Culpable Delay and section 33 in asbestos claim

Gregory v H J Haynes Limited

[2020] EWHC 911 (Ch), on appeal before Mr Justice Mann


This was an appeal from a decision by a District Judge who had declined to use the discretion to disapply the limitation period as available under section 33 of the Limitation Act 1980.    The claim was made as a result of the Claimant developing pleural thickening which was alleged to be as a result of exposure to asbestos as a roofer with the defendants between 1959 and 1971/2.  There was a resulting risk of mesothelioma and asbestosis.

The facts:

The date of knowledge was agreed to be 21/11/2008 when the Claimant first had knowledge of his disease, so limitation expired in November 2011.

In March 2009 the Claimant contacted solicitors who made enquiries as to insurers through ELTO (the Employers’ Liability Tracing Office) which identified no such insurers; the Defendants had been dissolved in 1992.  The solicitors made efforts to trace directors and insurance brokers without avail.  

Enquiries were made of ELTO until 2012.

In November 2013 details of the Defendant’s insurers were loaded onto the ELTO database, though the Claimant’s solicitors were not aware of this.  It was only in September 2014 when the same solicitors were making enquiries regarding a separate case that the details of the insurance became known to the Claimant’s solicitors.

In September 2014 a letter of claim was sent in relation to the other claim and in March 2015 a letter of claim was made in relation to this claim.  In the same month the Defendants were restored to the register.  In April 2015 a representative of the Defendants acknowledged the claim and asked for a witness statement.

In November 2016 a witness statement and HMRC record was sent to the insurers and in January 2017 a medical report disclosed.  In July 2017 a Claim Form was filed.

The District Judge dismissed the claim saying that “much more could and should have been done”.

The District Judge concluded that the delay between 2009 and 2017 was all culpable delay.

The Judgment

The Judge on appeal, Mr Justice Mann, found that had insurance been found between 2008 and 2011 then no limitation point would ever have arisen.

If proceedings had been issued in 2014 or early 2015 then it was highly likely that the section 33 discretion would have been used in the circumstances.  It would have been the first reasonable opportunity to bring the claim.

The Appeal itself turned on the District Judge characterising the period of 2009 and 2014 as ‘culpable delay’.  Mann J found that there was nothing further that the claimant could “realistically and sensibly have done in this period”.  There was little point taking action until it was apparent that there was some money available.  He found that the District Judge’s determination that this was a culpable delay had a material effect on his decision and so the decision could not stand.  The Judge went on to decide that the decision on the application should be re-taken.

The Judge considered the position on prejudice and considered the factors set out in Carroll v Chief Constable of Greater Manchester Police [2014] 4 WLR 1 (paragraph 42), which is now something of a section 33 checklist.

The Judge found that there was no culpable delay between 2009 and 2014, but there was culpable delay between 2014 and 2017.

The Defendant’s position had not been prejudiced by the delay since 2014/ 2015.  The evidential position had probably not worsened and they had the opportunity to make enquiries once the letter of claim was received.  

However, there was delay by the claimant’s solicitors in issuing the claim.  A claimant was expected to ‘get on’ with a late discovered claim.  He could not delay as long as he liked as that delay alone would make it unfair to extend the limitation period.  The present case was close to that limit, but not quite close enough.  The delay appeared to be due to the solicitors rather than the claimant himself.

The Judge considered the matter of prejudice and though noted that the Defendants would lose their limitation defence, the culpable delay was not sufficient to deprive him of the section 33 discretion which he would surely have been entitled to in 2014/ 2015.  The damage had been done to the Defendant’s evidential case by 2014.

As a side note, the Judge did find that the delay in getting a medical report once insurance had been located by his solicitors was not what section 33(3)(f) was intended for (“the steps taken, if any, by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received”).  This part considers whether a claimant was slow to seek advice (which the claimant was not in this case) which resulted in a delay to making a claim.  It was not intended to suggest that delay in getting a medico-legal report once the claimant had already seen solicitors should be taken into account.


Each limitation case is determined on its own facts, and the ‘unfettered discretion’ under section 33 can be difficult to appeal.  However, when a judge has taken into account something which he/ she ought not, to not taken into account something which he/ she ought, then the whole decision may be re-opened.  

Bailii copy of Judgment.