Cain v Francis, McKay v Hamlani [2008] EWCA Civ 1451, [2008] All ER (D) 201 (Dec)
In a case where the defendant has had early notice of the claim, the accrual of a limitation defence should be regarded as a windfall and the prospect of its loss, by the exercise of the discretion under s 33 of the Limitation Act 1980, should be regarded as either no prejudice at all or only a slight degree of prejudice. Under s 33, the basic question is whether or not it is fair and just in all the circumstances to expect the defendant to meet the claim on the merits, despite the delay in commencement: to what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum?
It will also be important to consider the reasons for the delay. Although the delay referred to in s 33(3) is the delay after the expiry of the primary limitation period, it will always be relevant to consider when the defendant knew that a claim
