SECTION 33 APPLICATION IN CLINICAL NEGLIGENCE CASE: THE SINS OF THE SOLICITORS WERE NOT VISITED UPON THE CLAIMANT: ACTION ALLOWED TO PROCEED WHEN IT WAS 5 1/2 YEARS OUT OF TIME

We looked at the judgment in  Shaw v Maguire (Re Preliminary Issues) [2023] EWHC 2155 (KB) in an earlier post where Master  Cook held that the court had a discretion under Section 33 of the Limitation Act 1980 in a fatal claim.  Here we look at the substantive decision itself. The Master exercised their discretion under Section 33 in a clinical negligence case where proceedings had been issued 5 1/2 years outside the primary limitation period and where previous proceedings had been discontinued.

“In circumstances where I have found that the Claimant has not contributed to the delay caused by her former solicitors I can see no reason to visit any of the faults of her lawyers on the Claimant.”

THE CASE

The claimant brought an action for clinical negligence following the death of her husband in 2014.  The allegations of negligence related to a failing to examine histological samples properly in 2007.  Solicitors had earlier issued proceedings but not continued with them. The original samples were still available.  The claimant instructed new solicitors to bring an action against her previous solicitors. Those solicitors gave an indemnity as to costs so that proceedings could be issued against the original defendant.  Master Cook found that these second proceedings had been issued some 5 1/2 years after the limitation period had expired.  Having found that the Court had the power to make an order extending time under Section 33 of the Limitation Act 1980 the Master then considered whether that power should be exercised.

CONSIDERATION OF THE SECTION 33 PRINCIPLES

Master Cook considered the relevant principles in detail.  He found that the 2007 samples were still available.  Applying the section, and the guidance from the Courts, it was appropriate to exercise the discretion in favour of the claimant.

Extension of the limitation period under s 33 Limitation Act 1980

1. 1. I derive the relevant principles from the case of Carroll v Chief Constable of Greater Manchester [2017] EWCA Civ 199 [2018] 4 WLR 32 at paragraph 42:

“i. s.33(3) of the LA requires the Court to have regard to all the circumstances of the case but also directs the Court to have regard to the five matters specified in subsections 33(3)(a)–(f).”

ii. s.33 of the LA is not confined to a “residual class of cases”. It is unfettered and requires the judge to look at the matter broadly: Donovan v Gwentoys Ltd [1990] 1 WLR 472, 477E; Horton v Sadler [2007] 1 AC 307, para 9 (approving the Court of Appeal judgments in Firman v Ellis [1978] QB 886); A v Hoare [2008] AC 844, paras 45, 49, 68 and 84; Sayers v Hunters [2013] 1 WLR 1695, para 55.

iii. The matters specified in s.33(3) of the LA are not intended to place a fetter on the discretion given by s.33(1) of the LA, as is made plain by the opening words “the court shall have regard to all the circumstances of the case“, but to focus the attention of the Court on matters which past experience has shown are likely to call for evaluation in the exercise of the discretion and must be taken into a consideration by the judge: Donovan’s case, pp 477H–478A.

iv. The essence of the proper exercise of the judicial discretion under s.33 of the LA is that the test is a balance of prejudice and the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant: Donovan’s case, p 477E; Adams v Bracknell Forest Borough Council [2005] 1 AC 76, para 55, approving observations in Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128, paras 32 and 33; McGhie v British Telecommunications plc [2005] EWCA Civ 48 at [45].

v. The burden on the claimant under s.33 of the LA is not necessarily a heavy one. How heavy or easy it is for the claimant to discharge the burden will depend on the facts of the particular case: Sayers’s case, para 55.

vi. Notwithstanding the above, there is an evidential burden on the defendant to show that the evidence adduced or likely to be adduced by the defendant is or is likely to be less cogent because of the delay: Burgin v Sheffeld City Council [2005] EWCA Civ 482 at [23].

vii. The prospects of a fair trial are important: A v Hoare, para 60. The LA is designed to protect a defendant from the injustice of having to fight a stale claim, especially when witnesses the defendant might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why: Donovan’s case, p 479A; Robinson’s case, para 32; and Adams’s case, para 55. It is, therefore, particularly relevant whether, and to what extent, the defendant’s ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents: Robinson’s case, para 33; Adams’s case, para 55; and A v Hoare, para 50.

viii. Subject to considerations of proportionality, the defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount: Cain v Francis [2009] QB 754, para 69.

ix. It is the period after the expiry of the limitation period which is referred to in s. 33(3)(a) and (b) and carries particular weight: Donovan’s case, p 478G. The court may also, however, have regard to the period of delay from the time at which section 14(2) was satisfied until the claim was first notified: Donovan’s case, pp 478H and 479H–480C; Cain’s case, para 74. The disappearance of evidence and the loss of cogency of evidence even before the limitation clock starts to tick is also relevant, although to a lesser degree: Collins v Secretary of State for Business Innovation and Skills [2014] PIQR P19, para 65.9. The reason for delay is relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction: Cain’s case, para 73. The latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant’s ability to defend the claim.

x. Delay caused by the conduct of the claimant’s advisers rather than by the claimant may be excusable in this context: Corbin v Penfold Metallising Co Ltd [2000] Lloyd’s Rep Med 247.

xi .Proportionality is material to the exercise of the discretion: Robinson’s case, paras 32 and 33; Adams’s case, paras 54–55. In this context, it may be relevant that the claim has only a thin prospect of success (McGhie’s case, para 48), that the claim is modest in financial terms so as to give rise to disproportionate legal costs (Robinson’s case, para 33; Adams’s case, para 55; McGhie’s case, para 48).”

1. 1. I start by considering the s 33 (3) criteria.

The length of, and the reasons for, the delay.

1. 1. I have already concluded that the length of delay in this case is just over 5 ½ years. I accept that the Claimant took reasonable steps to instruct what she believed were competent solicitors who specialised in clinical negligence claims in November 2014.

1. 1. It seems clear that the solicitors proceeded to obtain disclosure of documents and evidence and their investigations of breach of duty, causation and the correct defendant. I have not been provided with the complete solicitors file but it is clear from the chronology set out in a letter from BLM acting for Whitehead Monkton dated 25 March 2021 that there were initial difficulties in obtaining the relevant medical records. By December 2016 the solicitors had begun to focus on obtaining the relevant histology slides. These had not been obtained by January 2017 and so protective proceedings were issued against Dr Hudson-Peacock and the Chaucer Hospital. It would then seem in February 2017 Whitehead Monkton closed their personal injury department and transferred the file to another firm of solicitors, Marsons.

1. 1. The only progress made whilst Marsons had conduct of the case was that Dr Maguire was identified as the only possible defendant on the basis she had examined and reported on the original histology slides in 2007. In circumstances which remain unclear, the file was then transferred back to Whitehead Monkton.

1. 1. Whitehead Monkton continued to seek production of the 2007 histology slides which they received in July 2017 and forwarded to the expert instructed on behalf of the Claimant, Professor Nicholas Wright. Whitehead Monkton did obtain an extension of time for service of the Claim Form to 19 August 2017. However it would seem that Professor Wright returned the histology slides to the Chaucer hospital because he believed his report was no longer required following the transfer of the case to Marsons. In these circumstances Whitehead Monkton informed the Claimant they could not continue with her claim.

1. 1. As I have found none of this was in any way the responsibility of the Claimant who was left high and dry to eventually attempt some form of recourse with the Legal Ombudsman. Thereafter the Claimant has reasonably followed the course suggested by her new solicitors.

The extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the claimant or the defendant is or is likely to be less cogent.

1. 1. On behalf of the Defendant it was asserted by Mr McCaughley in his witness statement that the Defendant has no recollection of the relevant events which occurred over 15 years ago and in circumstances where she had been told no claim would be pursued.

1. 1. The allegation of negligence against the Defendant is set out at paragraph 11 of the Particulars of Claim:

“a) Failed to fully and properly examine and/or analyse the samples provided to her in 2007 so as to correctly identify the malignancy in the same, whether as alleged or at all;

b) Caused, permitted or suffered the sample taken from the Deceased’s lower back to be incorrectly identified and records as being benign, when in fact it was malignant, whether as alleged or at all;

c) The Defendant’s report on the 2007 samples were a category 1 failure as provided by the Royal College of Pathologists, namely a diagnostic error which was likely to have a definite influence on clinical management and possible outcome, as well as a category 81 failure, namely a diagnosis which is surprising to see from any pathologist i.e. an obvious cancer being reported as benign;

d) Failed in all the circumstances of the case to exercise reasonable skill, care and diligence that was expected from a reasonably competent pathologist, whether as alleged or at all;

e) The Claimant avers that the facts of and surrounding the actions and/or omissions of the Defendant speak for themselves in establishing breach of duty. “

1. 1. In the circumstances as both the histology sample and the Defendant’s report are available the issue will be one that will be the subject of independent expert evidence. Given that the issue relates to the interpretation of the sample it is difficult to understand how the Defendant’s recollection of the events of 15 years ago would be relevant. This state of affairs is common in many clinical negligence cases where it is usual for clinicians to have regard to their usual practice and the contemporaneous medical notes.

1. 1. The issue of causation will also be a matter for independent expert evidence from an oncologist. The Claimant’s evidence is only likely to go to issues of quantum which will be largely based on documentary evidence as is common with many Fatal Accident cases.

Conduct of the Defendant

1. 1. There are no relevant conduct issues.

Disability of the Claimant

1. 1. This is not a relevant issue.

The extent to which the Claimant acted promptly and reasonably once she 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

1. 1. I have addressed this issue both in my findings of fact and at paragraphs 56 to 60 above. It will be apparent that I take the view the Claimant cannot be criticised for acting as she did after June 2013 when she acquired the necessary knowledge.

The steps, if any, taken by the Claimant to obtain medical, legal or other expert advice and the nature of any such advice she may have received.

1. 1. I have addressed this issue in my findings of fact and at paragraphs 56 to 60 above.

The balancing exercise

1. 1. It is clear from the guidance given in the case of Caroll that the Court is exercising an unfettered discretion and that the s. 33 (3) factors place no fetter on exercise of the discretion. The essence of the test to be applied by the Court is a balance of prejudice and the burden is upon the Claimant to show that her prejudice would outweigh that to the Defendant.

1. 1. Mr Ferro placed much reliance on the fact that this was a second action case in circumstances where the Defendant had been told that the first case would not be pursued and where the Claimant had an arguable case of professional negligence against her solicitors. These are not insubstantial points.

1. 1. In the case of Corbin v Penfold Metallising Co Limited Buxton LJ said at [26]:

“Those observations of Sir Christopher Staughton were adopted unanimously by this Court. Mr Tonna said, when asked about it, that each case turns on its own facts, and that we should reconsider this point in the present context: whether the Judge, in truth, was right to attribute the solicitor’s failings to Mr Corbin. I am not, for my part, persuaded that that is so. It seems to me that the Court in Das-v- Ganju was speaking more generally, and certainly saying – as Sir Christopher Staughton said in terms – there was certainly no rule of law to visit the faults of the lawyers upon the claimant, when one is looking at this particular area of the limitation jurisdiction. But even if that is not right, and even if we would be correct in adopting Mr Tonna’s invitation, it seems to me that there is no reason at all in this case, and no justification, for attributing what the solicitors did to Mr Corbin, as a matter of his fault. He did not contribute to the delay in any way. He was a passive observer of what was going on. The fact that the solicitors may or may not have acted properly and the fact that the consultants – not any of those that I have mentioned by name – may or may not have acted properly when consulted, could not possibly be said, in any realistic way, to be Mr Corbin’s fault.”

1. 1. In the case of Rayner v. Wolferstans (A Firm) [2015] EWHC 2957 (QB) Wilkie J , pointed out in the context of a s.33 application that an action against a claimant’s former solicitor was one for loss of a chance and that of necessity that would result in a claimant recovering less than 100% of what they would recover in the personal injury action. At [131] and [132] the judge said:

“13. Furthermore, her ability to succeed against Wolferstans, even to the extent of recovering for the loss of her chance, depends upon her establishing that Wolferstans was negligent. Whilst the claimant contends that she has a good claim in negligence against Wolferstans, that claim too is by no means bound to succeed. I have not, of course, considered in any depth the contentions, respectively, of the claimant and Wolferstans concerning their alleged negligence, but even a cursory examination of the chronology demonstrates to me that the claimant would be by no means bound to succeed in establishing a claim of negligence against Wolferstans.

132. Accordingly, I am satisfied that the operation of section 11 would prejudice the claimant because the alternative remedy against Wolferstans is by no means bound to succeed and would, in any event, result in an award of damages less than that she would receive were she to proceed against Medway and win.”

1. 1. In circumstances where I have found that the Claimant has not contributed to the delay caused by her former solicitors I can see no reason to visit any of the faults of her lawyers on the Claimant. Nor can I be satisfied that the Claimant’s claim against her former solicitor would succeed. It is clear from the evidence before me that the claim was being resisted and there was much about the circumstances surrounding the instruction of Professor Nicholas Wright and the return of the histology samples which was unclear. I am also clear that the Claimant’s alternative remedy, if she were to win, would result in an award of less damages that if she were successful against the Defendant.

1. 1. As for the period between Mr Shaw’s diagnosis in June 2013 and the Claimant instructing solicitors in November 2014 I find it entirely reasonable for her to have concentrated on her husband’s condition and treatment in what they both new were the last months of his life.

1. 1. There is in my judgment clear evidence of prejudice to the Claimant. Firstly the refusal to exercise the court’s discretion under s, 33 of the Limitation Act1980 in favour of the Claimant who is bringing this claim outside the limitation period will cause her prejudice which any alternative remedy would not cure. Secondly I bear in mind the Claimant’s current clinical negligence claim is supported by expert evidence and on the basis of the contemporaneous histology could be described as strong and accordingly the prejudice to the Defendant can be said to diminish. As Martin Spencer J said in Tyres v Ageis Defence Services (BVI) Ltd EWHC 896 (KB) at [67]:

““…On my assessment of the evidence, the claim on behalf of Mrs Tyers (and Georgina) appears to be a strong one: it is important, of course, for me not to pre-judge the claim which remains to be tried on its merits, but insofar as the merits of the claim are a relevant consideration – which must be the case when the court must assess the effect of the delay on the ability of the defendant to defend the claim – the prejudice to the defendant diminishes as the claim gets stronger”.

1. 1. I do not underestimate the impact upon the Defendant, a professional person, of being told that this claim would not proceed, however this is just one factor in the overall balance albeit a strong one in her favour.

1. 1. I am not satisfied that the Defendant has provided any evidence to the effect that she is prejudiced in her ability to defend the claim. Firstly, she is able to give direct evidence regarding her usual practice when it comes to reviewing cell samples. This knowledge will not have been lost through time, in fact it is more likely to have been enhanced by many more years of experience and refinement of her practice. Secondly, the 2007 samples are still available and can be viewed by her and her instructed independent expert. Thirdly, to the extent that they are relevant, which is debateable given the likely issues in this case the 2007 samples are still available and can be viewed by her and her instructed independent expert. Lastly, even if a claim had been brought within the relevant limitation period, it is doubtful that the Defendant would have in fact had a clear recollection of this cell sample review over that or the many hundreds, if not thousands that she had carried out in the intervening years. It is more likely she would have to resort to relying on the contemporaneous medical records which she is equally able to do now.

1. Accordingly when all is put into the balance and taking account of all the circumstances I conclude that any prejudice to the Defendant is more than outweighed by the prejudice to the Claimant and that a fair trial can still take place with substantially the same evidence as would have been available had proceedings been served within the limitation period. Accordingly, it would be equitable to allow this action to proceed by directing that ss. 11 and 12 of the Limitation Act 1980 shall not apply to this claim.