting a stooped back posture to reach over the edge of the boxes...  To put this risk in perspective it is similar to that of stooping to tie one's shoelaces and to carry out weeding."
12.	The claimant has not produced and did not produce before the district judge, any further report.  We were much pressed by the fact that in December 2000 his solicitors wrote to the defendants' solicitors asserting the need for a further inspection during a busier period than July time; in other words that there should be further inspection, and presumably report, during what is described as the seasonal potting period.  The claim was eventually issued on 28 June and served in early July, and the proceedings thereafter focussed on the Limitation Act issues.  
13.	The district judge had recited most of the relevant dates, and obviously it was unnecessary for him to set them all out.  He then, on the face of the agreed judgment, turned to consider all the circumstances including, of course, the factors expressly requiring the attention of the court under section 33(3)(a) to (f) inclusive.  It is unnecessary for the purpose of this judgment to read out those provisions.  
14.	It is submitted by Mr Prior that the judge was wrong in respect of very many of the different aspects of the judgment, both in relation to the factors which expressly  require consideration, and related matters, in that the judge overlooked aspects of the case which should have led him to exercise his discretion in favour of the applicant.  Perhaps the first matter that needs attention is the first argument adopted by Mr Prior on behalf of the claimant founding himself on the decision of the House of Lords in Thompson v Brown [1981] 1 WLR 744 at 751, where Lord Diplock, giving a speech with which each member of the House of Lords agreed, explained that the delay referred to in subsection (3)(a) and (b) must be the same, and that this means delay after the expiry of the primary limitation.  Lord Diplock said: 
"It is the length of this delay (in the instant case 37 days) and the reasons for it that matter under paragraph (a)."   
15.	Mr Prior invited us to read one passage in the judgment as amounting to a misdirection.  On our page marked C of the approved judgment this passage appears: 
"As to s33(3)(a), the Defendants point to the fact that the Claimant was employed from 1983 or 1986, and was complaining continuously from the very start, and he confirmed that today.  And in 1996 he knew that the injury was significant and yet he did nothing.  Even accounting for that delay proceedings were not issued until 2001.  So there was delay in consulting, and a delay in issuing."  
16.	For the avoidance of doubt I should add that in the course of the discussion with Mr Prior I took the point that that text was different to the text of his own note of judgment.  In making that point I imply no criticism of Mr Prior, for the judgment which we have to focus on is the judgment which was agreed between counsel from their joint notes and recollection, and approved by the judge.  
17.	The difficulty with the contention on behalf of the claimant, is this.  It seems clear from pages B and C of the  approved judgment that the way in which the judge decided to address the issues which expressly require consideration under section 33(3) was first of all to analyse the contentions advanced on behalf of the claimant.  Thus the text reads: "I have to consider all the factors under section 33(3):"  It is not necessary to read out the judge's analysis of it, but it is interesting to note that in relation to paragraph (a) he refers to "the Claimant says", as he does in relation to paragraph (b), and then again paragraph (c).  Paragraph (d) he regards as irrelevant and no point it taken about that.  As to paragraph (e) he again refers to "the Claimant says", and finally in paragraph (f) he again says "the Claimant says".  It is perfectly clear that in those passages in his judgment the district judge was recording the matters put before him for consideration by the claimant.  
18.	The passage which forms the basis of the criticism advanced by Mr Prior begins with the words "as to s33(3)(a)", and continue, "the Defendants point to the fact..."  In the next paragraph in relation to the cogency of the evidence the record reads: "The Defendants says that..."  In the following paragraph in relation to whether there was any hampering in the issuing of proceedings the judgment records: "the defendants deny..."  It seems perfectly plain to me that those passages were a direct account by the district judge of the various contentions which the defendants were pointing to in answer to the claimant's contentions about the circumstances expressly to be considered.  It also seems to me that although the words "the Defendant says" or "the Defendants point out", do not appear in the following paragraph, the passage which begins "as for the Claimant's actions...", that, too, is a record of what the defendants were contending.  
19.	This approach to the contention on behalf of the appellant that the judge misdirected himself about the relevant delay for the purposes of section 33(3)(a) is reinforced by considering the way in which the argument for the respondent drew distinctions between the relevant periods of delay.  The judge was plainly focussing on the facts relating to knowledge which Judge Morgan had found at the first hearing.  In summary, it is not possible to conclude that the judge misdirected himself by treating the passage in the judgment beginning, "as to s33(3)(a)", as a reflection of his judgment, rather than the judge's attempt to summarise the contentions put before him on this issue by the defendant.  
20.	The judge's reasoning begins with the words: 
"It is trite law that there is the balance of prejudice, one against the other."  
21.	The judgment records the limitation defence and the deprivation of the defendants of that defence, and recognises that the claimant will have an equal certainty of losing what he described as "a good claim", bearing in mind that the judge was "not convinced of there being a claim against his lawyers".  
22.	Having recited the circumstances requiring express consideration, the judge turned to additional factors.  It is argued that he was wrong in the weight that he gave to the defendants' loss of the limitation defence, and the excess weight that it is said that he placed on the evidence as it stood before him on the issue of liability.  In fact the judge plainly had in mind, and reflected on, the strengths and weaknesses of the claim; and plainly, in his own words, reflected carefully on what he described as "the balance of prejudice".  He noted that the claimant was unhappy with the engineering evidence to date, and that the evidence was far from helpful to the claim.  He reflected on that issue in the context of what the claimant himself had said, and the medical evidence which he regarded as not giving quite the measure of support to the claim which it was contended it should bear.  
23.	The judge is criticised for not sufficiently taking into account that the claimant had intimated an intention to seek a further inspection of the premises and presumably a further expert report.  He was not presented with any further evidence.  He was not invited to adjourn the hearing for the purposes of a new or additional inspection.  In my judgment it was not unreasonable for the judge not to speculate on what further evidence might be produced and, so to speak, treat it as if it was bound to be compelling evidence to sustain the claimant's case.  
24.	The other criticisms of the judge are made in different ways in a tenacious argument on behalf of the claimant in relation to legal aid and the judge's alleged misdirection.  The text of the agreed note reads: 
"The legal aid point cannot help.  The prospect of recovering any costs against the claimant is unlikely."   
There is a footnote to that passage, which reads: 
"This is the one passage over which the parties differ.  The wording here is that contended for by the Claimant."   
The defendants' counsel's note reads: 
"The legal aid point cannot help defendants.  Prospects of their recovering any costs is unlikely."   
The defendants' counsel's impression at the end of the hearing was that the district judge had rejected his argument that the defendant was prejudiced because the claimant was in receipt of legal aid, so that were the claim to fail the defendant would be unlikely to recover its costs.  
25.	In my view it is not possible to conclude, nor fair to the judge to conclude, on the basis of a disagreement between counsel about what he said in his judgment, that he fell into error.  According to both sides the other side's version of that passage in the judgment was inaccurate.  It does not provide any sufficient basis from which to form the conclusion that the judge was wrong or misdirected himself.  
26.	Mr Prior drew our attention to a number of matters which he says the district judge overlooked.  He was troubled, and contended that the district judge was wrong to conclude that the delay was considerable.  Any consequent prejudice to the defendants was minimal in what was a repetitive system of work which had already been examined in July 2000, so that the system had been demonstrated to the expert.  The judge knew, as we do, what the expert examination had shown.  
27.	Mr Prior further contended that any delay after his client had been to solicitors was not culpable on his part, and it was wrong for the claimant to be blamed for any omissions by his solicitors.  
28.	In my judgment, although the judgment does not spell out the answer to every one of those points now contended for by Mr Prior, it is clear from the judgment and the material which has been put before us, that these issues were before him and that the district judge considered them all.  For example he referred to the strength of the case.  He dealt with the engineering evidence.  He ended his judgment by saying this: 
"In my view that evidence [the medical evidence], plus the engineering evidence, plus the delay [means that the balance of prejudice weighs more heavily against the Defendant].  I therefore decline to extend time under the Act."
29.	I recognise the importance to the claimant of the decision reached by the district judge.  It represents the end of any possibility of successful litigation against his former employers.  But in my judgment, despite Mr Prior's argument, there are no grounds here for impugning the exercise of District Judge McCullagh's discretion under section 33 of the 1980 Act.  This is not a situation in which on any view this court could substitute its own view and exercise its own discretion.  
30.	In my judgment this appeal should be dismissed.
31.	MR JUSTICE SULLIVAN:  I agree.  Given His Honour Judge Morgan's decision there was no issue before the district judge as to the extent of the delay for the purposes of paragraph (a) in subsection 33(3).  Under that subsection the district judge was required to have regard to all the circumstances of the case and in particular to the factors listed in paragraphs (a) to (f).  There can be no doubt that he did have regard to those factors.  He expressly referred to the subsection and then proceeded to summarise the parties' respective submissions in relation to those factors.  Having done, so he then carried out the necessary balancing exercise, having regard to all the circumstances of the case.  Those circumstances properly included his assessment of the strength of the claimant's case upon the engineering and medical evidence as it stood.  
32.	On behalf of the claimant Mr Prior contended that the district judge gave too much or insufficient weight to certain matters.  But the weight to be attributed to the various circumstances of the case was for the district judge to decide.  This was very much an exercise of discretion; and I agree with my Lord that it has not been demonstrated that the district judge erred in principle in the exercise of that discretion.  
33.	For those reasons I, too, would dismiss this appeal.   
(Appeal dismissed; Claimant do pay the Defendants' costs, such costs to be set off against such damages and/or costs as the Claimant may be awarded against the Defendants in this action, save as aforesaid, determination of the amount of the Claimant's liability to pay those costs be postponed until further application by the Defendant to the District Judge).