“DENTON” PRINCIPLES DO NOT APPLY TO SECTION 33 APPLICATIONS: HIGH COURT REJECTS DEFENDANT’S ARGUMENT THAT RELIEF FROM SANCTIONS PRINCIPLES SHOULD BE APPLIED TO LIMITATION ACT

December 23, 2018 · by · in Limitation, Relief from sanctions

In Ellis v Heart of England NHS Foundation Trust & Ors [2018] EWHC 3505 (Ch) HHJ McKenna (sitting in the High Court) roundly rejected an argument that the court should apply “Denton” type guidance to a claimant’s application to disapply the limitation period under Section 33 of the Limitation Act 1980.

“I can see no justification for importing into the interpretation of Section 33 of the Act the case law relating to relief from sanctions. The Court’s discretion under Section 33 is unfettered and requires the Court to look at the matter broadly so what is required is a balance of prejudice, all be it that the burden is on the Claimant to show that his prejudice would outweigh that of the 3rd Defendant.”

 

THE CASE

The claimant brings an action for clinical negligence against three defendants relating to treatment that took place in 2013.  The claimant agreed extensions of time in relation to limitation in respect of the first two defendants.  There was no agreement with the third defendant. The third defendant pleaded a defence of limitation and the claimant made an application under Section 33 of the Limitation Act 1980.

THE THIRD DEFENDANT’S ARGUMENTS AGAINST THE EXERCISE OF THE SECTION 33 DISCRETION

The third defendant attempted an argument (that is not uncommon in this context) that “Denton” type principles should be incorporated into the court’s consideration of the Section 33 discretion. This argument was rejected by the judge.

    1. It was urged upon me by Counsel for the 3rd Defendant that when approaching the question of the interpretation of Section 33 of the Act the Court should take a robust approach in line with that taken to relief from sanction applications that post date the decisions in Mitchell – v – News Group Newspapers [2014] IWLR 795 and Denton – v – TH White Ltd [2014] EWCA Civ 906 ; that the Court should look at the entirety of the period of delay and not simply the seven months of delay between the expiry of the agreed extension of time for issue of proceedings and the actual date of issue. Reliance was placed on the Catholic Child Welfare Society case [2018] EWCA Civ 2342. It was also submitted that the reason for the delay was poor given that the Claimant had instructed experienced clinical negligence Solicitors whose conduct was criticized as being dilatory with their repeatedly failing to respond to requests and failing adequately to plead the Claimant’s case on causation and failing to instruct relevant experts timeously.
    2. Criticism was also made of the Claimant and/or his Solicitors in not setting out his position at the earliest opportunity and in particular that it was not until service of his Particulars of Claim that any mention was made of the Claimant complaining of suffering from a headache on presentation at the 3rd Defendant’s surgery which the Counsel for the 3rd Defendant categorised as amounting to a change in the entire nature of the claim.
    3. It was also said that there was obvious prejudice to the 3rd Defendant as a result of the totality of the delay which led to a dimming of memories from the passage of time and which would inevitably affect the cogency of the evidence both of the 3rd Defendant and indeed of the Claimant.
    4. Reliance was also placed on the emotional prejudice caused to the 3rd Defendant as a result of his unequivocal release from the action followed by its resurrection some months later.
    5. By contrast, it was submitted that any prejudice to the Claimant would be limited by virtue of the fact that he could continue to pursue his claims against the 1st and 2nd Defendants where admissions of breach of duty have been made and where it was said the arguments as to causations were very similar.
    6. For my part, I am not persuaded by these arguments and I have no hesitation in concluding that having regard to all the circumstances of the case and the principles enunciated in Carroll, it is equitable to allow the claim against the 3rd Defendant to proceed. I do so for a number of reasons.
    7. I can see no justification for importing into the interpretation of Section 33 of the Act the case law relating to relief from sanctions. The Court’s discretion under Section 33 is unfettered and requires the Court to look at the matter broadly so what is required is a balance of prejudice, all be it that the burden is on the Claimant to show that his prejudice would outweigh that of the 3rd Defendant.
    8. It is plain that as early as the 4th March 2013 when the Claimant’s sister and mother attended on the 3rd Defendant to discuss with him the delay in the referral and diagnosis of the Claimant, the 3rd Defendant knew or ought to have known that the chain of events were likely to be the subject of further enquiry and/or a possible claim for damages.
    9. A formal claim was notified in May 2015 and hence the 3rd Defendant had a relatively early formal notification of the claim which he immediately notified to the Medical Protection Society.
    10. The 3rd Defendant was able to formulate and despatch a Letter of Response (following an extension of time granted at his own request in March 2016.) It follows that the 3rd Defendant had a full opportunity to consider, investigate and respond to the allegations made against him well within the primary limitation period.
    11. It is also not without significance that limitation was extended by agreement with the 3rd Defendant at least until June 2016 and it was submitted on the Claimant’s behalf that in those circumstances it is difficult to conclude otherwise than that, at that stage at least, the 3rd Defendant and his advisers were content that the extension in the period of limitation did not prejudice the 3rd Defendant’s ability to defend the claim being bought against him.
    12. The delay in issuing proceedings beyond the extended limitation period is as it seems to me understandable given that GP expert instructed on the Claimant’s behalf had produced a report which was not supportive of the claim against the 3rd Defendant and, it seems to me no criticism can be directed towards the Claimant in that regard.
    13. Very significantly, the 3rd Defendant has not been able to identify any prejudice that he has suffered or will suffer in the investigation, preparation or presentation of his defence. No documentation has been lost nor has contact with any potential witness been lost. The 3rd Defendant has the benefit of his contemporaneous record of his consultation and his own recollection of the consultation given the contents of his defence. Moreover the 3rdDefendant was notified about the family’s concern within a very short period after the consultation and had the opportunity to discuss the issues with his advisers and to record his recollections well within the primary limitation period. His position is not in any way adversely affected as a result of the delay.
    14. By contrast, the prejudice to the Claimant, should he not be able to pursue his claim against the 3rd Defendant would be profound. He would lose the opportunity to pursue a potentially significant claim against the 3rd Defendant and be left with a possible, but by no means, certain claim for the loss of a chance against his Solicitors and/or Counsel. On any view, the successful pursuit of a negligence claim against Solicitors and/or Counsel in the face of an unsupportive expert report from a reputable expert would be fraught with difficulty.
    15. Nor am I persuaded that the arguments as between the 1st and 2nd Defendants and 3rd Defendant on causation are similar. On the contrary, in my judgment, there is plainly the potential for a different outcome.
Disposal
  1. For all these reasons it is just and equitable to allow the claim against the 3rd Defendant to proceed.
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