LATE AMENDMENT ALLOWED: TRIAL DATE MOVED: A CLINICAL NEGLIGENCE CASE
In G -v- Kings College Hospital NHS Foundation Trust Appeal  EWHC 104 (QB) Mrs Justice May granted the claimant permission to amend the Particulars of Claim even though this meant moving a 7 day trial listed in early April this year. The primary ground was the fact that there was nothing to prevent the claimant issuing secondary proceedings. Allowing amendment would save court time and resources.
- A minor claimant was given permission to amend the Particulars of Claim to plead a case of lack of informed consent.
- The minor was not subject to a limitation defence and there was nothing to prevent fresh proceedings being brought on this ground alone.
- It was in the interests of justice to prevent the risks of a second action and/or “years of satellite litigation”
- The claimant was born in 2009 and was pursuing an action alleging negligence by the defendant in his labour and delivery.
- Proceedings were issued in October 2013 and a defence filed in July 2014.
- Directions were given in January 2015 and the trial window was for 7 days starting 5th April 2016.
- In October 2015 the claimant made an application to amend the Particulars of Claim to add a claim for breach of duty to obtain informed consent, as a result of the the risks associated with home birth.
- This application was heard by the Master on the 30th November, with judgment given on the 3rd December 2015. The Master refused permission to amend.
- This appeal was to the High Court Judge.
REVIEW OF THE PRINCIPLES RELATING TO PERMISSION TO AMEND
Principles to be applied to applications to amend
The task of a court faced with an application to amend has changed. Gone are the days when amendments were nodded through on the basis that there was no prejudice to the other side which could not be compensated in costs. Today prejudice to the administration of justice generally is a consideration equally to be taken into account. The exigencies of listing and the demands of other litigants are such that courts now carefully case-manage the cases before them and require litigants to keep to the timetables which are set. Where the parties seek adjustments to those timetables the overriding objective dictates whether, and if so what, adjustments may be permitted.
In the first-instance decision of Qua Su Ling v. Goldman Sachs International  EWHC 759 (Comm) Carr J reviewed the recent authorities on applications to amend and drew the following conclusions:
“Drawing these authorities together, the relevant principles can be stated simply as follows:
a) Whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted;
b) Where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission;
c) A very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept;
d) Lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done;
e) Gone are the days when it was sufficient for the amending party to argument that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation;
f) It is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay;
g) A much stricter view is taken nowadays of non-compliance with the Civil Procedure Rules and directions of the Court. The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the courts enable them to do so.”
THE APPLICATION OF THOSE PRINCIPLES TO THE FACTS OF THIS CASE
The judge rejected virtually every criticism of the Master’s judgment. However the fact that the claimant was a minor and could, if so advised, issue a fresh action based on lack of informed consent.
“Ground 11: The final substantive ground of appeal concerns the Master’s treatment of the special position occupied by Sasha as a minor and as a person with a disability for the purposes of limitation. At paragraph 37 of his judgment the Master referred to the possibility that a new claim could be brought before concluding:
“..that is an option open to the claimant, but it is not an option that should unduly influence the court’s view of the factors applying to the timing and consequences of this application to amend.”
Mr Glancy submitted that the Master was wrong in setting aside in this way considerations arising from the extended limitation period (Sasha being a minor and s.28 of the Limitation Act 1980 (“s.28”) therefore being engaged) when deciding whether or not the amendment should be allowed. There were two principal considerations, Mr Glancy argued, each of which impacted very importantly on the decision whether or not to permit Sasha to bring the informed consent case by amendment of the existing claim. The first concerned the cost and expense associated with duplication of evidence. As the injury which Sasha sustained occurred during the last stages of delivery, issues of causation arising in a trial of breach of duty during the birth (the existing claim) will be very similar to those arising during a trial of breach of duty to advise of risks prior to the birth (the informed consent claim).
Mr Westcott pointed out in response that the causation issues were not just similar but identical, with the result that provided there was a causation finding in the first trial, it would be binding in the second and that in those circumstances there would be no duplication. He explained that the issue concerned prodromal variations in Sasha’s heartbeat in the period immediately before the injury, whether or not these variations would have been present and/or identifiable and whether delivery would have taken place before the occurrence of the event causing injury (the event being occlusion or near-occlusion of the umbilical cord restricting blood supply to Sasha’s brain). Mr Glancy responded that, although similar, the evidence would not be identical as causation in the first case would necessarily be examined against a situation where mother and baby were taken to hospital during the course of labour, whereas the second contemplated Mrs Georgiev being in hospital from the start of labour.
Although I understand and appreciate, having read the pleadings and the expert reports served to-date, the point that Mr Westcott makes, I cannot at this stage rule out the possibility that there may be factual differences, or at least differences of emphasis, in the causation evidence as between the two scenarios, one where Mrs Georgiev was moved to hospital towards the end of her labour and the other where she was there from the start. Without studying full pleadings, statements and expert reports bearing on the informed consent claim, I am not sure that a finding on causation in the first trial, even assuming that the court made one (it might not were it to decide there was no breach, for instance), would necessarily be binding in the second. I am left with the real concern about a possible duplication of evidence that informed my grant of permission for this appeal. This possibility – of duplication of causation evidence – was not a point raised at the hearing before the Master.
The second consideration arising from the special limitation position became apparent during the course of submissions before me. Having now seen the transcript of the hearing in front of the Master, it is apparent that, whilst there was discussion about what options would be open to the claimant if the amendment was not allowed, and what the defence response to those options might be, no one sought to set out for the Master’s benefit the full implications of a refusal, in terms of the prejudice which the claimant might sustain, or the future burden that the administration of justice might have to bear.
The law in relation to the consequences for parties to a negligence claim of the application of s.28 is clear and remains unaffected by the changes to the CPR. Cases such as Birkett v. James  AC 297, Turner v. Malcolm (1992) SJLB 236, Hogg v. Hamilton  PIQR 387 and Headford v. Bristol and District Health Authority  PIQR 180 all emphasise that, absent exceptional circumstances amounting to abuse, a claimant under a disability may not be prevented from bringing a (properly pleaded) claim within the continuing limitation period. Prejudice to a defendant from delay or indeed anything else, short of abuse, is immaterial. Glidewell LJ made the point in Turner v. Malcolm that striking out or imposing conditions on an existing claim serves only to prolong the period of time before the claim is finally resolved. This approach cannot and should not be regarded as a charter for delay or mismanagement of s.28 cases by parties or their representatives, or as an excuse for such: the setting of a timetable for preparation of the issues to trial, and the use of peremptory orders to compel compliance with it, are the means by which the court and the parties may ensure proper diligence, as Lord Diplock emphasised in Birkett v. James, at 321B-D.
There is no suggestion that the proposed amendment sought in this case is an abuse, nor could there be. Absent any such consideration, in the context of an application to amend, the effect of s.28, in my view, is to skew the balance very considerably in favour of permitting amendment, provided of course that the case is one that is sufficiently arguable and properly pleaded. That is particularly so where the new claim will involve many of the same witnesses and much of the same evidence, as the informed consent claim does in this case. There is, on the other hand, no prejudice to the Trust by allowing the amendment, beyond the ordinary time and trouble associated with having to respond to new allegations, even if it means delaying the trial by a few months.
The position vis a vis the administration of justice, other litigants and other cases, must of course also be considered. It is the impact upon this important “third party” of a vacated trial date which generates the need for the robust approach to late amendments exemplified by decisions such as that in Su-Ling. However, the balancing exercise which the proper application of the overriding objective requires may, in some cases where an amendment is sought, lead to the conclusion that the amendment should be allowed even if the unavoidable result is the loss of a trial date, on the basis that such a course would result in the least prejudice not only to one or other (or both) of the parties but to the administration of justice also. The possibility of such a conclusion is implicit in the following passage from the judgment in Su-Ling: “the risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission” (my emphasis).
Mr Westcott told me that if the Claimant in this case, having had his amendment refused, decided to take the course either of discontinuing and starting afresh, or seeking a trial of the informed consent issues after the first trial had finished, the Defendant would resist either course of action under Henderson v Henderson principles. It takes no very great stretch of the imagination to see the vista opening up of years of satellite litigation, taking up court time and thereby impacting other court users, as well as delaying the final outcome for Sasha very considerably. All this because he did not have his informed consent claim, which s.28 secures for him the right to bring against the Trust indefinitely, heard promptly at the same time as an existing claim arising from the same facts. In the balance which is to be struck “between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted” (per Carr J in Su-Ling), these considerations in my view tell very strongly in favour of permitting the amendment so that there is one trial now at which all claims are heard, even if that means losing the trial date currently fixed for April.
These were all considerations which were raised and developed at some length before me on appeal. Having seen the parties’ skeleton submissions prepared for the hearing before the Master, and having read the transcript of that hearing, whilst I acknowledge that there was passing reference to some of these matters, it was in the briefest of terms and none were developed at any length in argument. It is unsurprising, therefore, that the Master took the approach that he did at paragraph 37 of his judgment. In that respect, and that only, he fell into error when exercising his discretion to disallow the amendment and his decision must be set aside.
Having done so, I must exercise the discretion afresh. Mr Westcott suggested that the Supreme Court decision in Montgomery did not in fact change the position so as to render an informed consent case available now when it had not been before; he submitted that on the Court of Appeal authority of Pearce v. United Bristol Healthcare NHS Trust  PIQR P53, referred to in Montgomery, it was always open to Sasha’s advisors to bring such a case. Viewed in that light, he argued, the new amendment came very late indeed. As to this, even if Mr Westcott is right, the effect of the cases discussing the impact of s.28 is that, unless I were satisfied that it amounted to an abuse to bring the informed consent claim now, then the Claimant has a right to bring it, irrespective of any delay, or inconvenience or prejudice that might be caused to the defendant.
Exercising my discretion in this case therefore, it will be obvious from what I have said above that when considering and applying the overriding objective in this case, in the context of the right given to Sasha pursuant to s.28 indefinitely to pursue his informed consent claim, the amendment ought to be allowed even at the risk of the trial date in April being lost. As I see it, the consolidation of all claims to be heard at one trial is so much more practical and economic in terms of time, trouble and cost both to the parties and to the court system generally than the alternative of sequential trials with possible duplication of evidence and/or prolonged satellite litigation that the amendment ought to be allowed now and a new timetable to trial should be set to prepare for the informed consent case to be heard at the same time as the existing claim. I have asked the parties to address me further as to whether all the issues could be prepared in time for the existing trial date in April, but if they really cannot then I propose to vacate that date with a view to the trial being re-fixed in a new window later this year.
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