Giles Mooney QC wins Section 33 Appeal in the High Court

News | Thu 25th Apr, 2019

Giles Mooney QC successfully resisted an appeal from the Defendants in a claim under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. The deceased died from bronchopneumonia, having contracted asbestosis, allegedly in the course of his employment with the Defendants.

The claim was issued in March 2015, within 3 years of the deceased’s death. On the trial of the preliminary issue of limitation, however, the Judge considered that the deceased’s date of knowledge was October 2008, and that limitation had therefore expired in October 2011. The Judge, in an ex-tempore judgment, nonetheless exercised his discretion under s.33 Limitation Act 1980 and allowed the claim to proceed. He held that the delay was excusable and understandable, and that the Defendant was in no worse a position than they would have been in 2008.

This exercise of discretion was appealed by the Defendants, who argued that the Judge had omitted material matters from his consideration and failed to properly direct himself as to the principles to be applied.

On behalf of the Claimant, Giles Mooney QC contended that the Judge applied the correct principles, made findings on the evidence and reached a decision with which an appeal court should not interfere. He cautioned against micro-analysing an ex-tempore judgment, a point with which the appeal Judge, Yip J, entirely agreed.

On a significant issue of law, Yip J disagreed with the interpretation of the Defendant, that paragraph 48 of Carr v Panel Products (Kimpton) Ltd [2018] EWCA Civ 190 required the claimant to adduce evidence of additional prejudice going beyond the loss of the claim.

Adopting the terminology of McCombe LJ at paragraph 44 of Carr, Yip J found in favour of the Claimant, that whilst there were some ‘shaky bricks’ in the first instance judgment, the foundation stones upon which the Judge exercised his discretion were sound. The Judge was entitled to find that the delay was understandable and excusable, and that the Defendant’s position had not materially changed since 2008. It would therefore be inappropriate to interfere with the Judge’s exercise of the broad and unfettered discretion under s.33.

Giles Mooney QC was instructed by Fosters Solicitors Norwich. The judgment can be found here.

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