Giles Mooney QC wins Section 33 Appeal in the High Court

News

24/04/2019

Giles Mooney QC successfully resisted an appeal from the Defendants in a claim under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. The deceased died from bronchopneumonia, having contracted asbestosis, allegedly in the course of his employment with the Defendants.

The claim was issued in March 2015, within 3 years of the deceased’s death. On the trial of the preliminary issue of limitation, however, the Judge considered that the deceased’s date of knowledge was October 2008, and that limitation had therefore expired in October 2011. The Judge, in an ex-tempore judgment, nonetheless exercised his discretion under s.33 Limitation Act 1980 and allowed the claim to proceed. He held that the delay was excusable and understandable, and that the Defendant was in no worse a position than they would have been in 2008.

This exercise of discretion was appealed by the Defendants, who argued that the Judge had omitted material matters from his consideration and failed to properly direct himself as to the principles to be applied.

On behalf of the Claimant, Giles Mooney QC contended that the Judge applied the correct principles, made findings on the evidence and reached a decision with which an appeal court should not interfere. He cautioned against micro-analysing an ex-tempore judgment, a point with which the appeal Judge, Yip J, entirely agreed.

On a significant issue of law, Yip J disagreed with the interpretation of the Defendant, that paragraph 48 of Carr v Panel Products (Kimpton) Ltd [2018] EWCA Civ 190 required the claimant to adduce evidence of additional prejudice going beyond the loss of the claim.

Adopting the terminology of McCombe LJ at paragraph 44 of Carr, Yip J found in favour of the Claimant, that whilst there were some ‘shaky bricks’ in the first instance judgment, the foundation stones upon which the Judge exercised his discretion were sound. The Judge was entitled to find that the delay was understandable and excusable, and that the Defendant’s position had not materially changed since 2008. It would therefore be inappropriate to interfere with the Judge’s exercise of the broad and unfettered discretion under s.33.

Giles Mooney QC was instructed by Fosters Solicitors Norwich. The judgment can be found here.

Featured Counsel

Giles Mooney KC

Call 1998 | Silk 2019

Latest News & Events

Deka Chambers is delighted to announce that Eleanor Mawrey has been awarded the rank of King’s Counsel

It is with great pleasure that Deka Chambers announces that Eleanor Mawrey has been appointed as King’s Counsel in the Ministry of Justice’s new Silk appointments published today, 23rd of January 2026.   Eleanor Mawrey is an experienced barrister practising in serious crime and is ranked in the Financial…

Thom Dyke prosecutes dangerous rapist sentenced to 30 years’ imprisonment

Thom Dyke was instructed by the CPS to prosecute a man accused of a nine-year campaign of rape and sexual abuse against his young daughter.  He was convicted after standing trial at the Crown Court at Croydon last September.   Passing a sentence of thirty years’ imprisonment,…

Success for Andrew Warnock KC, Jack Harding and Gurion Taussig in the Supreme Court

The Supreme Court has ruled that claims for compensation by a man who killed three people, but was acquitted by a jury in the Crown Court on the grounds of insanity, are barred by the doctrine of illegality. The Claimant, Mr Lewis-Ranwell, sought damages from…

© Deka Chambers 2026

Search

Portfolio Builder

Select the expertise that you would like to download or add to the portfolio

Download    Add to portfolio   
Portfolio
Title Type CV Email

Remove All

Download


Click here to share this shortlist.
(It will expire after 30 days.)