Limitation of Actions Consultation - Law Commission

very long time before asking the expert an infinitely more complicated
list of questions which in turn take a very long time to answer. 149
In those circumstances it appears that the plaintiff would have constructive
knowledge, but might not necessarily have an action in negligence against the
solicitor.
(c) Discretionary disapplication of the limitation period
3.66 Section 33 of the 1980 Act is one of the most important and most heavily used
provisions in the law of limitations. 150
Under this section the court has a discretion
to allow an action for personal injuries to be brought, notwithstanding that the
limitation period has expired. Subsection (1) provides that if it appears to the
court to be equitable to allow an action to proceed it may direct that section 11
shall not apply. In making this decision the court must have regard to the degree to
which section 11 prejudices the plaintiff and the degree to which allowing the
action to proceed would prejudice the defendant. 151
The court shall have regard to
all the circumstances of the case but the list of factors which the court must take
into account, as laid down in section 33(3), is as follows:
“The length of, and the reasons for, the delay on the part of the plaintiff”
3.67 It is possible for delay to have occurred in one or both of two time periods, that
before the expiry of the limitation period and that after the expiry of the limitation
period. Section 33(3)(a) has been construed as referring only to delay after the
expiry of the limitation period, 152
but the House of Lords held in Donovan v
Gwentoys Ltd 153
that delay before the end of the limitation period, though falling
outside the paragraph, could nevertheless be taken into account as one of the
“circumstances of the case”. 154
3.68 The test applied here is subjective, so that there is no requirement that the
plaintiff’s reasons for delay are reasonable. 155
Where the delay is very short the
149 Spargo v North Essex District Health Authority 1997 PIQR P235, 245, per Brooke LJ. See
para 3.64, n 143, above. Brooke LJ drew attention to our review of the law and invited the
parties to acquaint us with the problems experienced in relation to constructive knowledge
in that case to enable us to consult properly on this issue. He added that “[o]nce the
recommended policy is identified it would be helpful if [we] found ways of expressing it in
statutory language less opaque than that contained in s 14(3) of the present Act.”
150 See generally A Bijlani, “Limitation in medical negligence cases Part II: how the court’s
discretion is exercised under s 33 of the Limitation Act 1980.” [1997] JPIL 159.
151 Section 33(1)(a) and (b).
152 Eastman v London County Bus Services Ltd, The Times, 21 November, 1985; Thompson v
Brown [1981] 1 WLR 744, 751; Donovan v Gwentoys Ltd [1990] 1 WLR 472.
153 [1990] 1 WLR 472. Cf Platt v Quaker Oats Ltd (unreported, 12 July 1991).
154 It has however been suggested that this case is only authority for considering delay before
the end of the limitation period “in exceptional circumstances where the limitation period
is greatly extended or delayed”: see T Prime and G Scanlan The Modern Law of Limitation
(1993), p 167, n 70.
155 Coad v Cornwall & Isles of Scilly Health Authority [1997] 1 WLR 189. The court has, in
considering this factor, taken account of the plaintiff’s lack of knowledge of his or her legal
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