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Cain v Francis [2008] EWCA Civ 1451 (18 December 2008)


Loss of Limitation Defence Not a Head of Prejudice under Section 33 of the Limitation Act.
The Court of Appeal held that the loss of a limitation defence was not to be regarded as a head of prejudice to the Defendant when the Court was exercising its discretion to disapply the time limit for the commencement of proceedings under section 33 of the Limitation Act 1980. It was established law that, where a tortfeasor had no substantive defence on liability, the accrual of a limitation defence was a windfall, the loss of which should be considered no prejudice at all. The question of whether it would be equitable, meaning fair and just, to allow an action to proceed was at the heart of section 33. In fairness and justice, a tortfeasor only deserved to have its obligation to pay damages removed if the passage of time had significantly damaged its ability to defend itself.