Limitation

Adam v Ali CA TLR 6 March; SJ 3 March

Section 11 of the Limitation Act 1980 prescribes a three-year time limit for personal injury claims. However, under s33(1) if it would be equitable to allow an action to proceed having regard to the degree to which (a) the provisions of section 11 prejudice the plaintiff and (b) any decision of the court under this subsection would prejudice the defendant the court may direct that those provisions shall not apply to the action. In Walkley v Precision Forgings Ltd [1979] 1 WLR 606 the House of Lords held that the court had no discretion under s33 where the claimant had began his first proceedings within the s11 limitation. In the present case the claimant had commenced proceedings which had been struck out in default of service of particulars of claim; she then commenced second proceedings. However, the claimant’s writ in the first proceedings was issued a week after the three-year limitation period had expired. Accordingly, the decision in Walkley, which was acknowledged to be anomalous, did not deprive the court of its discretion and, looking at the case in the round, justice and fairness dictated that it would be equitable that the claimant be permitted to proceed with her action because the prejudice to the defendant did not outweigh the prejudice to the claimant in having her claims struck out as time-barred.