Law Report: Disability overrides limitation - Turner v W H Malcolm Ltd and another. Court of Appeal (Lord Justice Glidewell, Lord Justice Stocker and Lord Justice Staughton). 30 July 1992

Since there was effectively no limitation period for a plaintiff who was under a permanent disability, the effect of striking out his action if he did not proceed with it expeditiously was only to delay its final resolution.

The Court of Appeal allowed an appeal by the plaintiff, Graham Turner, suing by his wife Carol Joyce Turner, from Mr Justice Ewbank who, on 9 October 1989, imposed terms on the pursuit of a damages claim against the defendants, W H Malcolm Ltd and Francis McNulty, which a district registrar had refused to strike out for want of prosecution.

The claim concerned a motor accident in October 1980, in which the plaintiff suffered devastating brain injuries which resulted in a disability under section 38(2) and (3) of the 1980 Act.

The action began in August 1981, but from 4 February 1985, when the plaintiff served a reply, nothing was done until 18 August 1988, when he served notice of intention to proceed. The defendants applied to strike out the claim for want of prosecution.

Section 28(1) provided that 'if on the date when any right of action accrued for which a period of limitation is prescribed by this Act the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when he ceased to be under a disability . . . notwithstanding that the period of limitation has expired'.

Simon Hawkesworth QC and Francis Treasure (Vaudrey Osborne & Mellor, Manchester) for the plaintiff; Nigel Gilmour QC and Titus Gibson (Hill Dickinson Davis Campbell, Liverpool) and Michael Lewer QC and Jane McNeill (Lace Mawer, Liverpool) for the defendants.

LORD JUSTICE GLIDEWELL said the plaintiff could bring the action at any time whilst his disability lasted, which sadly was likely to be until his death.

Save in exceptional circumstances, an action should not be struck out for want of prosecution when the plaintiff was entitled under the Limitation Act to start a fresh action on the same cause. Since Parliament had in effect provided for no limitation period for a plaintiff under a permanent disability, the effect of striking out his action, or imposing a condition on its continuation, would only be to delay its final resolution.

LORD JUSTICE STOCKER and LORD JUSTICE STAUGHTON concurred.

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