Cressey v E Timm & Son Ltd. & Anor [2005] EWCA Civ 763 (24 June 2005)

Neutral Citation Number: [2005] EWCA Civ 763 Case No: B3/2004/2462 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM GREAT GRIMSBY COUNTY COURT HIS HONOUR JUDGE CRACKNALL Royal Courts of Justice Strand, London, WC2A 2LL 24 June 2005 B e f o r e : LORD JUSTICE MAY LORD JUSTICE RIX and LORD JUSTICE JONATHAN PARKER ____________________ Between: Brian Cressey Respondent/Claimant - and - E Timm & Son Ltd & E Timm & Son Holding Ltd Appellant/ Defendant ____________________ (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) ____________________ Mr David Mercer (instructed by Messrs Bridge McFarland) for the Respondent Mr James Murphy (instructed by Messers Beachcroft Wansbroughs) for the Appellant ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Lord Justice Rix : This appeal is about the date from which the victim of a tort who suffers personal injury can be said first to have had knowledge of the "identity of the defendant" for the purposes of limitation and the three year period allowed for bringing his claim. Limitation Act 1980 By sections 11(4) and 14(1) of the Limitation Act 1980, re-enacting the Limitation Act 1975, the applicable limitation period for a claim in negligence where the damages claimed include damages for personal injuries is: three years from the later of either the date when the cause of action accrues or "the date of knowledge" of the victim; and the date of knowledge means the date on which the victim first has knowledge of a combination of a number of facts which include "the identity of the defendant". Section 14(3) adds a provision regarding constructive knowledge. Thus the relevant provisions of sections 11 and 14 provide as follows: "11. (1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. (3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below. (4) Except where subsection (5) applies, the period applicable is three years from – (a) the date on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured. 14. (1) Subject to subsection (1A) below, in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts – (a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and (c) the identity of the defendant, and (d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant; and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant. (3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire (a) from facts observable or ascertainable by him, or (b) from facts ascertainable by him with the help of medical or appropriate expert advice which it is reasonable for him to seek; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice as long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice." Section 33 gives a court power to exclude such time limits; but that discretion is not in issue in the present case. These statutory provisions do not envisage the need for rules of court to govern their operation, and no such rules have been made. It may however be relevant to consider certain rules of court which relate to the identity of a defendant. The facts: a chronology The claimant (and here, the respondent) is Mr Brian Cressey. He worked as a forklift truck driver. His employer was, as is now common ground, E Timms & Sons Holdings Limited (the second defendant, and here the appellant); but his pay slips were in the name of an associate company, E Timms & Sons Limited (the first defendant). I shall call the first and second defendants "Limited" and "Holdings" respectively. The current appeal is between Mr Cressey and Holdings. Mr Cressey was injured at work on 2 December 2000 when, in the course of using his forklift truck, a pallet collapsed causing another pallet to strike and break his leg. He required immediate medical attention. Save for the question of the identity of his employer, it is common ground that Mr Cressey then and there had all the knowledge necessary to the commencement of the three year limitation period for his claim. The issue debated in the courts below and before this court is whether he already then had knowledge of the identity of his defendant. He knew that the defendant would be his employer. But did he know his employer's identity? Following the accident Mr Cressey instructed solicitors under arrangements already in place with his trade union. The precise date when those instructions were given and accepted is not known, but by 30 March 2001, that is to say within four months of the accident, his solicitors had already sent a letter of claim in the terms of the personal injury pre-action protocol to Limited, who were at that time thought to be his employers. There is no suggestion that Mr Cressey's instructions to solicitors or their letter of claim to Limited were in any way unreasonably delayed. The letter of claim identified Limited as Mr Cressey's employers, alleged fault against them as such by reason of specified failures, including an unsafe system of work, identified documents likely to be relevant including information about Mr Cressey's earnings, and asked Limited to confirm the identity of their insurers. Limited did not reply directly, but passed the solicitors' letter to their insurers, Zurich, for them to reply. Zurich replied by letter dated 25 April 2001, which the solicitors received on 30 April 2001. Their letter, in its heading, identified their insured as "E Timm & Son Holdings & Subsidiary Companies". The brief letter asked the solicitors to "note our interest on behalf of our above insured" and otherwise stated that they had a further two months to respond with their views on liability. On receipt of that letter Mr Cressey knew through his solicitors, for the first time, of the existence of Holdings. I think it would be going too far to say that he knew that Holdings rather than Limited were his employers, because if Limited were a subsidiary company, they would be among Zurich's insured. However, it can be said that Mr Cressey was at least on notice that Holdings might be the relevant employers. Meanwhile on 6 April 2001 Mr Cressey had been made redundant. A reference letter, dated 15 June 2001, on the letter-head of Limited, states that the redundancy was due to "the Company closing down", ie to Limited's closing down. The reference said that Mr Cressey had joined "the Company" in 1973 and had given 27 years loyal service. The letter was signed for Limited by its company secretary and financial director. At some time after that letter reached Mr Cressey, he provided it to his solicitors. At that time I would have supposed that both Mr Cressey and his solicitors continued to think that Limited were his employers. However, a witness statement made by his solicitors on 6 July 2004 states that following receipt of Zurich's letter dated 25 April 2001 subsequent correspondence proceeded on the understanding that the correct defendant was Holdings rather than Limited. Since it is not necessary on the facts of this case to determine whether knowledge that Holdings rather than Limited were the employers came later than 30 April 2001, that date can therefore conveniently be taken as the date when Mr Cressey actually learned that Holdings were his employers. On 9 October 2001, Zurich gave its substantive response. It admitted liability, subject to contributory negligence. On 7 March 2002, the question of contributory negligence was settled, for it was agreed that Holding would pay 75% of any damages due by reason of the accident. On 23 June 2003 a supplementary medical report and draft schedule of loss were sent to Zurich, and on 18 August 2003 the solicitors prompted Zurich that their proposals for settling the claim were awaited. In the absence of such proposals, the solicitors wrote to Zurich on 18 November 2003 to indicate that a protective claim form would be issued (Zurich had refused to extend time) and to ask for confirmation as to "the correct identity of the Defendant in these proceedings". On 20 November 2003 Zurich confirmed by e-mail that the correct defendant was Holdings. In fact by that time a claim form had already been prepared naming both Limited and Holdings as defendants. On 27 November 2003 that claim form was issued. If it had been served, the present dispute would never have occurred, for it would have been within three years of the date of the accident. Unfortunately it was not served within the four months allowed for doing so, and thus lapsed. Almost immediately the solicitors observed their failure and issued a second claim form, again naming both defendants, on 30 March 2003, which this time they served on the very same day. This is the claim form with which the current proceedings are concerned. The first claim form is merely part of the history. The defendants applied to strike out the (second) claim form on the ground that Mr Cressey's claim was time barred. The issue The essential issue, therefore, is whether the date of knowledge when Mr Cressey first had knowledge of the identity of his defendant was, as Holdings submit, 2 December 2000, the date of the accident, or, as Mr Cressey submits, 30 April 2001, when he first learned of the existence of Holdings. If it is the former, the claim is out of time; if the date of knowledge is the latter, the three years still had one month left to run. On 15 July 2004 District Judge Robinson in the Great Grimsby County Court held that the date of knowledge was 30 April 2001 and allowed the claim to proceed. On 8 November 2004 HHJ Cracknell, sitting in the Hull County Court, dismissed Holdings appeal. Both judges below relied on Simpson v. Norwest Holst Southern Limited [1980] 1 WLR 968, where this court, applying the same statutory provisions under the Limitation Act 1975, held that where the employer's identity had been "hidden" under mere reference to a corporate group, the date of knowledge only came when the employee learned his employer's actual name. DJ Robinson nevertheless thought that Mr Cressey was fortunate to be bailed out by his second claim form after the failure of his first, and Judge Cracknell similarly expressed his sympathy for Holdings, wondering whether it was time to revisit Simpson in the light of the CPR. On behalf of Holdings, Mr James Murphy now submits that Mr Cressey knew enough when he knew, as he did right from the beginning, that his defendant in any proceedings would be his employers. He therefore knew the identity of his defendant. If there was any uncertainty as to their correct name, he had three years to pin the matter down. "Identity" was not synonymous with "name". If he made a genuine mistake as to their name, a fortiori if his employers had contributed to his mistake, he could obtain leave from the court under CPR 17.4(3) or CPR 19.5 to change the name of the defendant even after the expiry of the limitation period. Section 14(1)(c), on the other hand, was designed to deal with a different kind of case altogether, such as a hit and run accident, or an industrial disease whose origin cannot be pinned to a particular employer, but not a straightforward case such as the present. The present case was different from Simpson , where the real defendant "hid" his identity. On behalf of Mr Cressey, on the other hand, Mr David Mercer submits that the present case is even stronger than Simpson , in that there the claimant knew that he was employed by a member of a named group even if he did not know the precise name of the group company in question, whereas here Mr Cressey had been given the name of Limited on his pay slips and did not even know of the existence of Holdings until later. Moreover the mistake was more than a mistake over the name of his employers, it was a mistake as to their identity, since Limited and Holdings were different companies with different identities. He was nevertheless prepared to accept that in a straightforward case a claimant could know the identity of his defendant without knowing his precise name. The authorities In Simpson v. Norwest Holst Southern Ltd [1980] 1 WLR 968 the plaintiff was a carpenter on a building site. He had been given a certificate stating that his employer was "Norwest Holst Group". That, however, was not the name of any individual company. When, on 4 August 1976, he was injured at work, his solicitors wrote to "Norwest Holst Ltd" to hold them liable. As in the present case, the reply came from insurers who referred to "Norwest Construction Co Ltd" in their letter. The solicitors remained uncertain as to the correct employer and tried to obtain an answer from the insurers. Ultimately, on 4 July 1976, the insurers identified "Norwest Holst Southern Ltd" as the employers. That was still within three years of the accident, but the solicitors then lost some time getting the intended defendant's name on the legal aid certificate altered. The summons was issued on 17 August 1979, prima facie out of time. The issue was as to the date of knowledge by reference to the plaintiff's knowledge of the identity of the defendant. In a reserved judgment of the court (Lawton, Ormrod and Brightman LJJ) Lord Justice Lawton said this (at 974E/H): "In the circumstances of this case all the plaintiff has to show is that he first had knowledge of the identity of the defendants after August 17, 1976, bearing in mind what knowledge he might reasonably have been expected to acquire. When a man takes a job, he might reasonably be expected to find out who is employing him; and the employers have a statutory duty to identify themselves to the employee in the written statement which they must give him pursuant to section 4(1) of the Contracts of Employment Act 1972. The defendants hid their identity from the plaintiff under the words "Norwest Holst Group". The plaintiff could not reasonably have been expected to ask for further and better particulars of the identity of his employers. We do not know what, if any, notices there were on the building site indicating who the contractors were. There was probably one, maybe more than one, that bore the name Norwest Holst. That was the name on the plaintiff's pay slips and it seems to have been the name which he gave the solicitors when he consulted them in September 1976. Either he, or they, probably they, inferred in September 1976 that Norwest Holst was a limited company. In our judgment, when the plaintiff hurt himself at work, on August 4, 1976, he did not know the identity of his employers and could not before August 17, 1976, reasonably have been expected to acquire the knowledge. The only sources from which he could ascertain the knowledge, namely, the statutory written statement of the terms of his employment and his pay slips did not give him any information usable in legal proceedings. Since the plaintiff had no knowledge of the identity of his employers on August 17, 1976, it is unnecessary to decide when thereafter through his solicitors he might reasonably have been expected to acquire it. It suffices to say that for some time after October 1, 1976, the plaintiff's solicitors acted reasonably in assuming that his employers were Norwest Construction Co Ltd. It follows that on August 17, 1979, the plaintiff's action was not barred by the effluxion of time." As an alternative holding the court in Simpson would also have overriden any time limit as a matter of discretion under the then equivalent of section 33. The court was also referred to Henderson v. Temple Pier Co Ltd [1998] 1 WLR 1540 . That was not an employee/employer case, but the plaintiff was injured on the gangway of a ship. That was in January 1993. In February 1993 she instructed solicitors who did not discover the name of the owners of the ship until July 1994. Proceedings were not issued until April 1997, which it was said was within three years of the date of knowledge. However, this court held that the plaintiff was fixed with constructive knowledge of the identity of the defendant earlier than three years before April 1997, since, contrary to the submission made on behalf of the plaintiff, that knowledge was not ascertainable "only with the help of expert advice" within the concluding proviso to section 14(3). Bracewell J, with whom Beldam LJ agreed, said this (at 1545B/G): "For example he may need expert advice whether the claim should be brought against the occupier, employer, contractor or individual. Having identified the person or persons standing in the appropriate relationship to give rise to a duty, the naming of the party woud not, save in the most exceptional circumstances, be a fact ascertainable "only with the help of expert advice"…If solicitors fail to take the appropriate steps to discover the person against whom her action should be brought, she cannot take refuge under section 14(1)(c) because on the face of it the occupier of the St. Katherine and the gangway was knowledge which she might reasonably have been expected to acquire from facts obtainable or ascertainable by her. Even if the solicitor is to be regarded as an appropriate expert, the facts were ascertainable by him without the use of legal expertise. The proviso is not intended to give an extended period of limitation to a person whose solicitor acts dilatorily in acquiring information which is obtainable without particular expertise…It was not a complex inquiry; a site visit would have clarified the name of the ship and enabled speedy inquiries to be made to reveal the occupier." Discussion and decision On the particular facts of this case, I do not think that the right answer is hard to reach. It is likely that in most cases of an accident at work, the employee will there and then have knowledge of the identity of his employer, and therefore of the defendant. However, in a minority of cases, where the identity of the employer is uncertain, as in Simpson , or even wrongly stated to the employee, as here, the date of knowledge may well be postponed. How long it will be postponed by will depend on the facts of such cases. In general I do not believe that it can be postponed for long: only as long as it reasonably takes to make and complete the appropriate enquiries. But if such enquiries are met by misinformation, or a dilatory response, again as in Simpson , then it is not possible to be dogmatic about the right conclusion. In Simpson , the court only had to cover a period of about two weeks after the accident and therefore did not have to go further into the facts. In the present case, I agree with the submission that the facts are in their way stronger than in Simpson . Although we have been told nothing about Mr Cressey's contract of employment, Holdings have been willing to debate the issue at each level on the basis of the pay slips, which identified Limited as the employer. Significantly, Limited were still representing themselves as the employer down to 15 June 2001 when they wrote their letter of reference, following Mr Cressey's earlier redundancy. Thus this case goes beyond Simpson , where the information "Norwest Holst Group" left the matter uncertain. In the present case, Mr Cressey was misinformed. I do not think that anything turns on Lord Justice Lawton's word "hid". That may reflect a failure of duty to provide a correct employer's name in that case, but in my judgment there is no need, for there to be a lack of relevant knowledge, that the employer is in breach of duty or is deliberately attempting to deceive the employee or to keep him in the dark. It is sufficient that the employee is deprived of the knowledge he needs by being misinformed. In the present case Mr Cressey was misinformed, as has become common ground, and on the evidence before us had no reason to think that any company other than Limited could be his employer until at earliest the receipt on 30 April 2001 of Zurich's first communication. It is not suggested that Mr Cressey was dilatory in instructing solicitors, or that his solicitors were dilatory in writing their letter of claim. Thus it is not suggested that, by analogy with Henderson , Mr Cressey should have clarified the name of his employer in a period earlier than it took for Zurich to respond to the solicitors' letter dated 30 March 2001. Moreover, I agree with Mr Mercer that the difference between Limited and Holdings was more than a difference between mere names and amounted to a difference between identities. There were two separate companies. It was not simply that Mr Cressey first mistook and then took a little time to pin down the accurate name of his employers, in a situation where there was always only one company. In these circumstances the judges below were right to be guided by Simpson . But I would not agree with their suggestions that Mr Cressey was lucky, or that Simpson is out of date in the world of the CPR. Of course the solicitors' failure to serve the first claim form makes it appear that Mr Cressey gets a second chance by a mere fluke. However, in essence the situation is no different from one where there never was a first claim form, and proceedings were first issued on 30 March 2004. The question is whether that is within three years of the date of knowledge, and the answer is that it is – because Mr Cressey was, already as of the date of his accident, misinformed, without any suggestion that it was his fault, about the identity of his employers. Seeing that Parliament has enacted section 14 to extend the basic three year time limit, I do not think that the existence of other procedural possibilities for correcting mistakes even after the expiry of a time limit, such as CPR 17.4(3) or CPR 19.5, means that the reasoning of Simpson has been undermined. It would have to be a matter for Parliament to say that the scope of section 14(1)(c) should be narrowed. Some wider considerations That is sufficient to decide this appeal. However, some wider considerations were canvassed during the course of submissions. For instance, the question was raised whether it would ever be possible to know the identity of a defendant without knowing his name. It was common ground that "identity" was not the same as "name", but I do not think it is possible to be dogmatic about the significance of lack of knowledge of a defendant's name. If it is simply a matter of a known identity, but a mere misnomer, then I think that a claimant probably has the requisite knowledge. However, even Mr Murphy accepted that the concept of identity in the context of section 14 raised the question: "Do you know enough to pursue your claim?" In the absence of a name to put on a claim form, it might be said that not enough is known. Thus "identity" is a difficult concept, because a person's identity can be established in different ways. In one sense a person can be identified by being seen or pointed out; in another sense a person can be identified by a description, which can be more or less general or specific; and in a third sense a person can be identified by name. Depending on circumstances and context, these different means of establishing identity can be more or less helpful. Thus even a specific name can lead to confusion where people of the same name may be involved. Some of these differences and difficulties are discussed in The Sardinia Sulcis [1991] 1 Lloyd's Rep 201 at 207 per Lloyd LJ. The context of the Limitation Act 1980 is that of litigation. The identity of the defendant is obviously one of a number of critical facts for the purpose of the running of time against a would-be claimant. Section 14(3) shows that constructive as well as actual knowledge is relevant where a claimant might reasonably be expected to acquire actual knowledge from facts observable or ascertainable by him, and that would include solicitors retained by him: Henderson . In these circumstances, the identity of a defendant appears to look to something specific enough to enable a person to be identified for the purpose of a claim form, and that is ultimately looking for a name. One cannot sue "the driver of the other car", or even "my employer": a name has to be provided. Moreover, artificial persons, such as companies, can hardly even be described, save by their name. But how does this work in concrete situations? Suppose I slip in my local supermarket and wish to sue the owner or occupier. The well-known name of a supermarket chain is over the door. But which is the company defendant responsible? Is it the corporate plc? If it is, there is no problem and the date of knowledge so far as the identity of the defendant is concerned is the date of the accident. But what if the local supermarket is owned and occupied by a regional company, or a property division company, within the corporate structure? Is that known or ascertainable as of the date of the accident? It may well be that where there has been no breach of duty, as in Simpson, nor any misinformation, but only some element of incompleteness, which I can reasonably be expected to deal with by inquiry, the answer to that question is, yes. But even if not, in my view time could only be extended for the shortest period possible for objectively reasonable enquiries to be made. In the absence of a positively misleading response, therefore, it would remain wise for a claimant to work on the basis that the three years had already begun to run with the date of the accident. In most straightforward situations I think that there will be no difficulty in concluding that the identity of a defendant will be known to or ascertainable by a victim at the time of the accident. In some situations, however, it may be that an identity is only known or knowable in a more general way and that it will not be possible to say that the identity is properly known, even with the assistance of constructive knowledge, until a name has been or could have been attached. Conclusion In sum, this appeal should be dismissed. Lord Justice Jonathan Parker: I agree. Lord Justice May: I also agree that this appeal should be dismissed for the reasons given by Rix LJ. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII