UNSUCCESSFUL APPEAL AGAINST JUDGE’S DISCRETION TO EXERCISE S.33 DISCRETION IN FAVOUR OF A CLAIMANT: DECISION TODAY

In Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB) Mr Justice Saini dismissed a defendant’s appeal when a trial judge had allowed the claimant’s application under Section 33 of the Limitation Act 1980.  This judgment highlights the balancing exercise that the court has to undertake when considering the Section 33 discretion, the fact that a defendant alleging prejudice is best advised to adduce direct evidence of such prejudice, and the very difficult nature of an appeal against the exercise of judicial discretion.

“… the Trust adduced no evidence at all of any steps it had taken to try to trace any other witnesses it had identified (but which it could not trace), let alone any issue with their likely recall of events, if traced. I note in this regard that the witness statement of Ms Morris-Thomas, Legal Officer of the Trust, prepared 4 years after the first notification of a claim, makes no mention of any untraced or untraceable witnesses. These are matters which mandate evidence if a party wishes to assert prejudice given the evidential burden is on the party asserting prejudice”

LIMITATION AND SECTION 33: FORTHCOMING WEBINAR

Limitation and Section 33 issues (including this case) are being considered in a webinar on the 4th February 2021  “Limitation Problems and Pitfalls”.  Details are available here. 

THE CASE

The claimant brought a clinical negligence claim in relation to gynaecomastia surgery that took place in 1996.  A trial was held on the preliminary issue of limitation. The judge found that the primary limitation period had expired in March 1999.  An application was made under Section 33 and the judge held that it was equitable to extend the limitation period. The trial judge exercised the Section 33 discretion in favour of the claimant in relation to the claim for negligence, but not in relation to that part of the claimant’s claim that alleged a lack of informed consent. The defendant appealed that decision.

THE DEFENDANT’S UNSUCCESSFUL APPEAL

The defendant appealed to the High Court. Mr Justice Saini rejected the defendant’s appeal.

    1. The Trust challenges this exercise of discretion. It says the Judge was “manifestly wrong” in his conclusion. In argument, it relied upon two particular matters but, as I said during oral submissions, they seem to me to be raising essentially the same point. I will summarise the core of the arguments below which were presented as separate grounds.
    2. In his attractively presented submissions on Ground 1, Counsel for the Trust argued that the Judge erred in his assessment of “forensic prejudice” and failed to give due weight to the forensic prejudice faced by the Trust in defending the claim. He submitted that early in his Judgment, the Judge appeared to accept that the Trust’s forensic prejudice was not limited to the loss of the operating surgeon, Mr Campbell, but in the “staling” of the evidence generally. Counsel submitted that the Judge was right to do so: other clinicians involved in Mr Azam’s care are bound either to be unavailable, less available or have a more clouded recollection of events than had the claim been brought in time.
    3. It was further submitted that, similarly, the quality of Mr Azam’s evidence was bound to have gone stale with time. Reliance was placed on the fact that the Judge had earlier found against Mr Azam on the section 14 LA 1980 points in relation to date of knowledge, rejecting his evidence (it is argued) as likely to have gone stale.
    4. Counsel for the Trust submitted that when (at the end of his Judgment) the Judge came to assessing the forensic prejudice faced by the Trust, he fell into error in two material respects.
    5. I summarise the points as follows:
(a) First, the Judge was wrong to ignore the collateral forensic prejudice faced by the Trust. The Judge had already found this to be a potential head of prejudice, and was wrong to exclude it from further consideration, alternatively did not afford it appropriate weight. It is complained under this head that the Judge accepted a submission for Mr Azam that medical records were detailed and impressive. In fact, this was not common ground and the operation record contains scant detail. Counsel did however accept when I asked this question, that there was no appeal against this finding of fact as to the state of the medical records.
(b) Second, the Judge was wrong to decide that the loss of the operating surgeon as a witness in the case did not amount to any or any significant forensic prejudice. Counsel for the Trust submitted that such a loss is the “very epitome” of forensic prejudice. Were Mr Campbell still alive, it is said he would undoubtedly have been a witness in the case and would have been in a position to provide the experts and the court with an account of his standard practice in 1996, his reasons for advising and undertaking the surgery he did, and his account of the outcome.
    1. Basing himself on the above arguments, Counsel for the Trust submitted that (having regard to Cain v Francis [57]) had the Judge taken the proper approach to the forensic prejudice suffered by the Trust in this case, he would have reached a different conclusion as to whether an extension was equitable.
    2. Under Ground 2, and in relation to the Trust’s argument that the Judge failed to perform the necessary balancing exercise, it was submitted that although the Judge properly listed the factors that section 33 of the LA 1980 required him to have in mind, he did not (or did not appear to) actually perform a balancing exercise of those factors in coming to his decision. It was argued that had he done so, he would have reached a different conclusion.
    3. In particular, it was submitted to me that the Judge should have found that the following list of factors (which I call “the shopping list”) weighed heavily in the Trust’s favour: the length of the delay (s.33(3)(a)) – egregiously long at eighteen years; the reasons for the delay (s.33(3)(a)) – none were advanced, other than that Mr Azam had accepted advice from the surgeons that this was a reasonable cosmetic result; the effect on the evidence (s.33(3)(b)) see above; the Trust’s conduct (s.33(3)(c)) – none, despite Mr Azam’s assertions to the contrary; disability (s.33(3)(d)) – none, despite assertions to the contrary; promptitude (s.33(3)(e)) – entirely lacking; steps taken by Mr Azam to take advice (s.33(3)(f)) – not relevant.
    4. Overall it was said that on these facts, had the Judge performed the balancing exercise properly, he would have reached a different conclusion. Counsel said that the points all essentially went one way.
    5. On Mr Azam’s behalf, Leading Counsel forcefully argued that under each of the Trust’s sub-grounds of appeal, the appeal is essentially an attack on the Judge’s evaluation of the weight to be given to specific pieces of evidence.
    6. It was said that there was no error of law on the part of the Judge and reliance was placed on the established case-law, considered in more detail below, concerning the narrow and confined bases upon which an appellate court can interfere with discretionary assessment of the section 33 LA 1980 type.
    7. As to the reliance on the specific sub-factors in section 33(3) (Ground 2), Leading Counsel for Mr Azam said that the Judge clearly had each of these matters in mind when arriving at his conclusion and was entitled to hold that many of them were of relatively minor importance. It was submitted that the Judge was also entitled to give substantial weight to the lack of prejudice to the Trust.

V. Appealing discretion

    1. At this stage it is important to restate some basic principles concerning appellate challenges to the exercise of a discretion at first instance.
    2. I base my summary on a number of well-known cases including G v G [1985] 1 WLR 647 (HL), Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311 (CA), Chief Constable of Greater Manchester Police v Carroll [2018] 4 WLR 32 (CA), and Kimathi & Ors v Foreign and Commonwealth Office [2018] EWCA Civ 2213 (the latter two cases being concerned specifically with section 33 of the LA 1980).
    3. An appellate court will only interfere with a discretionary evaluation where an appellant can identify one or more of the follows errors:
(i) a misdirection in law;
(ii) some procedural unfairness or irregularity;
(iii) that the Judge took into account irrelevant matters;
(iv) that the Judge failed to take account of relevant matters; or
(v) that the Judge made a decision which was “plainly wrong”.
    1. Error type (v) requires some elaboration. This means a decision which has exceeded the generous ambit within which reasonable disagreement is possible.
    2. So, even if the appeal court would have preferred a different answer, unless the judge’s decision was plainly wrong, it will be left undisturbed. Using terms such as “perversity” or “irrationality” are merely likely to cause confusion. What is clear is that the hurdle for an appellant is a high one whenever a challenge is made to the outcome of a discretionary balancing exercise. The appellate court’s role is to police a very wide perimeter and it will be rare that a judge who has exercised a discretion having regard to relevant considerations will have come to a conclusion outside that perimeter. I would add that an appellate court is unlikely to be assisted in such challenges by a simple re-argument of the points made to the judge below. It needs to be underlined that an appellate court in an appeal such as the present is exercising a CPR 52.21(1) “review” power. It is also well-established that the weight to be given to specific factors is a matter for the trial judge and absent some wholly unjustifiable attribution of weight, an appellate court must defer to the trial judge.

VI. Analysis

    1. Before turning to the two Grounds of Appeal, it is important to consider as a preliminary matter whether in the Judge’s general approach to the section 33 question, there was any misdirection in law.
    2. In my judgment, it is clear there was no misdirection in law:
(a) First, the relevant terms of section 33 were set out in the Judgment and it is plain that the Judge had them closely in mind as he went systematically through his analysis.
(b) Second, the Judge was correct to direct himself (Judgment, para.16) that the burden was on Mr Azam to establish that it would be inequitable not to extend the relevant time-limit, but the evidential burden of showing that the evidence adduced or likely to be adduced by the Trust was less cogent, was on the Trust: Carroll at [42.5].
(c) Third, the key question (and the question which the Judge rightly asked himself in reaching his decision) was whether, stepping back and surveying “all the circumstances of the case” (the opening phrase of section 33(3)), it is “fair and just” (the meaning of “equitable”) to allow the action to proceed, relying (as the Judge did) on: Cain at 773D & 775D.
(d) Fourth, in fairness and justice, a defendant only deserves to have the obligation to pay damages (if liability is established) removed if the passage of time has significantly diminished its opportunity to defend itself: Cain at 774F. The Judge correctly directed himself on this point: Judgment, para.24.
    1. The significance of these preliminary points is that before one comes to assess the discrete complaints about the exercise of the discretion (and the Judge’s assessment of the individual factors), one starts from the position that the Judge’s directions in relation to the approach to the legal test upon which the discretion rested were impeccable.
    2. Once that conclusion is reached, the task of the appellate court becomes heavily circumscribed: was the Judge entitled to reach the determination on the basis of the individual factors evidenced before him, stepping back and looking at the overall fairness and justice?
    3. I underline that this question does not allow the appellant to lay out its shopping list of factors for and against the exercise of the discretion and to simply seek to reargue the points argued before the Judge on appeal. An appellant’s analysis of a route by which, in analysing the section 33 factors, a judge at first instance might have reached a different decision is not an appropriate exercise on appeal.

Ground 1: analysis

    1. I reject this ground. Stripped back, it is essentially a thinly disguised attack on the Judge’s exercise of his discretion. The Judge’s approach to limitation in relation to both the informed consent complaint (where no complaint is made) and the negligence complaint was correct in law and well within his discretion.
    2. The starting point is that the Trust’s written submissions acknowledge that the Judge referred to the relevant considerations. They argue however that had the Judge taken what they label “the proper approach” to the forensic prejudice suffered by the Trust the Judge would have reached a different conclusion. It is clear to me that the Judge’s approach to the issue of prejudice was both justified on the evidence before him and correct in law.
    3. A finding under section 33(3)(b) that having regard to the delay (underlining added), “the evidence adduced or likely to be adduced…is likely to be less cogent…”, cannot be made in reliance upon bare assertion in submissions. It requires at the very least some evidential or sound inferential basis upon which to make findings about what evidence was not just possible, but likely; and that it was not just possible that it would be less cogent, but “likely” so to be.
    4. Putting to one side Mr Campbell’s absence, before the Judge the Trust adduced no evidence at all of any steps it had taken to try to trace any other witnesses it had identified (but which it could not trace), let alone any issue with their likely recall of events, if traced. I note in this regard that the witness statement of Ms Morris-Thomas, Legal Officer of the Trust, prepared 4 years after the first notification of a claim, makes no mention of any untraced or untraceable witnesses. These are matters which mandate evidence if a party wishes to assert prejudice given the evidential burden is on the party asserting prejudice: LB Haringey v FZO [2020] EWCA Civ 180 at [114-115]. The need for evidence of prejudice in relation to assertions of witness tracing or recall problems was also highlighted in Carroll at [51].
    5. Accordingly, the Trust’s assertions concerning other witnesses (repeated on appeal before me) are pure speculation in the absence of evidence, which the Judge would have been entitled to exclude entirely from consideration or weigh against the Trust. But it appears that, benevolently to the Trust, the Judge did bear the point in mind to some extent. He was right to note however that other (factual) witnesses were unlikely to be important concerning whether the surgeon was negligent.
    6. As to the submission that the quality of Mr Azam’s evidence was bound to have gone stale with time, it is clear that the Judge’s reason for finding against Mr Azam on the section 14 date of knowledge issue was not on the basis of a rejection of his evidence as likely to have gone stale. The Judge in fact simply preferred the Trust’s submissions that section 14 knowledge (that the injury was significant) did not also require there to be knowledge that the injury was a negligent caused one or the surgical outcome worse than he could reasonably have expected it to be.
    7. I also reject the submission that the Judge ignored or did not give appropriate weight to collateral forensic prejudice and wrongly held that the medical records were detailed and impressive. This does not accurately record the Judge’s finding. What he said was: (underlining added): “The medical records of the defendant pre-operation and the operation itself and as to what happened thereafter appear on their face to be relatively comprehensive and have been kept and will be available to the court at the trial” (Judgment, para.26). The underlined words are important. The Judge was not making final findings on how comprehensive the records were, but noting his impression.
    8. The Trust has accepted that this is a finding of fact, which cannot be disturbed on appeal. This point accordingly does not advance the appeal.
    9. In any event, I found persuasive the submission on behalf of Mr Azam that if the Trust is right that the records contain little detail, any forensic prejudice arising would not have resulted from the delay in commencing proceedings, as it must do to weigh against the exercise of the discretion: Carroll at [48-50].
    10. But even ignoring the absence of a link with culpable delay, it would be wrong in principle (as well as very odd), if the Trust could rely upon its own clinician’s shortcomings in record keeping as a ground of prejudice in its favour. This would encourage poor practice and make it forensically advantageous, which would be perverse.
    11. Even if the claim had been brought before Mr Campbell’s death, it would have been difficult for him to add significant information which did not appear in those records because:
(a) as the Judge found, it is highly unlikely that he would have recalled the operation, even if the claim had been brought in time; and
(b) any such additional information if material should have been recorded in the records.
    1. I would add that the care with which the Judge approached questions of collateral forensic prejudice is evident from his decision to refuse the exercise the section 33 discretion in relation to the claim alleging a lack of informed consent. I have set out his reasoning in full above. There was a dispute about whether the consent form was correct in indicating a discussion about the downsides of surgery and other options. Balancing the relevant factors for and against but giving precedence to the prejudice to the Trust’s ability to defend, the Judge refused to permit that aspect of the claim to proceed. He was entitled to infer there was obvious prejudice to the Trust arising from the lack of Mr Campbell’s evidence.
    2. It was open to the Judge to take a different approach in relation to whether the operation was performed negligently. In that regard I can see no error in his approach which was to give weight to the existence of the medical records and to conclude that the issue turned on expert evidence.
    3. It is the death of Mr Campbell which the Trust places at the high point of it case, describing this as the “the very epitome of forensic prejudice.”. This is to assume that which the Trust bears the evidential burden to establish. Contrary to the implication in this appeal the death of the impugned operating surgeon in a case of alleged negligent surgery does not fall to be treated as necessarily prejudicial to the defence of the claim.
    4. At the level of principle, prejudice is not self-proving by reason of the death of the clinician or in every such case the section 33 discretion would be automatically exercised in favour of the defendant. It is clearly an important factor and may in some cases be of very substantial weight. In clinical negligence it is not determinative: Mossa’s Estate v Barbara Wise [2017] EWHC 268. But even in abuse cases it is not a trump card for a defendant. I note that in DSN v Blackpool Football Club Ltd [2020] EWHC 595, the defendant’s key witness, a football coach who it was alleged engaged in sexual abuse against the claimant had died after the expiry of the primary limitation period but prior to the claim being issued, and another relevant witness for the defendant, a youth manager, had also died. Despite these two deaths and the claim being issued 22 years out of time, the limitation period was extended at [68].
    5. The Trust’s assertions about what assistance Mr Campbell’s evidence would have provided to any Trust expert are a matter of speculation upon which the Trust called no evidence and cannot make out the evidential burden. I was addressed orally by Counsel for the Trust as to what Mr Campbell may have been able to say in his witness statement. However, none of this had any evidential basis and how this would have helped the experts was not a matter on which there was any evidence before the Judge.
    6. In this regard, the Judge was entitled to find that Mr Campbell’s account as to his standard practice would have been unlikely to have been of much assistance to the court beyond what the experts say as to whether the operation was carried out negligently or not, especially with the notes available to the Court.
    7. The Judge had available to him and was entitled to attach weight to the fact that Mr Azam’s expert, Mr Goodacre said in his report that the wrong technique was used and the operation was carried out very badly. The evidence as to what was done in the operation and how well it was done “remains in effect in the appearance of Mr Azam’s chest, according to his expert, which was examined by his expert and can be examined by the defendant’s expert” (Judgment, para.26).
    8. The relevant expert evidence from Mr Goodacre was uncontradicted by any expert evidence for the Trust at the limitation trial. Even if a “full blown” responsive expert report was not called for at this stage on ground of proportionality, a report explaining even in outline terms how the evidence of the operating surgeon would be relevant to the claim could have been commissioned.
    9. The Trust chose not to call expert evidence to make good the evidential burden of asserted prejudice. That was a litigation decision open to it, but it carries risks in a trial situation. If it had called such evidence, experts might have opined that Mr Campbell’s factual evidence was needed in order for the Trust’s defence to be properly advanced.
    10. But with no such evidence before him, there was no error in the Judge resolving the balancing act against the Trust, bearing in mind Mr Azam’s expert evidence. I emphasise that this was a trial and not an interlocutory hearing. Given the nature of the type of errors said to have been made by Mr Campbell, the Trust had to establish its case on prejudice flowing from Mr Campbell’s death by evidence and not mere assertion. Ground 1 fails.
    11. I also have no hesitation in rejecting Ground 2. It proceeds on the ambitious basis that the Judge “failed to perform the balancing exercise”. Yet, throughout the material parts of the Judgment, that is exactly what the Judge was doing.
    12. First, he undertook that exercise in deciding (in the Trust’s favour) that Mr Azam could not pursue the lack of informed consent issue. And he did the same thing in deciding (in Mr Azam’s favour) that Mr Azam could pursue the negligence claim. Both of those decisions followed correct directions in law, identification of the material factors and a balancing of those matters.
    13. The attack made by the Trust on appeal is simply an attempt to reargue the case on discretion. What the Trust has not been able to persuade me of is that there was any error in the Judge’s crucial conclusory paragraph 27.
    14. In paragraph 27 of his Judgment, the Judge held that the remaining considerations in the section 33(3) shopping list were of “relatively minor importance”, and there was no real prejudice to the Trust as regards its ability to defend the claim. This followed his conclusion at paragraph 26, which I have upheld above, that the death of Mr Campbell was in the circumstances of this case unlikely to have been of much assistance in establishing prejudice.
    15. This was not in any event a case where the factors all went one way. Even if (contrary to this view) the balance sheet was heavily weighed against Mr Azam, there was no error of law in the Judge’s approach to give the lack of prejudice point significant weight. That was a matter for him.
    16. I emphasise that what the Judge decided in this case (and what I have decided on appeal) does not set some precedent that stale claims are permissible, even when the treating physician has died. Each case depends on its own facts. I accordingly reject the suggestions made in writing on behalf of the Trust, but not repeated orally, that there would be some form of “floodgates” problem if the Judge’s approach in this case to the Section 33 issue is upheld.
    17. Overall, I reject the complaint that the Judge failed to conduct the balancing exercise required or that his ultimate conclusion was plainly wrong. There was no need for the Judge (when he came to the negligence claim) to restate all of the legal principles which he had clearly and correctly stated and applied a few paragraphs earlier when dealing with the informed consent claim. The suggestion that he had forgotten and failed to apply those principles when considering the negligence claim is fanciful. Ground 2 fails.

VII. Conclusion

  1. The Judgment is unimpeachable. The Judge directed himself correctly in law, identified the relevant considerations on the evidence and these were the considerations which informed the exercise of his section 33 discretion. He also gave clear and succinct reasons for his conclusions. The Judgment is all the more impressive given that it was delivered ex tempore.
  2. The appeal is dismissed.