Tyers v Aegis Defence Services (BVI) Limited and Ors [2023] EWHC 896 (KB), High Court, Spencer J

Introduction:

This is an example of a case which was clearly out of time for primary limitation, and so concentrates solely on whether to exercise the discretion allowed under section 33 of the Limitation Act 1980.  The facts are unusual, but it is always useful to see how courts conduct this exercise.

Facts:

Mr. George Tyers, a South African national, died on 29 May 2012, while carrying out security work for the Defendants at an Oil Field near Basra, Iraq. He went for an early morning jog around the perimeter of the camp, which was still under construction. While entering the inner perimeter through a double steel sliding gate, weighing some three tons, the gate toppled over onto him, crushing him and causing fatal injuries.

Exclusive jurisdiction of the English courts was set out within the contract of employment.

The claim was not issued, though, until March 2019, almost seven years after the accident and so almost four years after the expiry of the limitation period.  Reliance on section 33 of the Limitation Act 1980 would be necessary for the claim to proceed.

Proceedings were not actually served on the Defendants until August 2020, which was their first notification of the claim.

The claim was bought by the deceased's wife on behalf of her husband's estate under the Law Reform (Miscellaneous Provisions) Act 1934, and for herself and her daughter (a minor) under the Fatal Accidents Act 1976.

An issue for the Judge was the whether the fact that the daughter’s claim which would inevitably be tried (she was a minor, so her claim would be in time in any event), was a relevant factor under section 33 in considering the claim for the estate or for the Claimant herself.

The court tried the issue of limitation as a preliminary issue.

Date of Knowledge - the Claimant’s arguments

A report into the accident was concluded by the Defendants in September 2013.  It was argued that the Claimant’s date of knowledge was not until 01 November 2013, after she had time to read and digest the report (although the letter of claim stated that it was the date of death).

Period of Delay

There was a period of delay on behalf of the Claimant who was initially dealing with legal proceedings in Iraq.  She did not contact English lawyers until September 2016 (of course by this stage it was already more than 3 years since the death). 

A letter of claim was sent in January 2017, without response.  Further documents were sent without response.  The claim was not issued until March 2019.

The Defendants never received any pre-action correspondence.  It subsequently turned out that they had moved premises in February 2015, and so correspondence had inadvertently been sent to the wrong address.

The Defendants’ arguments

The Defendants argued that:

1. The Claimant had received an insurance payment of $200,000 and so was in a financial position to instruct solicitors at an earlier stage.
2. The Claimant had, in fact, had some help prior to instructing English lawyers (including from lawyers based in Iraq, who had been dealing with Iraqi proceedings into the incident).
3. Between the date of death and instructing English lawyers there had been no significant increase in her state of knowledge as to the position of the Defendants.
4. Once English solicitors were instructed in October 2016, there was no good reason for further delay until 2019.
5. Witnesses from the era were missing; documents were missing; and memories had faded.
6. No blame could rest with the Defendants.

The Judge’s consideration of section 33

The Judge found that all the factors within section 14 (1) of the Limitation Act 1980 (for date of knowledge) were present at the time of death.  The 3-year period allowed for any investigations to be undertaken, and for the necessary detail to be obtained in order that Particulars of Claim may be drafted.  The knowledge necessary for pleadings was not the same as knowledge considered under the Act.

The Judge further found that it was not a relevant factor to be considered under section 33 that the claim of they daughter would proceed in any event.  The court is asked to consider fairness when considering section 33, and the fact that limitation does not run for a case of a minor (which may be unfair, but not something about which the Defendants could complain) does not assist the court in considering fairness under section 33 for the other claims.

However, the judge did use his discretion under section 33 of the Limitation Act.

He considered the matters set out within paragraph 42 of Carroll v GMP [2018] 4 WLR (which is of course now the ‘go to’ paragraph for consideration of section 33).

The Judge found that:

1. There was little or no dispute as to the Deceased’s cause of death;
2. After the accident the Defendants undertook their own investigation which preserved witness evidence from the time;
3. That at least some of live witnesses remain available and their memories will not have significantly changed from the time that a trial would have occurred in the event that the claim had been issued in time;
4. That some documents had been destroyed as a result of flood damage, but the relevance of the same is speculative.  In any event, given the knowledge of the claim, better attempts ought to have been made to secure the documents by the Defendants.
5. The claim appeared to be a strong one, and the prejudice to a defendant diminishes as the claim gets stronger.
6. The loss of evidence was overstated by the Defendants.
7. That delay prior to instructing English solicitors was not so egregious as to count heavily against the Claimant.  The Claimant was found to have trusted in the welfare officer of the Defendants, and thought that she would be guided through the process by her.  The Claimant was under the impression that once the Iraqi investigation into the incident was over, everything would be sorted out.  In was not until 2016 she was told that this was not the case and shortly afterwards she instructed solicitors.
8. The delay after instructing English solicitors (in 2016) was largely due to errors by the solicitors and the Judge did not consider it right to visit this upon the Claimant.

Accordingly, having weighed up all the factors, the Judge allowed the claim to continue pursuant to section 33 of the Limitation Act 1980.  He considered that a fair trial was still possible, and so the claim could proceed.

Conclusion

With the ‘unfettered’ discretion under section 33, each case falls on its own facts. However, it is always interesting and useful to know how judges have viewed such cases and so how the discretion has been applied, or why it was not.

This case is of particular use when considering whether the effect of one claim (for a minor, which would continue regardless) would influence whether another case (which is out of time) should continue.  The Judge found that this was not a relevant factor to be considered.

That prejudice diminishes to a defendant as a claim gets stronger (and also the converse must also be true) is a useful submission when facts support this argument.