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Sayers v Lord Chelwood & Anor [2012] EWCA Civ 1715 - 19/12/12


The Claimant wished to bring a claim for damage to his hearing suffered in the course of his employment as a gardener. He appealed against the decision of a Circuit Judge not to permit the claim to proceed on the basis that it was outside the limitation period; and the Circuit Judge's refusal to exercise his discretion to permit the claim to proceed. By the time he appeared before the Court of Appeal, the Claimant accepted that the date of knowledge was 2002 and that his action had not been commenced until September 2009. His appeal rested on the submission that the Circuit Judge who heard his first appeal had erred by failing to exercise discretion under s.33 of the Limitation Act 1980.

The appeal was dismissed. The Court of Appeal considered various authorities concerning the location and weight of the burden to be discharged when a claimant was seeking to ask the Court to exercise its s.33 discretion. The Court of Appeal preferred the view of Smith LJ in AB v Ministry of Defence 117 BMLR 101 that the burden of proof was on the claimant to that of Auld LJ in KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2003] EWCA Civ 85 that the burden was a heavy one. The Circuit Judge in the first appeal was wrong to say that a 'particularly heavy burden' fell on the Claimant seeking to persuade the court to exercise its s.33 discretion; but on the facts of the case, permission under s.33 ought to have been refused in any event.