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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 >> Cairns -Jones & Ors v Tyler & Anor [2010] EWCA Civ 1642 (25 November 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/1642.html Cite as: [2010] EWCA Civ 1642

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IN THE COURT OF APPEAL (CIVIL DIVISION)

		Sitting at: Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1ET
		25 November 2010

Lord Justice Elias:

1. This is an appeal against the decision of His Honour Judge Seys Llewellyn QC in which he held at a preliminary hearing that the three appellants who are claimants in a personal injury action have brought their claims out of time and that he would not exercise his discretion to allow the action to proceed pursuant to section 33 of the Limitation Act.PRIVATE 
2. Each appellant was employed by companies which form part of a group of companies. All these companies ceased trading on 1 July 2005 when they went into administrative receivership. The group employed some 1200 men across the various companies. Some of them were involved in upholstery work. This involved the use of staple guns. Six employees have brought personal injury actions, having developed what is known as HAVS (High Alarm Vibration Syndrome) as a result, they allege, of exposure to the repeated vibration resulting from the use of guns. This condition is caused by the cumulative affect of vibration.
3. Two of the appellants have also claimed for work related upper limb disorder, a disease which is closely related to high alarm vibration syndrome but results from the carrying out of repetitive actions with significant force.
4. Of the six cases it is accepted that two claims were lodged in time and the judge, therefore, had to consider the position of the other four. One of them, Mr Roberts, has not appealed the decision in his case. There are also some 26 other claims which have been notified to the company but have not been litigated.
5. The judge heard oral evidence from each of the appellants and from certain other witnesses. He first considered whether the claims were made within the primary limitation period. He recognised that the appellants had a continuing cause of action so that time would not begin to run until either the appellant had ceased to be employed or had ceased to work as an upholsterer, whichever was earlier. He concluded that the claims had not been made within the primary limitation period and there is no appeal against that conclusion.
6. This involved a consideration of section 11(4) when read with section 14 of the Limitation Act. In the course of that determination he made certain findings as to when the appellants had actual knowledge that they had suffered an injury which was at least arguably attributable to an act or omission on the part of the employers and also when they had constructive knowledge of that fact as defined by section 14(3); that is, in substance, when they were put on notice of the injury which justified further enquiry.
7. He went on to consider whether he should exercise his discretion to extend time under section 33 and held that he should not. It is that part of the decision which is now being appealed. The legislation, section 33 of the Limitation Act, so far as is material is as follows:

"33 Discretionary exclusion of time limit for actions in respect of personal injuries or death.E+W

(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a) the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

(1A) The court shall not under this section disapply—

(a) subsection (3) of section 11A; or

(b) where the damages claimed by the plaintiff are confined to damages for loss of or damage to any property, any other provision in its application to an action by virtue of Part I of the Consumer Protection Act 1987.]

(2) The court shall not under this section disapply section 12(1) except where the reason why the person injured could no longer maintain an action was because of the time limit in section 11.

If, for example, the person injured could at his death no longer maintain an action under the Fatal Accidents Act 1976 because of the time limit in Article 29 in Schedule 1 to the Carriage by Air Act 1961, the court has no power to direct that section 12(1) shall not apply.

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section by section 11A or (as the case may be) by section 12;

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."

8. We were referred in the skeleton arguments to a number of authorities which have sought to elucidate the principles involving in applying section 3. I do not intend to conduct a detailed analysis of these decisions. So far as is material to this appeal, the following principles are relevant:

1) The burden of proof lies on a claimant to show that it would be equitable to disallow the limitation period - see Robinson v St Helens Metropolitan Borough Council [2003] PIQR 139 to 140 per Stuart Smith LJ;

2) The exercise of a discretion, as subsection (3) makes clear, involves balancing the prejudice to the claimant in using the opportunity to pursue its claim with the prejudice to the defendant resulting from the delay. As Smith LJ put it in Cain v Francis [2009] QB 754, paragraph 73:

"It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement."

3) The court is to have regard to all the circumstances of the case and not merely the matters identified in subsection (3). As Lord Griffiths observed in Donovan v Gwentoys Limited [1990] 1 WLR 472 at 478A to F, the specific matters identified in subsection (3) are matters which "past experience has shown are likely to call for evaluation in the exercise of the discretion and which must be taken into consideration by the judge".

4) In assessing the degree of prejudice to the claimant the court must so far as it can properly do so take into account the likely prospect of success and also the potential value of the claim. In Adams v Bracknell Forest Borough Council [2005] 1 AC 76, Lord Hoffmann at paragraph 54 approved the dictum of Stuart Smith LJ in the Robinson case to which I made reference when he said this:

"33. The question of proportionality is now important in the exercise of any discretion, none more so than under section 33. Courts should be slow to exercise their discretion in favour of a claimant in the absence of cogent medical evidence showing a serious effect on the claimant's health or enjoyment of life and employability. The likely amount of an award is an important factor to consider, especially if, as is usual in these cases, they are likely to take a considerable time to try."

That was a case involving dyslexia, but similar principles apply here. Accordingly, the weaker the claim and the smaller the likely damage is, the smaller the prejudice to a claimant if he is barred from the action.

5) The principal damage to a defendant lies in the effect of a delay on his ability properly to defend a case. This is in fact in part reflected in paragraphs (a) and (b) of subsection (3). And as Smith LJ observed in Cain, it is the consequence of the delay rather than the length of the delay which is material. Again, she said this at paragraph 73:

"The length of the delay will be important, not so much for itself as to the effect it has had.  To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? "

But she went on to say:

"But it will also be important to consider the reasons for the delay.  Thus, there may be some unfairness to the defendant due to the delay in the issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed."

6) The delay referred to in paragraphs (a) and (b) is a period of delay subsequent to the expiry of the primary limitation period. That was made clear by Lord Griffiths in the Donovan case to which I made reference, at page 478G.

7) It follows that if the claimant is dilatory about notifying the defendant of a potential claim, thereby prejudicing the defendant forensically, that will be a factor militating against the exercise of discretion in his favour, notwithstanding that it is not the delay identified in paragraphs (a) or (b). This is reflected in paragraph (e) which provides that it will always be relevant to ask whether the claimant acted promptly or reasonably once he knew he might have a claim, and delay will be material even if it occurs before the limitation period has expired if it prejudices the defendant. The point was made succinctly by Lord Oliver in the Donovan case when he said this:

"The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff's claim on that point alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses' memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers."

8) Finally, where a judge has exercised his section 33 discretion an appellate court should not intervene unless the judge is so plainly wrong, either because he misapplies relevant principles or reaches a decision that is so clearly unsustainable that his decision has exceeded the generous ambit of discretion within which reasonable disagreement is possible - see the observations of Auld LJ in KR & Ors v Bryn Alyn Community (Holdings) Limited [2003] EWCA Civ 85 paragraph 69.

The judge's analysis

9. The judge made certain findings about the date when the appellants had knowledge of their claims. His findings in respect of the three appellants were as follows. Mr Cairns-Jones, who was 66 at the time of the hearing before the judge, was employed until 19 or 20 November 2003. He was found to have constructive knowledge in 1998 and actual knowledge by way of a medical report dated 22 May 2007. He issued his claim form on 18 December 2007, some 13 months out of time. Mr Collier, aged 57 at the time of the hearing, was employed until July/August 2005. He moved away from upholstery for a short period. He was found to have constructive knowledge in 1998 at the latest and actual knowledge by way of a medical report dated 29 August 2007. His claim was deemed issued on 24 September 2008, a month or so late. Mr Howe, 43 at the time of hearing, was employed until the early summer 2001 as an upholsterer. He was found to have constructive knowledge in early 1999 and actual knowledge by way of a medical report dated 22 June 2007. His claim was deemed issued on 24 September 2008 and therefore he was some four and a half years out of time.
10. In exercising the discretion under section 33, the judge identified and considered each of the factors in section 33(3). Under paragraph (a), which requires consideration of the length and reasons for the delay, he considered the delay from the date of constructive knowledge and also from when the appellants had actual knowledge that they had a claim. He recorded that the delays from the date of constructive knowledge was considerable in all except Mr Howe's claim, and that the delay between actual knowledge and the institution of proceedings, whilst modest in the case of Mr Cairns-Jones, was considerable in Mr Collier's claim. He further noted that in each case the delay was substantially unexplained. What is missing from the judge's analysis is any consideration of the delay from the period when the primary limitation period expired or the reasons for it, and that is one of the grounds of this appeal.
11. As regards paragraph (b) namely the effect of the delay on the defendants ability to defend the claim, the judge concluded that the effect was modest since the group of companies went into receivership in 2005. It is clear that here he was considering the effect of the delay from the date of expiry of the primary limitation period as he was required to do. Similarly, he held the delay from the date of actual knowledge was likely to have had minimal impact on that matter but not so the delay from the date of constructive knowledge.
12. He understood there to be no criticism of the defendants' conduct after the cause of action arose (paragraph (c)). Paragraph (d) did not arise. As to (e), the judge noted that there was no explanation raised for delay before institution of proceedings once actual knowledge was shown. As to (f), he considered that each claimant had been passive but had made contact with solicitors reasonably promptly once it was drawn to their attention that they might have a claim.
13. He then turned to other matters not specifically caught in paragraphs (e)-(f). First, in the appellant's favour he recognised that since HAVS was a creeping disease and was not grossly disabling, allowance should be made for the fact that the claimant might understandably be stoical about the illness and not take formal steps to take action against his employer whether by seeking medical investigation or legal advice at the earliest stage. This is effectively identifying a reason for some delay. He also noted, however, that the damages in these cases were modest as illustrated by the fact that three of the claimants limited their claim to £15,000. The symptoms of these appellants were not severe when compared, for example, with Mr Roberts. He thought there was "considerable uncertainty as to whether liability would be established in each of the claimants before me". He had regard in that context to evidence from an expert witness, Mr Glendenning, who assessed the work in question in these cases to raise a low level of risk, and who expressed a view that the degree of exposure to the staple guns is not likely to exceed the limit set out in industry guidelines. The judge considered from his own experience that the costs of litigation of this nature were extremely high and he considered them disproportionate to the level of damages.
14. He then turned to have regard to the effects on the defendant of the delay and on their ability to properly defend the case. He thought they would have great difficulty in locating witnesses of fact and his conclusion was: "it will be intensely difficult for the Defendant fairly to meet the claims brought against it". He had a statement from a Mrs Adams from the defendant company, who was not required to give oral evidence and was not cross-examined, who spoke of the difficulties of getting access to documents following the receivership and also identified various problems in identifying the supervisory staff and others who might confirm or otherwise the accuracy of any allegations made by the appellants.
15. It was suggested to the judge that two claims were proceeding in any event meant that the prejudice to the defendants, and the additional cost they would have to bear, would be more limited than might otherwise be the case. He rejected that submission. He thought that each case turned on its own facts and required the application of expert evidence to the individual facts. He was not satisfied there was uniformity of working practices and therefore the experience of individual defendants would have to be analysed.
16. He then brought these matters together with respect to each of these three appellants in the following way. At paragraph 107 he said this with regard to Mr Cairns-Jones:

"107. Mr Cairn-Jones. The period between the date of constructive knowledge (1998) and institution of proceedings (18.12.2007) was 9 years. The estimate of averaged exposure for him made by Me Glendenning was 1.0 m/s². there is great uncertainty as to prospects of success. I consider that the Defendant will have difficulty in locating witnesses of fact and that it will be intensely difficult for the Defendant fairly to meet the claims brought against it. I take into account also the disproportion of costs to amount of likely recovery. The burden of showing that it would be equitable to allow the action to proceed case is on the Claimant and I am not satisfied that it would be, having regard to the degree to which the provisions of s11 prejudice the Claimant, or any decision of the court would prejudice the Defendant, to the circumstances of the case under s 33(3) and generally which I have identified individually above (put more shortly, 'having regard to the circumstances')."

17. He adopted a similar analysis with respect to Mr Collier at paragraph 108. With respect to Mr Howe, he again identified essentially the same factors but he also noted in his case that had Mr Howe been given a warning as it was suggested he should have been, the indication was that he would not have responded to it. This was because he had been warned by a consultant that he should not continue to do vibration work at this time because of the risk to his health. Notwithstanding that advice, he did take up such work.
18. The judge then considered the specific complaint relating to work-related upper limb disorder made by Mr Cairns-Jones and Mr Collier. As to that, there was a concession that actual knowledge of attribution had occurred a long time before the claim was made. In the case of Mr Collier, he knew of his difficulties in the 1980s and 1990s and in Mr Cairns-Jones' case, the judge found that he was attributing the injury to the work by the early 1990s at the latest.

The grounds of appeal

19. The principal ground of appeal and the one which caused Lord Justice Ward to grant leave, was that the judge failed to recognise that the period of time in section 33(3)(a) should be taken from the expiry of the limitation period and not the date of actual or constructive knowledge. As I have indicated, that delay is relatively limited in the case of Mr Cairns-Jones, only one month in the case of Mr Collier, but very substantially longer with respect to do Mr Howe.
20. Mr Mallett, counsel for the appellants, also submitted that as well as failing to have regard to that factor, the judge had failed to recognise that there was a continuing cause of action and that the injuries were becoming exacerbated over time. The judge had referred to this earlier in his decision, but the complaint is that he did not expressly take this on board when he was exercising his discretion under section 33. As I understand it, the argument is that some of the witnesses, for example, will have been working with these appellants only some years before, only a short period before they commenced their claims, whilst other relevant witnesses would go back to the time of constructive knowledge. So many relevant witnesses could readily be identified and found.
21. In addition to these grounds, it is said that the judge placed too much emphasis on three other matters in particular. The first was the uncertainty of success; the second was the difficulty faced by the defendant in defending the case and the third was the way in which he approached the issue of proportionality
22. As to the prospects of success, it was submitted that the expert's report was provisional and that the judge did not properly focus on the full weight of the case being advanced by the appellants. Mr Mallett accepts that the strength of the claim is a factor to bear in mind, but reminds us of the observation of Brooke LJ in the case of Davis v Jacobs [1999] Lloyd's Law Reports: Medical 72 at page 60F where he observed that a judge has to exercise great care when assessing the prospects of success at a preliminary stage.
23. Mr Mallett said that appropriate care was not exercised here. He identified two issues in particular which were not adequately assessed in that context.. First, he said that the judge had not dealt with the question of warnings which should have been given to these appellants, on their case at least, with respect to the risk of HAVS. In fact, however, he accepts that the judge does at paragraph 56 of the judgment refer to the fact that a warning would normally be given where the average daily exposure on the A8 basis was one metre per square second and 2.8 metres per square second was the level which gives rise to foreseeable injury. The judge also noted (paragraph 63) that the exposure levels of Mr Collier and Mr Cairns-Jones were in the region of one metre square second. Furthermore, as the expert to the appellants accepted, there is a tendency in cases of this kind for the claimant's evidence to put the degree of exposure higher than the degree estimated by supervisors and managers.
24. The judge also referred expressly as I have indicated to the effect that any warning may have had if given to Mr Howe. In paragraph 110 he gave reasons why he thought it would not have been likely to have any impact. These matters were considered by the judge. So the bare allegation that the judge simply omitted to deal with the issue of warning is simply not sustainable. Mr Mallett further submitted that alternatively the significance of warnings was not properly assessed and the judge did not display the degree of caution that was necessary with respect to the issue of warnings. He also suggested that there had been insufficient recognition of the significance of the work-related upper limb disorder. That was a matter which featured in the pleadings and there was evidence before the judge about it. Mr Mallett submitted that it should have been expressly considered in the context of assessing the strength of the case.
25. The next principal challenge is that it is said that the judge overstated the difficulties which the defendant faced in fighting these claims. He had not considered, for example, whether the employer should have had access to documentary evidence/records, notwithstanding having entered receivership, and the judge had overstated the difficulty of tracing witnesses. Some witnesses would have to be traced in any event with relation to the other two cases that were going to trial.
26. Finally, it was asserted the judge placed too much emphasis on the issue of proportionality. Since two claims had to be tried in any event the additional costs would be relatively small and, furthermore, the litigation would not merely resolve the particular claims but would in practice be likely to assist in resolving the other 26 claims of which the company had been notified.
27. The defendants submit that this judge, very experienced in personal injury litigation, obviously appreciated that the cause of action continued until the date when employment ended or, in the case of Mr Howe, when he ceased to do the relevant work. They submit that he obviously would have had that factor in mind but that in truth it was not a material factor. The significant dates in this case were the dates when the appellants had actual or constructive knowledge. They were the material dates for two reasons. First, the somewhat lackadaisical way in which the appellants had responded once they had constructive knowledge gave an indication of the nature of the injuries as they perceived it to be and the significance of their claim. Furthermore, the delay from the date of constructive knowledge plainly has a significant impact on the defendant and on their ability to track down witnesses and properly defend a claim. If the employers had been notified a lot earlier of these potential claims then they would have had far fewer difficulties in seeking to defend them.
28. The defendants submit that although the judge was wrong to the extent that he considered the question of delay from the date of actual and constructive knowledge under paragraph (a), that was of no real significance. As Mr Mallett accepted, it was right for the judge to consider those issues and it was immaterial that they were considered under the wrong paragraph.

Conclusions

29. It is true the judge did not specifically in terms or in any detail focus on the period of delay from the expiry of limitation period and, furthermore, the way in which the judgment is constructed suggests that he thought that the issue of delay from the date of actual and/or constructive knowledge had to be considered under paragraph (a) of section 33(3). That was no doubt an oversight or an infelicity in the structure of the judgment. It was an error, but of the most technical kind. The delay with respect to those periods was plainly highly material in this case in assessing the forensic prejudice to the defendants. The relatively limited delay between the expiry of the limitation period and when action was commenced is of no real significance here and it did not prejudice the defendant. Indeed the judge recognised that when he considered paragraph (b). The error, therefore, is not in my judgment one of any materiality.
30. It is also pertinent to note that the judge recognised that a reason for some delay would be that the appellants might have chosen to act in a stoical manner and that was a factor he took into consideration when considering the issue of delay.
31. Thereafter, the judge analysed a range of factors which, as the authorities demonstrate, he was obliged to consider. He gave detailed and careful analysis of all the material facts. He first focused upon the prejudice to the claimant if the claim were stopped in its tracks. He was plainly right to have regard to the strength of the case, albeit that it was necessarily a provisional assessment, and he was entitled to conclude that there was considerable uncertainty as to whether it would succeed. He gained support for that conclusion from the appellants' own expert.
32. As to the question of warnings, from the passages that I quoted from the judgment, it is plain that he had effectively found that there was considerable doubt whether the degree of exposure of Mr Cairns-Jones and Mr Collier would be sufficient to attract a warning. That was a finding based on solid evidence. There was also the question whether they would have heeded one if given. On the material before the judge it appeared that the claim by Mr Howe that he should have been given warning was indeed potentially a strong one, but he dealt with that at paragraph 102 when he indicated that Mr Howe would in all likelihood not have responded to it. Mr Mallett submits that that would not be a fair interpretation because the fact that Mr Howe carried on doing the same work after advice from his doctor does not prove that he would necessarily have done the same had he been given a warning much earlier from his employers. That may be so,(although one might think that the doctor's warning would carry more weight) but here we are not assessing whether he would or would not succeed at trial, merely the strength of the case, and this was a material factor for the judge to take into consideration in Mr Howe's case.
33. As regards the alleged failure by the judge to have regard to the work-related upper limb disorder element of the claim, it became clear during the course of submissions that was never a central focus. It was very much a secondary part of the case and we do not think the judge could be criticised for dealing with it in a relatively peremptory fashion. What he did do, however, was identify with respect to that part of the claim that the two appellants making that claim, namely Mr Cairns-Jones and Mr Collier, had actual knowledge of attribution a long time ago and that was an important element in the exercise of his discretion.
34. Thereafter the judge focused on the detriment of the defendant. He had uncontradicted evidence there would be serious problems caused by the delay and in our judgment Mr Mallett cannot fairly criticise the judge for speculating as to what steps the employers might take or might have taken in order to deal with the problems they faced of lack of records and lack of witnesses. The judge drew on his own experience to conclude that these difficulties would be very substantial. He was entitled to do so. He had regard to the submission that more could be done to track down witnesses and his assessment was that the submission demonstrated "an inherent lack of realism". Again, in my judgment he was entitled to reach that conclusion.
35. Finally, the judge recognized, as far as proportionality is concerned, that two cases would have to go forward anyway. He weighed that in the balance. He concluded that this would not significantly affect the cost incurred by the company because each case is very much dependent on its own facts and the defendant would have to identify particular witnesses with respect to each claim. He balanced the likely costs to the defendant against the prospects of success and the likely compensation.
36. Having taken all these factors in mind, he reminded himself that the burden was on the claimant to show that it was equitable to disapply the limitation period and he concluded that he was not so satisfied. In my judgment that was plainly a proper exercise of discretion by the judge. He did not step outwith the scope of the discretion conferred upon him, and I would therefore dismiss the appeal.

Lord Justice Pitchford:

37. I am grateful to Elias LJ for his examination of the issues. I agree with his conclusions. The judgment of the court below was, if I may say so, carefully constructed and detailed, concentrating as it did sequentially upon each relevant issue, summarising the law and recognising there was in some respects an overlap between some of these issues.
38. Mr Mallett's principal complaints are that: (1) the judge misunderstood the period to be considered under section 33(3)(a) of the Limitation Act 1980, or if he did not he placed too much weight upon the fact and duration of delay between the date of constructive knowledge and the issue of proceedings; (2) that the judge underestimated the strength of the claimant's cases; (3) in assessing proportionality the judge failed to attach weight to the fact that these were but lead cases in a group action; and (4) in assessing forensic disadvantage the judge failed to analyse the ability of the defendants to investigate the whereabouts of the relevant witnesses and at whose door the fault lay if they could not.
39. As to the first complaint, I am not satisfied that the judge misunderstood the period it was relevant to consider under section 33(3)(a). This is a judge very experienced in the field in which he was giving judgment. In my view the judge just happened to identify under the heading at paragraph 92a of his judgment "The length of the reasons for the delay on the part of the Plaintiff" two relevant dates, the date of constructive knowledge and the date of actual knowledge that the claimant had a worthwhile cause of action. Under his paragraph b, "The extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the Plaintiff or the Defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 1", the period of delay is the same as that under paragraph a.
40. The judge specifically referred to delay since the acquisition of actual knowledge demonstrating his clear understanding of the relevant principle. The judge was considering the forensic disadvantage to the defendants arising from the longer period of delay between the date of constructive knowledge and the issue of proceedings in the exercise of his judgment of all the circumstances in section 33(3). This was a judgment the judge was perfectly entitled to consider under the principle recognised by the House of Lords in Donovan v Gwentoys in the speech of Lord Griffiths at page 478. I find no error of approach by the judge, nor any error of judgment.
41. If and insofar as the way in which the judge's judgment was laid out in writing betrays the possibility of a misunderstanding, I agree with my Lord that the judge was in any event perfectly entitled to take into account the longer period of delay in the exercise of his wider judgment.
42. As to the merits of the claims, the judge concluded that the overwhelming measure of liability would turn on detailed evidence relating to the nature, degree and frequency of exposure to vibrating tools. Even if the claimant's evidence was accepted, upon the claimants' expert's own preliminary view the claimants were in a low risk category.
43. In my view, the judge was entitled to distinguish between a claim which was intrinsically strong and one which depended upon the uncertainties of description of detail as to the system of work to which each of the claimants was separately exposed many years after the cause of action arose. He was, in reaching this view, drawing upon his extensive experience of trying similar cases and I do not consider that in this respect he went arguably wrong.
44. As for proportionality, the fact that the claimants represented the lead cases was not central to the issue of proportionality. The judge was considering the costs of the claims against the prospect of substantial damages. He rejected the argument the lead cases would not necessitate significant further expenditure in costs. On the other hand, the value of the claims was admittedly modest. In my opinion that was a legitimate conclusion.
45. As to forensic disadvantage, there was little doubt that the defendants had suffered a significant disadvantage in investigating the individual claims and the judge was explicit in his reasoning in this respect. Mr Mallett's argument was that if that was so it was their own fault because they had not retained relevant records. That was one side of the balance. The other was that the claimants could have been expected to take but did not take steps to draw their alleged injuries to the attention of their employer many years before they did. Had they done so, evidence as to working conditions would have been readily available to the defendants, evidence which almost certainly now will not be.
46. I agree with my Lord that this appeal should be dismissed.

Lord Justice Carnwath:

47. I agree with those judgments so the appeal will be dismissed.

Order: Appeal dismissed