COURT OF APPEAL OVERTURNS SECTION 33 ORDER IN CLINICAL NEGLIGENCE CASE
In The Pennine Acute Hospitals NHS Trust v De Meza  EWCA Civ 1711 the Court of Appeal overturned an order under Section 33 of the Limitation Act 1980. The trial judge found in favour of the claimant. This was held to be wrong. The Recorder who made that decision failed to consider the key issue of the prejudice that the unjustified delay caused to the defendant Trust.
“… the recorder placed reliance on the fact that the first defendant was an institution and not an individual…. If that is right…the reliance was misplaced. The fact that a defendant is an institution or, as the case may be, an individual is not, of itself, a matter which can affect the exercise of discretion under section 33.”
The claimant brought an action for negligence alleging failure, in around 1983/84, to ensure he received appropriate testosterone therapy. He sued the Trust and one doctor who had seen him properly. The defendants applied to strike out the case on the basis that it was statute barred. The Recorder who heard the case found that the limitation period had expired in June 1986 (proceedings had been issued in October 2014). The Recorder made an order under Section 33 in respect of the defendant health trust but not in relation to the defendant doctor. The Trust appealed.
THE SECTION 33 ISSUE ON APPEAL
The Court of Appeal considered that the Recorder had erred in the approach taken to Section 33.
“The application under Section 33 LA 1980
If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –
(a) the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 [by section 11A] or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action(e) knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
As to (a) the recorder found, inevitably, that the delay was extremely long and that there was no reason for it, he having rejected the claimant’s evidence about Professor Wynn. Even after the claimant approached solicitors in 2011 proceedings were delayed until 2014. There was, as the recorder found, no explanation for that further delay.
When considering (b) the recorder reviewed the likely evidence to be given by the claimant who was prepared to accept that notes written by doctors were likely to be accurate but did not have any real recollection of what had happened. The recorder concluded that the claimant’s evidence as to events in the 1980s was not cogent and that, taken with the deficiencies in the documents, rendered “his evidence and the evidence of anybody else much less cogent.” He then considered the evidence of Dr Enoch. Dr Enoch is, “I am told, 77 years old and in poor health. He is retired. All his own notes and documents have been destroyed; as have the North Manchester General Hospital records and so nothing has been recovered apart from the letters to the general practitioner which are in the general practitioner files.” He went on to conclude that Dr Enoch had nothing to rely on apart from his memory “which is likely to be non existent at this stage in time, even if he was a fit 77 year old. Any evidence he may give is likely to be lacking in cogency.” The position of the first defendant was even worse “They have nothing to rely on. They do not even know if there was an appointment and if there was, what happened. They cannot resurrect any institutional memory of these events at all, and in practical terms if this case proceeds I recognise that it will have to be dealt with by the first defendant by way of cross examination only. It seems very unlikely unless some miraculous document appears that they will be able to call any evidence of their own at all.” These were very powerful findings on the effect of delay on the cogency of the evidence.
As to subparagraph (e) the recorder concluded that notwithstanding the lack of evidence on this issue “I am prepared to assume in his favour that he only had that knowledge in 2011 and that he acted promptly and reasonably thereafter.” As to (f) he had obtained medical treatment and consulted solicitors and his claim was pleaded nearly three years later in October 2014.
The recorder considered (paragraph 22) that the circumstances of the case included Dr Enoch’s age and infirmity “and the fact that he is an individual human being, rather than a body and that the natural reaction to …proceedings being brought suggesting he was negligent is bound to be one of distress and upset.” These were all irrelevant considerations in this case, as was the recorder’s view that “it was a question of reputation and a life spent giving conscientious care to patients.” Age and infirmity may be, and were here, relevant to an assessment of the quality of the evidence a party may give but they are not of themselves factors to weigh in the balance against a claim being heard.
The recorder acknowledged that the claimant had spent years struggling with the effects of the condition “and it would be a very serious decision to deprive him of any action he may have.” He went on to say that he was “not making any judgment about the merits of any case there may be, but I am bound to assume that on the surface there is a case which may have merit and which but for the limitation point the claimant would be entitled to put before the court.” This was an error. In considering “all the circumstances of the case” the recorder was entitled to and should have looked at the merits, particularly given his earlier findings that as at November 1981, when he was 20, the claimant had stopped taking the medication, knowing that it was effective in the treatment of hypogonadism. He was 22 when he saw Dr Enoch in 1983 but he did not seek a follow up appointment nor did he ask any medical professional for a renewed prescription. This is all of a piece with the recorder’s finding that the claimant may have been concerned that the medication was causing weight gain, notwithstanding the clearly expressed view of Dr Shalet to the contrary. It is difficult to see how, even if there had been a breach of duty (as to which there must be real doubt,) the claimant could have proved causation. The recorder was entitled to and should have taken into account that this was a weak claim.
The recorder went on to opine that this was a very finely balanced case and concluded that it would be appropriate to disallow the limitation provisions in respect of the first defendant “but not for the reasons I have already given in respect of the second defendant.” He acknowledged that it would be open to the first defendant to bring a claim against the doctor but expressed the hope that this would not happen. He then reverted to the second defendant and said, “I think to bring to this court a 77 year old doctor, who has long retired without the benefit of any records, at a time when he has been asked to deal with things that happened 40 [this should be 30] or more years ago would not be equitable. Therefore… I propose to give a direction that the claim against the second defendant should be dismissed.” This was followed by a direction that the claim against the first defendant should proceed. The recorder gave no reasons for this latter decision. Ms Hughes submits that it appears that the recorder placed reliance on the fact that the first defendant was an institution and not an individual, given his observations in respect of the second defendant with which I have dealt at paragraph 22 above. If that is right, and there is force in the submission, then the reliance was misplaced. The fact that a defendant is an institution or, as the case may be, an individual is not, of itself, a matter which can affect the exercise of discretion under section 33.
Section 33 LA 1980 gives the judge a wide discretion when considering an application to disapply the limitation period and it is not for this court lightly to interfere with the exercise of that discretion. However as is plain from paragraphs 23 and 24 above, the recorder’s conclusion in respect of the first defendant is unreasoned and unexplained. To the extent that the reasoning may be inferred it is erroneous. In my judgment, the conclusion cannot be upheld. The recorder did not exercise his discretion in accordance with Section 33.
This court has all the evidence necessary to consider the application under section 33. I would carry out the section 33 exercise afresh, taking account of the recorder’s findings of fact contained in paragraphs 18-23 above. The delay from the expiry of the limitation period is 28 years. Delay of itself is not a reason to refuse to extend time; it is the effect of delay on the ability of the defendant to defend the claim that matters. The prejudice to the defendants resulting from the very long delay, which was not of their making, was stark. It is inescapable that had proceedings been brought by 1986 the first (and indeed the second) defendant would still have retained their records which would have revealed whether appointments were sent to the claimant, whether he attended and what was done. As the recorder made clear there were no records, save the letters held by the GP. Neither the claimant nor the second defendant had any reliable memory.
In his oral submissions, the claimant observed that there were sufficient documents for his solicitors to formulate the case. This is true but his case was that there had been no follow up as a result of which he had suffered injury. Those issues could not fairly be tried given the combination of the absence of any relevant documents and the inability of those involved reliably to remember anything.
I acknowledge that, in theory, the claimant had a potential claim but for the reasons I have already developed, it faced very real difficulties. Taking account of all the circumstances to which I have already referred at some length I am not satisfied that it would be equitable for the first defendant to be required to defend such a claim. On the contrary, it would be inequitable.
I have referred to the flawed reasoning in respect of the recorder’s decision to disapply the limitation period in respect of the claim against the second defendant but I am satisfied that the conclusion was ultimately correct. Much of the reasoning in respect of the first defendant applies here also. There was no appeal against this conclusion and it is not necessary to say any more about it.