Keith Patten on the trials of discretion
If there is one thing which seems destined to keep the higher courts in regular employment it is discretion to extend the limitation period in personal injury cases, granted by the Limitation Act 1980, s 33.
As this is a discretionary jurisdiction it might be thought that the Court of Appeal would be reluctant to interfere with the decisions of trial judges, but that does not seem to be the case. If they were interfering in order to impose consistency and predictability that may be understandable.
But the interventions of the Court of Appeal seem to offer little to aid predictability.
Towards the end of 2008 there seemed to be an attempt to impose some sense of order and rationality on one narrow but important area of this jurisdiction. But, as so often in this sphere, 2009 suggests it was one step forward, two steps back.
McDonnell v Walker
In McDonnell v Walker [2009] EWCA Civ 1257 the claimants were involved in a road traffic accident. A claim
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