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Limitation decision in a fatal accident claim: on 21 April 2023, the High Court handed down judgment following a trial of a preliminary limitation issue

On 21st April 2023 Martin Spencer J handed down a judgment allowing a widow to pursue a claim issued seven years after her husband’s death, in the case of Tyers v Aegis [2023] EWHC 896.  Patrick Blakesley KC acted for the defendant.

George Tyers, a South African national, died in an accident in May 2012.  He was working in Iraq for the private military contractor Aegis Defence Services. He was stationed in Basra in another contractor’s fortified compound which was still under construction.  As he was closing a 2-tonne security gate it detached from its fixings and toppled onto him.

Aegis prepared a detailed investigation report into the accident, but argued that other relevant records were unavailable; some had probably been lost in a flood in about May 2015; and that several key witnesses were now untraceable.

An Iraqi criminal judicial process concluded in early 2016.  Mr Tyers’ widow then contacted several firms of English solicitors and instructed Leigh Day in September 2016.  Proceedings were not issued until August 2019, and only served on Aegis in August 2020, more than eight years after the accident.  This was Aegis’ first intimation of the claim.

Date of knowledge:  The judge rejected the claimant’s argument that she did not have sufficient knowledge of the facts of her husband’s death to start time running for the purposes of s.14 of the Limitation Act 1980 until about September 2013, when she first saw Aegis’ detailed accident investigation report.  The judge found that she was told of the outline circumstances on the day of the accident, and that was her relevant date of knowledge.  Obiter, the judge indicated that he would have accepted Aegis’ argument that she was estopped by convention from contending for a different date of knowledge in light of her solicitors’ repeated acceptance in correspondence that time started to run from the date of the accident.

Effect of daughter’s claim on claimant’s s.33 application:   The claim was also pursued on behalf of Mr and Mrs Tyers’ dependant daughter, who was still a minor and whose claim was not time barred.  The judge accepted Aegis’ argument based on close reading of s.13 of the Limitation Act 1980 that the widow’s claim had to be considered in isolation for the purposes of an application to extend time under s. 33, and rejected the widow’s argument that as the exercise of the discretion was unfettered, there could be no arguable prejudice to Aegis because the daughter’s claim would be pursued anyway.

Exercise of discretion under s.33

The judge considered a volume of authorities including those summarised in Carroll v Chief Constable of Greater Manchester [2017] EWCA Civ 1992 and exercised his discretion to allow the claim to proceed.  He found that there was little or no dispute about the circumstances of the accident; Aegis had carried out a probing investigation and taken relevant contemporaneous witness statements; missing witnesses would probably have been missing even if the claim had been issued in time; the relevance of lost documents was speculative and Aegis should have taken better care to preserve them anyway; Mrs Tyers herself had acted reasonably in not taking relevant steps sooner, and could not be fixed with blame for the errors of her solicitors; and it should still be possible to hold a fair trial.

The case illustrates the particular difficulties for defendants in resisting the issuing of stale claims where a contemporaneous accident report has been prepared; and the more permissive approach some courts are taking on these applications by contrast with some of the older authorities.

The judgment can be found here: Tyers v Aegis

Patrick Blakesley KC, instructed by Kennedys, acted on behalf of the Defendant.

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