Fisher Scoggins LLP Long tail long term long

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 3 rd-5 th September 1847 18481912 18491920 1963 19641967 Clay County Missouri London San Francisco London 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