In this very useful judgment, the Saini J restated the relevant legal principles in relation to the exercise of discretion under section 33 of the Limitation Act 1980 (“the Act”) and held that there was error of law on the part of the first instance judge (following a preliminary issue as to limitation) in concluding that it was equitable to allow the Claimant to pursue his clinical negligence claim even though it had been issued more than 18 years out of time and the Defendant’s operating surgeon had died.
The Claimant alleged that the gynaecomastia surgery performed in March 1996 by a consultant surgeon, for whom the Defendant Trust had assumed responsibility, was negligently performed and that as a result he had suffered severe pain as well as chest wall distortion and significant scarring. It was also alleged that there was a lack of informed consent in carrying out the procedure. The claim was issued in July 2017, more than 21 years after the procedure had been carried out and thus 18 years after primary limitation had expired. The Trust had submitted only an outline Defence, relying primarily on a limitation argument. By the time that proceedings had been issued, the operating surgeon was no longer alive, having died in April 2014.
At the trial of a preliminary issue as to limitation, the judge held that the primary limitation had expired in March 1999 because the Claimant had the requisite knowledge (as to the significance of his injury) for the purposes of section 14 of the Act almost immediately after the operation, thus preferring the Defendant’s evidence as to date of knowledge. There was evidence that at least two years post-operatively the Claimant was dissatisfied with the results of the operation but that the Claimant did not act promptly after he raised the possibility of having revision surgery in 1998. The judge also held that there was no concealment on the part of the Trust for the purposes of section 32 of the Act and that there was no disability or excuse as to why the Claimant had not brought proceedings promptly. As to the informed consent claim, the judge concluded that it would not be equitable to allow the Claimant to pursue that claim out of time as there might well be significant prejudice to the Trust if that claim were to proceed. However, the judge concluded that it was equitable on the facts before him to give the Claimant permission to pursue his negligence claim out of time, applying section 33 of the Act, as he was not satisfied that there was significant real prejudice to the Trust in terms of its ability to defend the claim as a result of the passage of time beyond the limitation period.
In the appeal, the Trust sought to challenge the judge’s exercise of discretion in favour of the Claimant in relation to the negligence claim on the basis that his conclusion was “manifestly wrong”. The Trust advanced two separate grounds, although Saini J considered that “essentially the same point” was being raised. First, it was contended that the judge erred in his assessment of “forensic prejudice” and failed to give due weight to the forensic prejudice suffered by the Trust as a result of the death of the operating surgeon and the “staling” of the evidence. Secondly, it was contended that the judge failed to perform the necessary balancing exercise under section 33: had he done so, he would have reached a different conclusion.
The nature of an appeal challenging the exercise of judicial discretion
Saini J helpfully restated the basic principles as to appellate challenges to the exercise of a discretion by a judge at first instance at  –  and explained that the hurdle for an appellant is a high one as an appellate court is exercising a CPR 52.21(1) “review” power and will only interfere where an appellant can identify one or more errors as follows:
- A misdirection in law;
- Some procedural unfairness or irregularity;
- That the judge took into account irrelevant matters;
- That the judge failed to take account of relevant matters; or
- That the judge made a decision which was “plainly wrong”.
In relation to error type (v), he explained that this meant “a decision which has exceeded the generous ambit within which reasonable disagreement is possible”. The role of the appellate court 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”.
Saini J held that it was clear that there was no misdirection in law by the judge below. The judge had correctly identified that the burden was on the Claimant to satisfy him that the section 33 discretion should be exercised in his favour. However, he also identified that there was an evidential burden on the Trust in relation to the prejudice that was said to have been caused by the delay i.e. that the evidence adduced or likely to be adduced would be less cogent. The judge also properly directed himself in accordance with the leading case of Cain v Francis  EWCA Civ 1451 as to the exercise of discretion under section 33. The judge’s directions in relation to the approach to the legal test upon which the discretion rested were impeccable.
Satisfying the evidential burden as to prejudice
Saini J rejected the first ground of appeal, finding that it was essentially a thinly disguised attack on the exercise of the judge’s discretion.
In considering the relevant circumstances of the case and factors section 33 factors, the judge accepted that the operating surgeon’s evidence was no longer available to the Trust because of his death, and also that there may be difficulty in tracing witnesses or, if witnesses could be traced, the witnesses’ recollection of the events in question. The judge also accepted that the Claimant had not acted promptly and had no excuse or reason for not acting promptly. Nor was there any conduct on the part of the Trust that could be relied upon by the Claimant for the purpose of section 33(c).
However, as to whether the evidence adduced or likely to be adduced by the Claimant or Defendant is likely to be less cogent, there needed to be at least some evidential or sound inferential basis upon which to make findings about what evidence was likely to be less cogent. Such finding could not be made on the basis of bare assertion as was the case in this appeal. Apart from the operating surgeon’s absence resulting from his death, the Trust had not adduced any evidence at all of any steps it had taken to try to trace any other witnesses, let alone any issues regarding the recall of those witnesses of relevant witnesses. Such matters mandated evidence in order to satisfy the evidential burden on the Trust as to evidential prejudice. Otherwise, the Trust’s assertions were pure speculation in the absence of evidence and the judge would have been entitled to exclude those assertions entirely from consideration or weigh them against the Trust.
Further, the finding against the Claimant in relation to the requisite knowledge for the purposes of section 14 of the Act did not mean that the quality of the Claimant’s evidence was bound to have gone stale with the passage of time.
The judge had noted that the contemporaneous medical records appeared on their face to be relatively comprehensive and would be available to the court at the trial. Saini J made clear that it would be wrong in principle as well as odd for the Trust to be able to rely on any shortcomings in its own clinician’s record keeping as a ground of prejudice in its favour. To do so “would encourage poor practice and make it forensically advantageous” to keep poor records, which would be “perverse”.
Importantly, Saini J made clear that death of the clinician would not mean that in every such case the section 33 discretion would be automatically exercised in favour of the defendant. Whilst it was clearly an important factor and may be given substantial weight in some cases, it was not determinative in clinical negligence cases, and even in abuse cases death was not a trump card.
The judge concluded that the issue in relation to negligence turned on the expert evidence and the Trust’s assertions as to what assistance the operating surgeon’s evidence would have provided to any expert on behalf of the Trust was a matter of speculation. The Trust had called no evidence and could not make out the evidential burden. The judge was entitled to attach weight to the fact that the Claimant had produced expert evidence as to the Claimant’s injuries and the way in which the procedure had been performed. The Defendant’s expert would be able to examine the Claimant. Even if a “full blown” responsive expert report was not called for at the preliminary issues limitation trial on the grounds of proportionality, a report (even if in outline terms) was required in response to the Claimant’s expert evidence to explain how the evidence of the deceased surgeon would be relevant to the claim. As it was, the Claimant’s expert evidence was uncontradicted. In the absence of such evidence, there was no error in the judge resolving the balancing act against the Trust.
The nature of the s33 balancing exercise
In the same way that the judge had performed the balancing exercise appropriately in relation to the informed consent issue when he decided in favour of the Trust, he had done so in relation to the negligence claim when he decided against the Trust. The judge had correctly stated and applied the appropriate legal principles in relation to the informed consent claim. “The suggestion that he had forgotten and failed to apply those principles when considering the negligence claim is fanciful”.
Saini J rejected this ground on the basis that it was simply an attempt to reargue the case on discretion. It was not a case where the factors went all one way. Even if “the balance sheet was heavily weighed against [the Claimant]”, the judge did not err in law in giving the lack of prejudice to the Defendant significant weight.
Section 33 requires the court to balance the prejudice the claimant would face in not bringing a claim as a consequence of the provisions of sections 11, 11A or 12 of the LA (expiry of the primary limitation period) against the prejudice the defence would face as a result of the delay in bringing the claim when deciding whether it would be equitable to allow the claim to proceed out of time. Although there is a burden on the claimant to satisfy the judge that the section 33 discretion should be exercised, there is an evidential burden on the party asserting prejudice to prove that there is likely to be prejudice as a result of the passage of time.
Although Saini J was careful to emphasise that there would be no form of “floodgates” problem as a result of his judgment (and that of the judge below) as it did not set “some precedent that stale claims are permissible, even when the treating physician has died” and each case depends on its own facts, both claimants and defendants will no doubt take careful note of the judgment.
Claimants are likely to be encouraged that the death of the relevant clinician is not a trump card and that the passage of almost two decades without excuse before bringing a claim would not automatically mean that a court would refuse to exercise the section 33 discretion in a claimant’s favour. However, considerations may be different where the issues relate to informed consent, as opposed to negligence where the contemporaneous records and expert evidence may be more determinative.
Defendants will be reminded that if they are to pursue a limitation defence it would be risky to do so half-heartedly and without advancing any evidence (whether factual or expert evidence) as to the prejudice likely to be suffered.