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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Khan v National Union Of Rail, Maritime & Transport Workers & Anor [2001] EWCA Civ 959 (7 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/959.html Cite as: [2001] EWCA Civ 959

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KINGSTON COUNTY COURT
(His Honour Judge Bishop)

		Royal Courts of Justice Thursday, 7th June 2001

1. LADY JUSTICE ARDEN: This is an appeal with permission of Clarke and Chadwick LJJ from the order of His Honour Judge Bishop sitting in the Kingston County Court dated 13th May 1999 dismissing an appeal on a preliminary point of law from the judgment of deputy judge Shelton made on 18th June 1998. The preliminary issue had raised the question whether the appellant's claim was statute barred. In this appeal the appellant seeks an order that the appeal be allowed and that her claim be allowed to proceed to trial.
2. The relevant events start in 1983. The appellant was then employed by the British Railways Board and a member of the National Union of Rail, Maritime & Transport Workers (the first respondents on this appeal) ("the Union"). She was badly injured in an assault by another employee. She suffered serious injuries, including an injury to her lower back. She was five months pregnant but she was advised to have her pregnancy terminated, and four of her teeth were broken in the assault. She was unable to cope with work when she returned after the assault, largely because of the back injury, and she has been unable to hold down a job for any length of time since that. She has needed physiotherapy regularly since the assault and has had periods of mental illness.
3. In January 1984 the appellant returned to the Union a form of application for compensation from the Criminal Injuries Compensation Board ("CICB") which she had completed. She sought their assistance with that claim. The Union duly received the form and asked for some more information and clarification. There was then a gap in the correspondence, but on 25th September 1998 the employer confirmed that the accident had been recorded in the accident book.
4. There was then a gap in the correspondence. The first respondent contends that the appellant ought to have known by June 1990 that no progress had been made on her claim since 1985. On 28th April 1992 the first respondent requested details about certain DSS appeals with which we are not concerned. They also asked the appellant for medical reports. On 19th June 1992 the first respondent wrote to say that the CICB could not assist as they had no details of the claim. On 2nd November 1992 the first respondent wrote again saying that the CICB could not find the claim form. The first respondent asked the appellant whether she had any correspondence from the CICB in her possession.
5. In March 1993 Pattinson & Brewer, solicitors, the second respondents to this appeal, wrote to the CICB asking for further information. On 26th April 1993 the CICB stated that there was no appeal from their decision, and on 29th April 1993 the second respondents were informed of that. On 11th June 1993 Pattinson & Brewer, the second respondents, informed the appellant that they had been unable to trace any papers relating to an application to the CICB submitted within three years from the date of the assault and seeking details of the reference given by the CICB, without which the proposed application would fail. On 7th July 1993 the second respondent wrote to Mrs Khan and they stated that they were ceasing to act. The union also withdrew its support. They suggested that Mrs Khan should instruct a private firm of solicitors should she wish to pursue this matter. On 13th June the CICB had given notice that they could not trace the previous application and later they notified the second respondents that they could not trace any records and that no action would be taken. In September 1993 the appellant wrote to the CICB requesting an appeal. In October 1993 the CICB declined her request with regret.
6. In October 1993 the appellant wrote to the CICB requesting them to look at the matter again. On 24th November 1994 the CICB wrote with their decision that nothing could be done.
7. There was then another two year gap until 16th October 1996 when the first respondent again wrote to the appellant saying that they could not represent the claimant any longer, and on 18th November 1996 the second respondents also wrote to her. On 6th January 1997 the CICB wrote to the appellant, stating that all the papers concerning the case had been destroyed and that there was nothing that they could do to assist in the matter.
8. The appellant filed an affidavit in the proceedings. The appellant says that in 1983 the first respondent advised her to make a claim to the CICB and they told her that they would assist her in making the application. She says that she asked the official dealing with the matter, a Mr Johncock, on several occasions in 1984 how the matter was progressing. He assured her that it was being dealt with and that she need not worry.
9. She states that in early 1992 she complained to the first respondent that no award had been made. The first respondent advised her to make a new application. She then made a new application, and the first respondent instructed the second respondents to deal with that matter. By letter dated 8th March 1993 the second respondents confirmed that they had been instructed to act for the appellant.
10. By a letter dated 26th April 1993 the CICB informed the second respondents that it was not prepared to make the appellant an award. One of the grounds on which that decision was made was that her application had not been made within three years of the assault.
11. The appellant explained that she does not know whether her application was submitted to the CICB on her behalf in 1983 and then lost or whether the first respondent or the second respondents simply failed to submit the application. She says that either way one or other of the first or second respondents or possibly both were at fault in failing to chase up the application and to find out what had happened to it.
12. In February 1997 the appellant began proceedings in the Staines County Court claiming damages for negligence against the first and second respondents. The particulars of claim alleged that the respondents had failed to submit a claim to the CICB or had failed to pursue a personal injury claim against her employer.
13. A "holding" defence was filed by the first respondent containing a general traverse and also alleging that the claim was statute barred. The second defendants, the second respondents on this appeal, have not filed a defence.
14. In his judgment the judge referred to the issue as to whether or not the second respondents were retained at the time of the original application, and indeed whether there was ever an application to the CICB in 1983. If there was, there was no evidence as to what became of it.
15. The judge referred to the fact that in the period 1985 to 1992 there was some evidence that the appellant had suffered mental illness but found that the extent of that illness was not clear. He found that the appellant had moved from address to address. He observed that a number of relevant documents are no longer in existence.
16. Turning to the crucial question of limitation, the judge held that the limitation period expired on 29th September 1992. He found that the claimant's time for making a claim against the CICB ran from 29th September 1983, the date of the assault, and that she needed to make a claim within three years, ie by 29th September 1986. Accordingly the judge held that the primary limitation period expired six years later on 29th September 1992.
17. The judge then turned to section 14A of the Limitation Act 1980, which provides that time may be extended for three years from the date on which the claimant can show that he or she first became aware of the right to claim. The respondents argued before the judge that the appellant was aware of the claim from receipt of the CICB's letter dated 19th June 1992 stating that the CICB could not assist her. The judge then considered an alternative argument that the appellant had constructive knowledge of what was going on during the period from 1985 to 1992. The district judge had found in favour of this submission. The judge held that in the absence of medical evidence he could not disagree with this finding. He pointed out that there was no evidence showing that the appellant was incapable of understanding business matters or incapable of knowing the position. If there had been such evidence, then the position might have been different. In the circumstances the judge held that the action was statute-barred.
18. By order dated 17th January 2000 Clarke and Chadwick LJJ gave permission to appeal. Clarke LJ held that it was arguable that the non-disclosure to the appellant of the true reason why the respondents had decided to withdraw support from her claim to the CICB was concealment for the purposes of section 32(1)(b) of the Limitation Act 1980, so that the relevant period of limitation did not begin to run until the applicant had discovered the concealment or could with reasonable diligence have done so. He also considered that it was arguable that the court below had not sufficiently considered the application of section 14A(1), (5), (6)and (8) of the Limitation Act 1980. In particular he was concerned that the court below had not sufficiently considered whether the applicant knew that the damage was attributable in whole or in part to the act or omission which was alleged to constitute negligence. Lord Justice Chadwick gave a concurring judgment and stated that the relationship between section 14A and section 32(1)(b) of the Limitation 1980 in the circumstances of this case seemed to him to be apt for consideration by the Court of Appeal.
19. The appellant has filed an amended notice of appeal. In short, she contends that her cause of action did not accrue until she had reasonable grounds for believing that her right to pursue her claim was lost, which did not occur until about 6th January 1997. Second, she contends in the alternative that, pursuant to section 14A of the Limitation Act 1980, the limitation period did not begin to run until the appellant had knowledge of all relevant factors, including the fact that her application to the CICB could never be adjudicated upon as the file had been destroyed. This occurred on 6th January 1997. In the second alternative she contends that the respondents concealed a material fact relevant to her cause of action and that, pursuant to section 32(1)(b) of the Limitation Act 1980 the limitation period did not begin to run until she was reasonably able to discover that which had been concealed from her.

Mr Boulter's Affidavit

20. On 22nd May 1998, Mr Adrian Boulter, a legal executive employed by the second respondents, made an affidavit. He explained that in February and March 1993 his firm had been instructed by the second respondents to assist the appellant in connection with an application to the CICB. He explains that he formed the impression from the limited papers and instructions given to him that the first respondent had successfully concluded an application to the CICB, that thereafter the appellant's symptoms had worsened, and in consequence the first respondent had made attempts to have the original application reassessed and in doing so had submitted a second application.
21. Mr Boulter goes on to say that on making enquiries from the CICB he formed the view, which he says may be inaccurate, that the first respondent's legal department did not in fact fail to submit any previous applications to the CICB. As a consequence, the application with which his firm were instructed to deal had been made out of time. He recalls advising the first respondent's legal department in 1993 of the possible error on their part which could amount to negligence. He states that it was agreed that the first and second respondents should have no further involvement and that the plaintiff should be advised to instruct a private firm of solicitors and that this was confirmed by his letter dated 7th July 1993. This letter states simply:-

"We have considered the matter very carefully and under the circumstances confirm that the Union have withdrawn their support for your claim and we have now ceased to act on your behalf.

We can only respectfully suggest that you instruct a private firm of solicitors if you wish to proceed with this matter."

22. Mr O'Neill, who has appeared for the second respondents, has told the court that he would not wish to suggest that this letter should not have gone further or suggested that there was a claim against one of the parties.

Limitation Act 1980

23. By section 2 of the Limitation Act 1980 an action in tort is statute barred six years from the date on which the cause of action accrued. However, section 14A provides for a special time limit for a negligence action where facts relevant to the cause of action are not known at the date on which the cause of action accrued. The normal period of six years is capable of being extended to three years from the starting date as defined by subsection (5) of section 14. This provides that the starting date for this purpose is "the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an claim."
24. Subsections (6) to (10) provide as follows:-

"(6) In subsection (5) above 'the knowledge required for bringing an action for damages in respect of the relevant damage' means knowledge both -

(a) of the material facts about the damage in respect of which damages are claimed; and

(b) of the other facts relevant to the current action mentioned in subsection (8) below.

(7) For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(8) The other facts referred to in subsection (6)(b) above are -

(a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and

(b) the identity of the defendant; and

(c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.

(9) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.

(10) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire -

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek;

but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."

25. Section 32 of the Limitation Act 1980 provides for postponement of the limitation period in cases of fraud, concealment or mistake. Section 32(1) provides that, subject to immaterial exceptions, where the action is brought upon the fraud of the defendant or "any fact relevant to the plaintiff's right of action had been deliberately concealed from him by the defendant" the action is for relief from the consequences of mistake, the period of limitation does not begin until the claimant has discovered the fraud, concealment or mistake, as the case may be, or could with reasonable diligence have discovered it. Section 32(2) provides that for this purpose:

"Deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in the breach of duty."

26. Subsection (5) provides that section 14A does not apply to any action to which sub-section (1)(b) above applies.

The Appellant's submissions

27. Mr Shaw for the appellant submits that the appellant's cause of action accrued only when the CICB finally refused to make an award because it had a discretion to make an award even after the expiry of the three year limit. Next, Mr Shaw contends that contrary to the judge's findings the CICB claim was still pending or had not been submitted at the end of 1996.
28. Further, he contends that the respondents had a continuing duty to submit the claim even after the expiration of the three year period because the CICB might in its discretion accept the claim. Indeed, in April 1993 the second respondents had suggested to the appellant that the CICB might still make an award. As respects section 14A he submits that the appellant could not reasonably be expected to know of the damage on which her cause of action depended until she received the CICB letter dated 6th January 1997. He submits that she could not have known of the damage attributable to the respondents' negligence until she saw Mr Boulter's affidavit dated 22nd May. As respects concealment, he contends that the respondents concealed their negligence from the appellant and the appellant could not reasonably be expected to have discovered the true position until January 1997. He submits that in concealing the possibility of their negligence the defendants had concealed a fact relevant to the claimant's right of action within the meaning of section 32(1)(b). The first respondent did not inform the claimant of the possibility of their negligence in the handling of their claim in their letter of 16th October 1996 and the second respondents did not inform the claimant of the possibility of their negligence or that of the first respondent in their letters of 29th April 1993 or 7th July 1993. In support of his submission Mr Shaw relies on Tucker v Allen. He further submits that applying section 32(5) the period of limitation provided for by section 32(1)(b) should take precedence over that provided for by section 14A.
29. Mr Shaw further submits that the claimant needed to be aware of the fact that the damage was caused by the negligence of the respondents.
30. Finally, Mr Shaw submits that it is in the interests of justice that the claim should proceed since the CICB have destroyed their files, the appellant acted promptly and has suffered severe injuries and the defendants have concealed material facts from her.

The Respondents' submissions

31. Mr Stewart QC, for the first respondent, makes the following submissions. First, he submits that the appellant should not be permitted to raise the allegation that the respondents were guilty of concealment. The facts have not been pleaded or investigated at any trial. The parties agreed that the issues could be determined on the basis of witness statements without the need for cross-examination. Accordingly, there was no investigation of any kind relating to deliberate concealment. The court should not permit a new point to be raised because the court cannot be satisfied that it has before it all the facts bearing on a new contention as completely as would have been the case if the controversy had arisen at trial. On this he cites The Tasmania (1890) 15 App.Cas. 223 at 225, where Lord Herschell said:

"My Lords, I think that a point such as this, not taken at the trial, and presented for the first time in the Court of Appeal, ought to be most jealously scrutinised. The conduct of a cause at the trial is governed by, and the questions asked of the witnesses are directed to, the points then suggested. And it is obvious that no care is exercised in the elucidation of facts not material to them. It appears to me that under these circumstances a Court of Appeal ought only to decide in favour of an appellant on a ground put forward for the first time, if it be satisfied beyond doubt, first, that it has before it all the facts bearing upon the new contention, as completely as would have been the case if the controversy had arisen at the trial; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them when in the witness box."

32. Second, Mr Stewart submits that the appellant cannot establish any deliberate concealment on the material before the court. He submits that the only fact which the respondents could have concealed from the appellant is the fact that the original application had not been submitted. He submits that the appellant must establish that she was ignorant of this fact during the period of concealment and that she could not with reasonable diligence have discovered the concealment on some earlier date than the actual discovery of it. Here, on the appellant's own case the last date on which she made any enquiry about her case was in 1984/5, and there exists no correspondence of any kind relating to this claim between 1984 and June 1992. During this period the appellant could with reasonable diligence have discovered the fact that the application had not been submitted. The test is objective, not subjective - see Paragon Finance plc v D B Thakerar & Co [1990] 1 All ER 400 at 418.
33. Third, Mr Stewart submits that the appellant suffered damage prior to June 1987; alternatively prior to February 1991. Damage occurred when the three year limit expired.
34. Mr Stewart submits that there was no practical prospect of the CICB waiving the three years limitation period given the absence of any claim having been made upon them in the preceding eight years.
35. Fourthly and finally, Mr Stewart submits that the appellant had the knowledge required for bringing the action prior to 1990; alternatively in February 1994. Section 14A(10) states that a person's knowledge includes knowledge which he might reasonably have been expected to acquire from facts observable or ascertainable by him. By June 1990 there had on the appellant's case been no progress whatsoever in respect of her claim since an unspecified date in 1985. It follows that by this date she knew that she had received no recompense from the CICB and she might reasonably have been expected to enquire as to the matter from the respondents and/or the CICB and to take the matter to the other solicitors, and had she done any of these things the likelihood is she would have discovered that her claim had not been issued. On 2nd November 1992 the appellant was informed that the CICB had no knowledge of the issue of the claim and on 11th June 1993 the second respondents stated that neither they nor the first respondent nor the CICB could find a record of an application being made. Accordingly, the limitation period expired in June 1993 before any concealment as alleged. Mr Michael O'Neill for the second respondents adopted Mr Stewart's submissions on behalf of the second respondents.

Section 32(1)(b) of the Limitation Act 1980

36. After hearing counsel on this point, we refused permission for the appellant to rely on section 32 of the Limitation Act 1980. In my judgment this was the right course for the following reasons. First, the first respondent does not accept that Mr Boulter wrote the letter of 11th July 1993 to the appellant in agreement with the first respondent and has not had and would have wished to have had the right to cross-examine Mr Boulter on this point on his affidavit. Second, there is no evidence that the second respondents were instructed to present or pursue any claim with the CICB. Mr O'Neill directed us to certain correspondence. On 10th January 1983 the first respondent wrote to the appellant saying that the union was unable to assist with the prosecution of Mr Shaheed, the person responsible for the assault. The letter continued:

"However, the office have arranged for you to see a Mr J. Ball of Pattinson & Brewer, the union solicitors",

37. and then gives the details of the date and time and venue of the appointment. Mr O'Neill took us to the affidavit evidence of Mr Boulter, who had investigated the position of Mr Ball. He states clearly in his affidavit that Mr Ball was employed in the criminal department and would have been requested to advise in connection with criminal matters only. He states that there are no records or recollection of Mr Ball ever having been requested to assist or advise in any case over and above criminal matters which would have excluded applications to the Criminal Injuries Compensation Board and/or civil claims arising out of trespass following an assault. There is a further affidavit from Mrs Ginette Hogan who is an official of the first respondent. She states that until about 1992 the first respondent had a legal department and that amongst other functions it dealt with most claims through the CICB. However, there is a rider to that, namely that complex applications were referred to the second respondents. There is a possibility on that evidence that this could have been considered to be a complex or unusual application, such as would normally be referred to the second respondents. Be that as it may, there is, Mr O'Neill submits, no evidence that the second respondents were ever instructed in 1983 regarding the submission of an application to the CICB and indeed the appellant's own affidavit does not suggest that they were instructed on that point.
38. Mr Shaw for his part contended that if any additional facts needed to be found by the court they could be found by this court since all the material is available to enable the court to do so. However, this concession does not get over the difficulty that he has in meeting the points made by Mr Stewart on behalf of the first respondent and by Mr O'Neill on behalf of the second respondents; in particular, the first respondent has not had an opportunity of cross-examining Mr Boulter and therefore of testing the evidence that the letter written in July 1993 to the second respondents, stating that the union had withdrawn from the matter and that the second defendants were no longer acting, was written in consultation or in agreement with the first respondent. In those circumstances, bearing in mind what Lord Herschell said in The Tasmania, it is not appropriate for this court to permit this point to be raised at this stage. Likewise, in relation to the second respondents there is no evidence that the second respondents were involved in making the first application. The concealment point thus cannot assist as against them. Accordingly, it would not therefore be right to allow the concealment point to be raised at this stage.
39. That leaves only the section 14A point on this appeal. The submissions as amplified orally are as follows. Mr Shaw submits that there was a duty on the part of the respondents which continued after 1986. The claim could be lodged at any time and if the claim was accepted by the CICB would be of the same value if lodged within three years. It would not diminish the value. Accordingly, he submits that the damage did not occur until January 1997 when the CICB finally rejected the claim that the appellant wished to make. He submits, in the alternative, that the damage occurred on 26th April 1993 when the CICB made its decision to reject the appellant's claim on the basis that the claim had not been alleged within three years. On either basis he submits that the final proceedings in January 1997 were well within time since they were within six years of either April 1993 or January 1997. He also relies on evidence that the appellant trusted her union. That is what she told the judge when the matter came before the judge. True it is that the union had told her that it had no records in June 1992 and on 26 April 1993 that the CICB had rejected her claim but even after that date she was led to believe that she had a claim. In this connection Mr Shaw relies on correspondence. On 28th April 1993 the second respondents wrote to the appellant saying that it seemed that her original application had not yet been concluded. They were continuing to correspond with the CICB, and there is an attendance note on the second respondents' file stating that Mr Boulter had spoken to the CICB on the telephone and that they had said that they would look into the matter again and would write again, as the person dealing with the matter was not in the office. In addition, Mr Shaw points out that on 6th May 1993 the second respondents had written to the appellant stating that they confirmed that further investigations could be made on her behalf and that the CICB may well re-open the case. The appellant made a second claim in which she referred to the fact of her first claim and relied heavily on it. On 31st May 1993 an attendance note of the second respondents records that the CICB accepted that an application had been lodged but it was out of time. They also accepted that an application may well have been lodged before and thus in time. In those circumstances Mr Shaw submits that time had not expired and that the action was not statute-barred.
40. For the respondents Mr Stewart submits that the six year period expired in 1992. He submits that had it been pleaded there was some further duty to prosecute the case so as to avoid the situation in which the CICB destroyed papers or that if the respondents were negligent in failing to retain proof of the submission of the original application there might have been a continuing duty after the expiry of the three year period. He submits that neither of those claims has been pleaded and that if there were an application it would have to meet the requirements of section 35 of the Limitation Act 1980.
41. There is no application before us to amend the particulars of claim so that that is not a matter with which I need to deal. I only need to deal with the claim as pleaded, which is a claim that the application was not duly submitted in time. Mr Stewart submits that the damage therefore accrued in September 1986 and that the primary limitation period expired six years later in 1992. He also submits that the appellant could clearly have made inquiries long before February 1994. That is of course the last date if her proceedings in January 1997 are to have been made in time.
42. In my judgment, the critical question is whether the appellant has shown that she could not with reasonable diligence have discovered that a claim had not been submitted. In my judgment, she fails on this point. The application to the CICB should have been lodged in early 1984. The position is that she made no inquiries after the period 1984/1985 until about 1992. It seems to me that one could reasonably have expected her to make inquiries before that date. In November 1992 she was informed by the first respondent that the CICB had indicated that they had no knowledge of the issue and wondered whether she had in her possession any correspondence from them giving any reference numbers. In my judgment, the reasonable response to that would have been to inquire from the first respondent: "What do you mean that no records exist?Did you not submit the application form back in 1984 and do you not have a record of it?"Likewise, in June 1993 the opportunity arises again. The second respondents wrote to the appellant stating that they had been unable to trace any papers relating to an application to the CICB submitted within a period of three years and stating that unless they were able to establish that an application was submitted within a period of three years from the date of the assault, then they would be unable to proceed with the claim, and stating that the CICB required their reference and that unless that was disclosed to the second respondents the application would fail and the claim would cease. In my judgment, the reasonable response to that would have been that alarm bells should have rung and the appellant should then have made inquiries as to whether an application had been submitted at the due time. There is no basis for saying that if she had made those inquires she would not have received accurate answers. Accordingly, in my judgment this appeal must fail. The limitation period must have expired before she began her proceedings. The judge's conclusion was correct and the appeal must be dismissed.
43. LORD JUSTICE LATHAM: I agree.
Order: Appeal dismissed; order made under section 11 of the Access to Justice Act; application for permission to appeal to the House of Lords refused. (Order not part of the judgment of the court)