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Delay in issuing proceedings should not prevent asbestos claimant from receiving compensation
The recent decision of Gregory v HJ Haynes Limited is a boost to asbestos claimants who have been unable to identify employers’ liability insurers for their former employers within the 3 year limitation period for issuing Court proceedings. But it is also a stark warning for claimant solicitors not to delay in issuing proceedings. It is clear that delay does not necessarily equate to prejudice to the defendant and a fair trial was still possible in Mr Gregory’s case. But in a warning to claimant solicitors Mr Justice Mann made clear that
it will normally behove a claimant who discovers a late claim to get on with its pursuit. Even if things are so delayed already that additional delay does not cause any identifiable prejudice, a claimant cannot expect to delay as long as he/she likes on that basis. There will come a point at which the claimant’s own delay in those circumstances will make it unfair to extend the period
Background of the Case
Mr Gregory was a roofer employed by HJ Haynes Limited, the defendant, from 1959 to 1971/72. He alleged that during the period of his employment, he was required to saw, cut and drill asbestos containing materials and was exposed to the dust. He now suffers from pleural thickening giving rise to respiratory disability and is at risk of developing mesothelioma and asbestosis. In November 1985 a Liquidator was appointed to wind up HJ Haynes Limited and the company was dissolved in December 1992.
The legal rules in relation to the time limits in relation to claimants issuing cases in the Court are very clear. The claimant has three years from the date that he knew or should have known that he was suffering from an asbestos related disease to issue a claim in the Court. The parties agreed that Mr Gregory first acquired knowledge of his asbestos related pleural thickening on 21 November 2008. The limitation period of three years started running in November 2008 and proceedings should have been issued no later than 21 November 2011.
Mr Gregory first contacted his solicitors in March 2009 with a view to making a claim. As the defendant’s were dissolved, the solicitors would need to first establish whether or not there was employers’ liability insurance at the time of Mr Gregory’s employment so that the claim could be notified to them. HJ Haynes Limited would need to be restored to the Companies Register in order that proceedings could be issued. In March 2009, Mr Gregory’s solicitors made enquiries with the Employers’ Liability Tracing Office in order to identify any relevant insurer. None were identified at that time. The following year, they took several other steps including writing to former directors and other solicitor firms specialising in asbestos claims to locate the insurer, but they were unsuccessful. They also wrote to an insurance broker, but again, no insurers were identified.
The limitation period of course expired in November 2011 and the solicitors made further enquiries to identify possible insurers until 2012, but all avenues were exhausted and no insurers were found.
On 12 November 2013, details of the defendant’s insurers were uploaded to the database used by the Employers’ Liability Tracing Office. This was not known to Mr Gregory or his solicitors at the time. The following year in September 2014, a search was made at ELTO in respect of another claim being dealt with by the same solicitors which of course revealed the identity of HJ Haynes’ insurers. The other claimant’s case proceeded against the insurers and the solicitors made an Application to restore HJ Haynes to the Company Register and this process was successful in March 2015. The other case was issued in November 2014 (the application for restoring a company to the Register can be retrospective). In March 2015 a Letter of Claim was sent to the insurers for HJ Haynes in relation to Mr Gregory’s case, and a Claim Form was issued in July 2017, almost six years out of time.
District Judge’s Decision
It was accepted by both parties that the limitation period started running in 2008 and so by the time the proceedings were issued, the three year time period had passed. In that circumstance, the claimant sought to rely on the Limitation Act and in particular s33 of the which allows the Court a discretion to dis-apply the three year limitation period bearing in mind the prejudice if any to both parties. The District Judge decided that there had been culpable delay from March 2009 to November 2014. The further difficulty was that Mr Gregory (presumably on his solicitor’s advice) had taken over two years to issue proceedings after the insurers were found. At first instance the Judge did not allow the application of Section 33 so the claimant appealed.
The Court needs to consider the degree and nature of prejudice that is likely to be suffered by Mr Gregory and the defendants as a result of the delay. The prejudice to Mr Gregory of course in not being able to bring his claim is of course obvious. He will not receive compensation for his asbestos related illness. The prejudice to HJ Haynes is being deprived of a limitation defence. The Court also considers the availability of witnesses and evidence in the intervening years.
Whilst Mr Justice Mann was critical of Mr Gregory’s solicitor’s conduct after September 2014 and warned “if there had been any evidence of additional prejudice to the defendant arising out of that last period of delay, my decision would probably have been different”, he allowed the appeal. No limitation point would have arisen if Mr Gregory’s solicitors had managed to identify insurers between 2008 and 2011 (and made the standard Application to restore HJ Haynes to the Company’s Register). However, the solicitors were not able to do so because the insurers were not traced. It was by chance that the insurers were found later on in relation to another case. The Judge said that if the claim had been issued in 2014 or even at the beginning of 2015 (with the Application made to dis-apply s33) then it is highly likely that the Application would have succeeded. The difficulty was that there was a passage of another two years or more when proceedings were not issued until 2017. The Judge made it clear that the delay was attributable to the solicitors rather than Mr Gregory himself. He did not think that the delay was enough to deprive Mr Gregory of the disapplication of the limitation period (to which he would have been entitled to in 2014 or perhaps even 2015). He allowed the appeal and dis-applied the limitation period as requested, but this case is a stark warning to claimant solicitors. It is clear that delay does not necessarily equate to prejudice to the defendant and a fair trial was still possible in Mr Gregory’s case. It was helpful to Mr Gregory’s case that all of the prejudice had effectively been accrued prior to 2014 which is to say before the period of “culpable delay” on the part of Mr Gregory’s solicitors. As a fair trial was still possible, he allowed the claim to proceed.
The Judge said
if there had been any evidence of additional prejudice to the defendant arising out of that last period of delay, my decision would probably have been different; but in the absence of that additional prejudice I do not think the delay is quite bad enough to weigh down on the claimant in terms of the fairness of the relief sought
To read the cases where we overcame limitation issues please see https://www.boyesturnerclaims.com/site/our-cases/asbestosis-settlement-for-docker-in-contested-limitation-case and https://www.boyesturnerclaims.com/site/our-cases/Peritoneal-mesothelioma-compensation-fund-future-treatment-costs
For more information about how the mesothelioma and asbestos claims team could help you after a diagnosis with an asbestos related disease, contact them by email on email@example.com.
I really appreciated the friendly, efficient and supportive nature of the solicitor.
I would also like to express my thanks to you for your dedication in chasing the defendant's insurance company especially where COVID-19 made an impact.
Boyes Turner Client