Transcript PLANNING AND RESPONSE POWER , DISCRETION OR DUTY

Fisher Scoggins LLP
Long tail, long term, long stop
Developments and trends in limitation
A Lawyer’s View
By
Mark Scoggins
Queens’ College Cambridge
5 September 2002
Fisher Scoggins LLP
Legal Anniversaries 3rd-5th September
1847
Clay County Missouri
1912
London
1920
San Francisco
1963
London
1967
Sweden
Fisher Scoggins LLP
The future – new model, old clothes
16 July 2002 Government
announces
acceptance
of Law Commission Report 270
3-year “knowledge” period
Discretion to disapply
10-year long-stop (but not for injury/fatal claims)
Worth waiting for or no real change for PI?
Legislation “when time permits” i.e. no time soon
Fisher Scoggins LLP
Candour – liability and limitation rolled up?
“It is correct that the judge … did not consider the
appellant to have been blameworthy. Far from being an
irrelevant consideration, it seems to us that this must be one
of the matters to which the judge has to have regard …
when considering the reasons for the delay which she had
identified on the part of the appellant. This argument comes
ill in any event from the respondents, who had full
knowledge of the connection between VWF and vibrating
machines for some years, but withheld that knowledge
from employees such as the appellant.”
Allen v BR Engineering [2001] EWCA Civ 400
Schiemann LJ @ para 45
Fisher Scoggins LLP
When is a long-stop not a long-stop?
“Parliament repeatedly chose to amend the 1980
[Limitation] Act so as to exclude the 10 year longstop [under the Product Liability Directive] from the
operation of certain provisions. Sections 28, 32 and
33 were all amended so as to exclude expressly the
10 year long-stop from their scope. Yet no such
exclusion was made in respect of section 35. That
has to be seen as a conscious decision by the
legislature not to disapply section 35.”
SKB v Horne-Roberts [2001] EWCA Civ 2006
Keene LJ @ para 25
Fisher Scoggins LLP
Horne-Roberts survives … flourishes?
“Where a ... ‘new claim’ is made in the course of
civil proceedings [and] the new claim involves
the … substitution of a new party … [and] the
substitution is necessary for the determination of
an existing claim previously made in the
proceedings and the existing claim was not made
after the end of any applicable limitation period
… no [limitation] defence may be raised in
respect of the new claim.”
Law Commission Limitation Bill
Clause 25
Fisher Scoggins LLP
Limitation standstill – claimants’ caution
“The judge failed to consider … whether or not there was a clear
unequivocal promise or representation or common assumption … that the
defendants would forgo their right to plead the Limitation Act … [T]here
was no duty on the defendant’s solicitor to warn of this impending fall of
the guillotine … The correspondence is typical of the attempts to
negotiate a settlement of a claim with all the usual thrust and counterthrust (or bluff or counter-bluff) of potential litigants striving to come to
terms without losing too much face. That is not enough to found an
estoppel. To assert that the door to compromising the claim was still open
was not impliedly to promise that a limitation point would not be taken if
the negotiations failed and the proceedings started out of time.”
Ace Insurance v Seechurn [2002] EWCA Civ 67
Ward LJ @ paras 54-58
Fisher Scoggins LLP
Limitation standstill – clarification?
“Subject to the provisions of this section, nothing in this Act
prevents the making of an agreement the terms of which
(a) modify or disapply any of the provisions of this Act or
(b) make provision in place of any of the provisions of this Act
[but] an agreement is unenforceable if and to the extent that its
terms [have the effect of reducing the protection given to claimants
in cases of concealment, disability or product liability]”
[NB: “reasonableness” test whether or not caught by UCTA or UTCCR]
Law Commission Limitation Bill
Clause 31
Fisher Scoggins LLP
Dissolution – arguing in a circle
“[The Claimant] submits that … there was no defendant available to be
sued until the making of the restoration order, and that … the cause of
action cannot have accrued at any earlier date. Thus … the claim cannot
be statute-barred … [He] also seeks to distinguish … Re Workvale … on
the ground that in that case the cause of action had accrued prior to the
dissolution of the company. He submits that the position is entirely
different where as at the date of dissolution no cause of action has as yet
accrued. Indeed, he accepts that the effect of his primary contention … is
that a prospective claimant against a company which was dissolved
before the accrual of the cause of action is not subject to any period of
limitation, but can … delay indefinitely before applying for an order.”
Smith v White Knight Laundry [2001] EWCA Civ 660
Parker LJ @ paras 32-33
Fisher Scoggins LLP
Cautious counsel - a claimant’s lifeline?
“Peter Gibson LJ criticises the [facile] questions asked
by counsel [in his written opinion], and of course I see
the intellectual force of the criticism. Recalling my own
days at the junior bar, however, and the cautious opinions
I remember writing for what was then the Law Society, I
do not, for my part, find myself out of sympathy either
with Mr. Gray for writing such an opinion, or with the
appellant for relying on it.”
Rowbottom v Royal Masonic Hospital [2002] EWCA Civ 87
Wall J @ para 38
Fisher Scoggins LLP
You have been warned …
“The consequences of failure to comply with the rules governing
service of a claim form are extremely serious for a claimant and for
his legal advisers … The risks never need to be run: they can easily
be avoided by progressing the proceedings in accordance with the
spirit and letter of the CPR. Now that the disputed interpretations of
the CPR have been resolved by Godwin and by this judgment, there
will be very few (if any) acceptable excuses for future failures to
observe the rules for service of a claim form. The courts will be
entitled to adopt a strict approach, even though the consequences
may sometimes appear to be harsh in individual cases.”
Anderton v Clywd CC [2002] EWCA Civ 933
Mummery LJ @ para 2
Fisher Scoggins LLP
Walkley survives …
“… where a defence under this Act [that the
claim was not made in civil proceedings before
the end of the period of 3 years from the date of
knowledge of the claimant] is raised in respect of
a personal injury claim or a [fatal claim] … the
Court may direct that the defence shall not apply
in relation to the claim if it is satisfied having
regard to [the balance of hardship] that it would
be unjust not to give such a direction.”
Law Commission Limitation Bill
Clause 12