Friday, 19 November 2010

Aktas v Adepta [2010] EWCA Civ 1170

Time limits are the bane of a litigator’s life.  You can do any number of things in a court case – miss deadlines for document exchange, forget to instruct an expert witness, even fail to turn up at trial – and you can just about get away with it.  The Court wants justice to be done, and even the most incompetent party will be able to get their day in court.

The one thing you CANNOT get away with is missing time limits.  The ocean of law is strewn with the rusting hulks of potentially valid cases that foundered before even getting out of the dock, because the Claimant did not bring a claim until it was too late, or – even worse – sent it to the wrong Defendant on the last day…

The time limits are set out in the Limitation Act 1980.  It is fair to have time limits; there must be a finish somewhere.  Otherwise you could be sued for a building collapse due to iffy blueprints your great-great-grandfather drew up.  They are occasionally fiendish, three years for this, six for that, 90 for the other.  Always worth checking.  (Watch for ballooning accidents.  They are air travel claims, 2 years under the Warsaw Convention.)

The one that is ingrained in most lawyers’ minds is that for claims for negligence that cause injury. You have 3 years to get the claim issued from your injury; you have to watch the starting date, it’s usually when you get hurt.  And often people wait the full 3 years before suing, waiting for the injuries to get worse, or maybe because they are hoping to settle out of court.   The Aktas case is actually a couple of cases in one; conjoined cases dealing with missing the limit.

However the Limitation Act offers the slightest of get-outs.  The Court has a discretion to ignore the time limit; it famously did so in A v. Hoare, when a rapist won the Lottery, thus making it economically worthwhile for a victim of years ago to sue him for damages.  In Aktas, the Claimants issued right up against the time limit, and got the service wrong; one day too late in Mrs Aktas’ case, and the claims were struck out.  So Mrs Aktas and her fellow Claimants just started again, this time asking the Court for it to exercise discretion.  The Defendants applied to strike out the claims, on the basis that they were an abuse of process.  The claims had been decided, they shouldn’t be brought again.  A long-established principle of English law.  If you lose, you appeal, you don't start again - even if you have new grounds.  You have one shot only.

The High Court originally sided with the Defendants, but the Court of Appeal has decided otherwise.  The Court of Appeal was taken with the failure to serve in time being down to the Claimants’ lawyers, rather than the Claimants themselves; further, the Defendants had admitted liability.  Should the Court really throw out valid claims because of a lawyer’s mistake?  Were the Defendants prejudiced in any way, given that the parties were writing to each other and getting medical reports before the claims were issued?  Is it abusive to ask the Court a question – about extending the time limit – that the Claimants did not need to ask before?

The Court of Appeal therefore ruled that the second claims were not abusive.  It needs more than a single slight error to mean any subsequent attempts are an abuse of process.  The “penalty” for being too late is to lose the claim, with the costs consequences, not to bar a party from bringing a second one on different grounds.  As the Claimants’ second claims – unlike the first – asked the Court to ignore the Limitation Act, the new claim was sufficiently different.  The Claimants should not be barred from having a second stab, when their first had been sunk before it launched.

On the face of it, this is perhaps a little bit harsh on the Defendants.  The Claimants had their chance and blew it.  Why should they get a second go?  But if one steps back a little, we have Defendants admitting they have injured Claimants, and yet trying to get away with it because of the smallest procedural error by a lawyer.  The Court is anxious to do justice to the parties, and the Court of Appeal evidently felt that this was the best way to do so.  The Court of Appeal is sometimes slightly sentimental and Claimant-friendly – look for example at Spencer v Wincanton, where Mr Spencer lost one leg thanks to his employer, ill-advisedly tried to walk on his one good leg, fell over, and was allowed to sue his employer for the injury to his “good” leg.

The decision does not mean that the Claimants automatically win; the Court of Appeal just sent the case back down to the High Court for a judge there to consider whether to apply discretion.  If the judge declines to apply that discretion the Claimants will still end up being time-barred.  It is also possible that the Defendants may try to appeal in turn – the House of Lords (as was) reined in some of the Court of Appeal’s kindness in Goodes v East Sussex, where Mr Goodes skidded on snow, sued the local authority for not gritting, and won in the Court of Appeal before losing the big one, so the Supreme Court might be a bit harsher.  Aikens LJ expressed a hope that the principles to be adopted should now be clear and simple to follow; that may be right, but the Defendants might argue it is clearer, simpler and fairer to insist on claimants having to comply with the strictest letter of the law…

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