Fudge v Hawkins & Holmes Ltd & Others
On 16th March 2018 Sir Robert Francis QC delivered judgment in the case of Fudge v Hawkins & Holmes Ltd & Others  EWHC 453 (QB).
William Vandyck and Mark Armitage successfully represented the defendants in this limitation hearing, instructed by BC Legal and BLM respectively. The issue for the Court was whether or not to exercise its s.33 discretion to allow the claimant to pursue a claim that was admittedly out of time.
An 81 year old claimant sought provisional damages against three defendants for alleged asbestos-related injury leading to the development of diffuse pleural thickening and asbestosis. He alleged exposure to asbestos while working as a carpenter at various times between 1973 and 1978: cutting asbestos insulation boards, sweeping asbestos dust and debris, or working near laggers.
The claimant’s admitted date of knowledge was September 2008 and proceedings had not been issued until 9th February 2017.
The claimant alleged that the principal reason for his delay in bringing the claim was the negative advice of previous solicitors, upon which he had reasonably relied. The claimant argued that he had met with a previous solicitor in the summer of 2010 who had investigated his claim and found no viable paymaster; the file was therefore closed. It was held however that those previous solicitors had provided the claimant with ‘crystal clear‘ advice that the 3 year limitation period would lapse in June 2011. It had also been made clear to the claimant how important it was to have full and accurate details of his various employers and of the work he did for them.
The current case had come about due to the claimant having responded to a press advert in 2015 and contacted his current solicitors believing that they would be able to identify a valid defendant.
The Court formed the impression that the claimant could remember only the ‘barest detail‘ of his work over the many years relevant to the issues in the case, and in particular in relation to the companies for whom he worked; the order in which he worked on various projects; and the crucial issue of which of them involved exposure to asbestos. ‘There was a tendency to fill in the gaps in his memory with supposition which on challenge would from time to time be replaced by different and inconsistent suggestions.‘
It emerged for the first time, during cross examination of the claimant, that he had kept detailed records of his work for tax purposes in respect of each year. He agreed that these documents would have indicated for whom he had worked and when he had done so. He had retained these documents in his attic until around 2012. They were therefore still in existence when he met with his previous solicitors and they had been destroyed several years after his admitted dated of knowledge. It was held that the claimant had given his previous solicitors a confused account of his working history and of his exposure to asbestos. He was criticised for not referring to his own tax documentation.
As such, the Court found that the negative advice that the claimant had received from his previous solicitors was not a satisfactory explanation for the delay as he himself had not provided them with all the assistance that he could offer. He ‘was at least partly responsible for sending his solicitor on a wild goose chase, and did not provide him with either the correct, or the complete, information in his possession.’ That ultimately led to the closure of the file.
It was held that the issues of when the claimant worked for any of the defendants, or indeed any other employers, and whether while working for any one of them he was exposed to asbestos were matters of great uncertainty. The claimant recognised that not all of his work exposed him to asbestos, but his evidence had changed significantly over the years about which employments did so. The effect of his difficulty with memory was compounded by his actions in denying himself the contemporaneous records which he destroyed in 2012. The evidence was therefore significantly less cogent than if he had brought the action in time.
The Court determined that the loss of cogency of evidence was of particular significance in a case devoid of any documentary support or the availability of any other evidence to support the claimant’s recollections. The Court was entirely satisfied that the cogency of the evidence had been significantly reduced by the delay in bringing proceedings. ‘What would have been difficulties due to a fading memory before the expiry of the limitation period have become insuperable barriers since then.’
The Court held that the defendants would suffer significant prejudice if the limitation bar were to be disapplied. They would be required to investigate and defend a claim based exclusively on the failing memory of the claimant. They had been deprived of access to contemporaneous records which would have assisted to corroborate or contradict the claimant’s account. A fair trial was therefore unlikely to be possible. To allow the claimant to attempt to prove his case at trial would place a disproportionate burden on the defendants to resist it. ‘This is not because Mr Fudge has not suffered a significant and worrying injury, but because I have to have regard to the burden on the Defendants in being deprived of their limitation defence and thereby obliged to expend resources in investigating and defending a claim which now relies almost exclusively on the fading memory of the Claimant.’
This case provides a useful example of how the court is likely to approach the issue of s.33 discretion in a claim based solely upon a claimant’s oral evidence. The claimant’s already confused account had been rendered even more so due to the period of delay following his date of knowledge. The principal rationale for the claimant’s delay was prima facie attractive: in that he had sought legal advice and had relied upon that advice. However, that rationale was of no avail in circumstances in which the claimant himself had provided those solicitors with a confused and misleading account which had actually itself resulted in such negative advice. This claim is perhaps unusual and of some significance given that in that it involves a rare example of a claimant who, without explanation, destroyed important documents that would have proved of great assistance in establishing his case.