In the case of Shaw v Maguire (Re Preliminary Issues)  EWHC 2155 (KB) Master Cook considered the limitation period as a preliminary issue. In doing so, Master Cook considered whether a claimant could utilise Section 33 of the Limitation Act in Fatal Accident Act claims where limitation expired prior to the deceased’s death.
This case concerned a widow attempting to bring a claim following her husband’s death in January 2014 from metastatic melanoma. The Deceased had been seen by the Defendant in October 2007 with a lesion on his back, and the Defendant told him that his biopsy samples were benign. The Deceased returned to the Defendant in 2009 when his lesion returned and was told in November 2009 that it was malignant. The 2007 biopsies were retested, and the Deceased was advised that the malignancy should have been identified in 2007.
Court proceedings were issued in 2022, but prior to that the Claimant had instructed Solicitors in November 2014, raised a complaint to the Legal Ombudsman in June 2020 after being “left in the dark”, and then found new solicitors whom she commenced the claim with.
Master Cook made a finding that the date of knowledge was June 2013, therefore he considered the claim to have been in time at the date of the deceased’s death. Master Cook went on to consider the appropriate application of the Limitation Act if the limitation period had expired. Within this consideration, Master Cook “expressed some surprise that this issue had not been judicially considered” previously.
The defendant, in formulating their submissions, referred to Kemp & Kemp. This states “[i]f the deceased failed to sue within his own limitation period then no Fatal Accidents Act claim may be pursued, and there is no power to make a retrospective s.33 application to disapply the limitation period once the victim has died: s.12(1).”
The claimant relied upon Clerk and Lindsell on Torts to argue to the contrary. Clerk and Lindsell says inter alia “[a]lthough the possibility that the deceased could have invoked the court’s s.33 discretion is disregarded when determining whether his cause of action was statute-barred, the claimants in a Fatal Accidents Act claim may ask the court to exercise its discretion under s.33 of the Limitation Act 1980 and override the limitation period which would have barred the deceased’s claim, and hence bars theirs. This is provided for by s.33”.
Master Cook opined that the answer is provided by careful reading of Section 12(1) and Section 33(2) of the Limitation Act, and that with careful reading “S.33(2) of the Limitation Act 1980 provides the court may disapply s.12(1) where the reason the person injured could not maintain an action was because of the time limit provided by s.11(4)”. Therefore, he formed the view that the Section 33 discretion could be considered in fatal accident claims where limitation expired prior to the deceased’s death.
Master Cook relied upon the case of MMG3 v Dunn  EWHC 882 (QB) in confirming his interpretation, however, it was acknowledged by the advocates and Master Cook, that MMG3 did not directly address the issue. In MMG3 it appeared that the claim proceeded on the basis that it was accepted that Section 33 of the Limitation Act permitted an extension to be sought by a claimant in Fatal Accident claims, where limitation expired prior to the deceased’s death.
Master Cook went on to consider whether the discretion in Section 33 Limitation Act should be used in this case where the claim was commenced 5 ½ years out of time. He ultimately decided that the prejudice to the Claimant would be greater than the prejudice to the Defendant and utilised his Section 33 discretion.
In the absence of other reported cases which directly address the point, and with the conflicting commentary in the textbooks, it is perhaps surprising that we have not seen this issue be reported on before. However, it is a useful case to be aware of for claimants and defendants alike when considering limitation in claims brought pursuant to the Fatal Accidents Act 1976.
This case summary was written by Emily Slocombe.
 Shaw v Maguire at paragraph 41.
 Ibid At paragraph 47.
 at 3-010.
 Edition 23 at Chapter 31, section 7(e) paragraph 31-70.
 Shaw v Maguire at paragraph 48.
William Meade (Senior Clerk)