The Facts – Wilkins
Deputy High Court Judge Hermer QC determined as a preliminary issue whether the claim against the Defendant Hospital for negligently failing to treat a significant post-knee replacement infection on 12 March 2009 was statute barred. The Claimant had attended A&E on 28 March 2009 due to concern with his wound. He subsequently had regular orthopaedic review, and as a result had revision surgery on 22 June 2010. He continued to suffer from pain and swelling to the left knee, and later underwent an arthroscopy of the left knee and eventually a total knee replacement revision on 17 January 2012. The Claimant was in discussion with solicitors from June 2012 and received in March 2013 an orthopaedic report that contained a caveated conclusion that there was no breach of duty. The Claimant accepted his then-solicitors’ advice that the claim would not continue and proceeded no further. His knee subsequently continued to deteriorate, leading eventually to an above knee amputation on 22 June 2016. He instructed new solicitors and proceedings were finally issued on 30 June 2019.
The Defendant pleaded that the Claimant had the requisite knowledge on each occasion that he had complained about pain post-surgery, starting from a visit to his GP in June 2009 when he stated a belief that he had a left knee infection post-operatively.
The Facts – Aderounmu
Master Cook similarly determined as a preliminary issue whether the claim against the Defendant GP was statute barred. The alleged negligence concerned a failure to refer the Claimant for urgent investigations for a possible stroke. Four days after the index review on 23 November 2009, the Claimant suffered a stroke with resulting serious neurological injury. The Claim was issued on 10 October 2017, however, the Claimant asserted he was and always had been a protected party since his stroke.
The Defendant asserted that at all times the Claimant had capacity to conduct litigation.
Expert Joint Statements
Master Cook as an aside noted in respect of the joint psychiatric statement that it was “an overly lawyered document comprising 34 questions many of which had numerous sub clauses and in places descended into cross-examination. This is not helpful to the court. A joint statement should aid the understanding of key issues and each expert’s position on those issues.” Similarly the joint neuropsychological report “asked many questions which were nothing more than a cross-examination of the experts on their respective approaches or attempts to advance the arguments on behalf the parties’ respective position.” He cautioned that “Parties should resist the approach that has been taken in this case, a joint statement by experts pursuant to CPR 35.12 is for the benefit of the court and should not be a proving ground for the parties’ respective cases. Written questions should be put to experts under CPR 35.6 within 28 days of the service of an experts report.”
Master Cook referred to the relevant test under the Mental Capacity Act 2005, and further noted both that the question of capacity is issue specific and that an individual may have subject matter capacity but not litigation capacity.
Master Cook identified that in light of the expert evidence the principal issue was the extent to which the Claimant could hold and retain information pertinent to his decision making, and whether the statutory presumption of capacity was displaced. He held that the medical records demonstrated that the Claimant had been able to obtain documents from his treating clinicians for the purpose of assisting his immigration case and various other issues in his life, and noted that no concern had ever been raised about the Claimant’s mental capacity by health professionals familiar with the issue of mental capacity in patients following stroke (including clinical psychologists who met him on almost 20 occasions) during either his four-month hospitalisation or subsequently over a period of almost nine years. Master Cook also emphasised that in this period of time the Claimant made decisions requiring mental capacity about a number of complex health and ‘life’ issues. He concluded that the Claimant currently had capacity to litigate and had done so at all material times:
“I have no difficulty in concluding on the basis of all the evidence before me … that, with appropriate assistance, the Claimant could deal with issues and make decisions in this litigation concerning the liability of the GP namely the fact that he should have been referred onwards and as to causation, that his current condition was the result of his GP’s failure to refer. I am also satisfied that the claimant is able to give instructions about his losses and his current condition so as to enable particulars of his damages to be provided. I am also satisfied that he is able to understand and weigh the pros and cons of any offer of settlement that might be made. None of this requires him to understand every element of his case and the full content of every expert report, this would be beyond most average litigants in clinical negligence claims.”
Master Cook in Aderounmu referred to the familiar authorities of Nash v Eli Lilly & Co  1 WLR 782 at 409 F, Johnson v Ministry of Defence  EWCA Civ 1505 and Adams v Bracknell Forest Borough Council  1 AC 76 for the principles that the requisite knowledge for the purposes of s.11 of the Limitation Act 1980 (i.e. that the injury was significant and at least partially attributable to the tortious act or omission, as well as of the identity of the Defendant) requires a state of mind of sufficient certainty to justify the Claimant embarking on the preliminary steps for making a claim for compensation. Further, knowledge can be both actual or constructive, in particular considering the constructive knowledge that would have resulted from expert advice that a Claimant ought reasonably have been expected to seek. The reasonableness of seeking such advice depends on the Claimant’s situation, which includes the consequences of the injury that he has suffered.
With regards to the discretionary extension of time under s.33 of the Limitation Act, Master Cook referred to a number of the factors from the well-known summary by Sir Terence Etherton MR in Chief Constable of Greater Manchester Police v Carroll EWCA Civ 1992 at . He noted that the burden is on the Claimant to show that the prejudice to them by not exercising that discretion would outweigh the prejudice to the Defendant, with the burden not necessarily being a heavy one. Further, the Defendant has the evidential burden of showing that the evidence adduced, or likely to be adduced, by them is, or is likely to be, less cogent because of the delay. It is particularly relevant whether and to what extent the Defendant’s ability to defend the claim is prejudiced due to the lapse of time because of the absence of relevant witnesses and documents. Lastly, proportionality is relevant – including whether the claim has only a thin prospect of success, or is modest in value, and the extent and degree of damage to a Claimant’s health, enjoyment of life and employability; and whether the Claimant would have a clear case against their own solicitors. Master Cook concluded by reference to Cain v Francis  EWCA Civ 1451 that “Overall the more recent authorities stress the importance of focusing more on the question of whether it is still possible for a fair trial to take place than on a punitive approach to delay.”
Deputy High Court Judge Hermer QC stated that the most authoritative guidance relevant to the claim before him was the House of Lords in Haward & Other v Fawcetts  1 WLR 682 and the Supreme Court in AB & Others v Ministry of Defence  UKSC 9. He held that the relevant principles were that the Claimant must know enough for it to be reasonable to begin to investigate further; and the Claimant must only appreciate in broad terms that his problem was capable of being attributed to the index breach – the ‘essence’ or ‘essential thrust’ of the act or omission to which his damage is attributable. He concluded that “In the context of a clinical negligence claim it is not necessary that the claimant appreciates the precise mechanism by which s/he has sustained an injury but rather it suffices that there is an understanding in broad terms that the medical care may be a possible cause of injury.”
Deputy High Court Judge Hermer QC also referred to Carroll and, in addition to the factors cited by Master Cook in Aderounmu, referred to the Defendant only deserving to have the obligation to pay due damages removed if the passage of time significantly diminished their opportunity to defend the claim on liability or quantum; that it is the period after the expiry of the limitation period that has particular weight; and that the reason for delay is relevant and may affect the balance “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” – albeit that delay caused by a Claimant’s advisers rather than the Claimant may be excusable.
Limitation application – Wilkins
The Claimant in Wilkins argued that his date of knowledge did not run until May 2019 when he first received positive advice from an orthopaedic expert, or alternatively when he was told in 2016 shortly prior to his amputation that he had osteomyelitis. He had previously been under the mistaken misapprehension that no one was to blame for his ongoing pain and had been advised that no claim existed. This was consistent with the advice that he had received through much of this period from his treating clinicians to the effect that his recovery, whilst slow and imperfect, was not a cause for concern.
Deputy High Court Judge Hermer QC held that by June 2012 it was clear that the Claimant was at least in broad terms ascribing his ongoing pain in his knee to the treatment he had received from the Defendant, to the point where he consulted solicitors –
“There is little doubt therefore that by this date the Claimant knew ‘in broad terms’ the ‘essence’ of the case against the Defendant. His appreciation of the nature of the potential claim in 2012 may well have been different to the basis of his pleaded case in 2019, not least the focus of critique might have been on surgical technique rather than control of infection, but he certainly knew that his ongoing difficulties were capable of being ascribed to substandard care by the Defendant. Knowledge that the Defendants medical care could be attributed to his ongoing pain is the type of ‘broad knowledge’ sufficient to start time running under s.11, indeed it was this knowledge that led him to take the preliminary steps of investigating a claim by the instruction of solicitors. I reject the submission that the test as applied to this case, required the Defendant to appreciate the precise mechanism of injury, i.e. that it might be a failure to manage infection that was the cause of ongoing pain, rather than surgical technique or the type of screws utilised. That degree of knowledge does not equate to the less demanding test of knowledge of the ‘broad thrust of the case’. This is not the type of case (in contrast, for example, with certain types of industrial injury) in which a Claimant needs complex medical, or other expert, investigation, to work out whether he has an injury attributable to another. By the time he approached solicitors in June 2012 the Claimant suspected with sufficient certainty (i.e. that it was reasonable to investigate) that his ongoing pain could be broadly attributed to his care at Cannock Chase under Mr Shaylor.
To be clear, I do not consider that the mere fact that the Claimant obtained legal advice in 2012 and/or a medico-legal report in 2013, by itself automatically establishes the requisite level of knowledge. The judgments of the majority in AB illustrate that whilst the date on which a Claimant first instructs a solicitor might well indicate sufficient knowledge, it is not of itself automatically determinative in every case (see, for example Lord Wilson at §13). Here though it is clear to my mind that the circumstances under which the Claimant approached his former solicitors (disgruntlement with his treatment in light of ongoing pain) that at least by 18 June 2012 after a consultation with a solicitor, confirming that they would take on the medical negligence case, that the Claimant had the requisite knowledge – indeed he was advised in clear terms that it was considered that a claim had reasonable prospects of success. It is to my mind wholly unrealistic to contend that the date of knowledge was not established until 2019 and the receipt of the positive report from a new expert – that is a submission divorced from the test propounded by the authorities in circumstances in which the Claimant had previously instructed solicitors to proceed with essentially the same claim 7 years earlier.
Accordingly, in my judgment, the Claimant had the requisite knowledge prior to the receipt of the report by Mr Radford. As Mr Stagg accepted the mere fact that Mr Radford’s report concluded that liability could not be established cannot act to ‘cancel out’ pre-existing knowledge (see Nash v Eli Lily [1993 1 WLR 782 at 795E-F). As set out above, the Claimant had the requisite knowledge before Mr Radford had been instructed.” [Emphasis added]
Accordingly, the claim was brought at least seven years after time began to run and thus at least four years after it became prima facie statute barred.
When it came to the application of s.33, Richard Hermer QC rejected the Defendant’s submission that given the Claimant’s previous expert had identified that there was no breach of duty the Claimant would have ‘an impossible hill to climb’ in making good his claim –
“In my judgment, save in the very clearest of cases, a Court should exercise real caution before conducting a merits assessment as part of the s.33 balancing exercise. This is for at least three reasons.
Firstly, although in Principle 10 of Carroll, Sir Terrence Etherton MR, states it might be relevant to the assessment of proportionality to take into account that the claim “only has a thin prospect of success”, I do not read that as a general exhortation to assess merits other than in the clearest of cases. Such a (mis)reading would be inconsistent with paragraph 60 of the judgment where his Lordship said:
“So far as concerns the legal strength of the claim, it would be entirely inappropriate at this stage to conduct a mini-trial on very limited evidence. It cannot be said that the claim is so weak or inherently implausible that it could be stuck out or dismissed on summary judgment.”
I take this passage as making plain that generally speaking a Court should refrain from taking a view on merits save in the clearest cases, i.e. where is it obvious that a case has only thin prospects of success. In so far as this conflicts with the obiter observations of Stuart Smith LJ in Dale v British Coal Corporation  PIQR 373 who, whilst cautioning against determining merits generally, said (at 381) that “All that can be done and should be done is for the judge to take an overall view of the prospects of success…” then I respectfully prefer the subsequent more cautious approach of the general guidance provided in Carroll.
Secondly this cautious approach to the assessment of merits, save in the clearest of cases, is borne out of both principled and practical concerns as to how it could be fairly and transparently integrated into the s.33 balancing exercise. If a claim is so weak that it is bound to fail, then the Court has relevant powers to dispose of it under the strike out and summary judgment provisions. The CPR, and the considerable body of case law that has built up around summary disposal powers, provide very clear legal tests that enable the court to apply a transparent and consistent approach to the assessment of merits…
Thirdly, as stated, none of this is to say that in clear and obvious cases the merits cannot be taken into account. An example of this is AB v MoD where counsel for the claimant accepted that his case was unsupported by expert evidence and indeed irreconcilable with binding authority. Equally, there may be cases in which the merits of the claim are so strong that they should impact on the exercise of discretion, for example because the defendant has made a relevant admission.
The question is therefore whether this claim can be properly classified as so weak that the Court can properly take the merits into account in the exercise of its discretion under s.33. I do not consider that it can.” [Emphasis added]
Deputy High Court Judge Hermer QC went to hold that the most relevant factor was the tension between what he considered to be unjustified delay and the absence of any real prejudice caused by that delay. He distinguished between the delay in the Claimant progressing his claim after receiving negative advice from his previous solicitors and that after the instruction of his current solicitors. With regards to the first, he held it could be explained by a mix of an understandable response to that negative advice and the serious deterioration in his health – “It was not in any sense unreasonable of the Claimant to reject that advice – there was no obvious reason for a layperson to conclude that it was wrong or was based on a misunderstanding.” In respect of the second period there was a lackadaisical attitude to progressing the claim with only glacial progress made and the length of delay was unjustified. However, when it came to prejudice the most the Defendant was able to say that “the passage of time can always be expected to cause ‘general prejudice’ not least in a clinical negligence claim where experts are to be asked to recall what the level of acceptable clinical care was many years ago. As a matter of generality that may be right but absence any evidence at all of how such general prejudice transmutes into actual prejudice to the operation of a fair trial in this particular claim, the forensic value of the submission is very limited indeed. This is particularly so where, as here, the substantive dispute between the parties is unlikely to be resolved by the recollection of either patient or clinician of the material events rather than the medical records.” He concluded that “notwithstanding the delays in this case it would be equitable, in other words, fair and just, to allow the action to proceed. It is not just the fact that a fair trial remains possible that bears heavily on the exercise of discretion …. It is… the fact that a fair trial remains possible, indeed pretty much unimpacted by the passage of time, taken with the seriousness of the underlying claim and its importance to the claimant (concerning as it does an allegation of mistreatment leading to amputation of his leg) and also that he himself cannot be deemed culpable for the majority of the delay.”
Limitation application – Aderounmu
Master Cook reviewed various references in the Claimant’s medical records concerning the extent to which he had made contemporaneous comments concerning his anger at the Defendant for failing to refer him to hospital. He concluded that “The Claimant certainly had the knowledge in December 2010 that his injury was significant. It is clear that by this time he knew that his injury was attributable to an omission on the part of his GP and that this was probably a breach of duty.” Accordingly he had actual or constructive knowledge no later than 20 December 2020.
In applying s.33, Master Cook noted with regards to the reason for delay that it was a finely balanced decision that he had litigation capacity. He also accepted that “he may have had strong Christian principles which would have predisposed him against making a claim against his GP, this is clearly recorded in his medical notes. It is also clear to me that he was recorded as being in a very emotional state about the issue. There is also in my view a difference between making a complaint to the GP or hospital about what had happened and taking legal advice with a view to bringing a civil claim.” It was likely that until October 2017 the Claimant was primarily pre-occupied with conducting his immigration litigation.
With respect to the cogency of the evidence “in common with many clinical negligence claims the medical records will be of central importance and in this case they are all readily available. As I have already observed Dr Colvin has an independent recollection of the consultation and does not appear to be in anyway handicapped by the passage of time from giving a full and accurate account of her actions. This is to be contrasted with the usual position which is that the medical practitioner has no independent recollection of the consultation and has to rely on a combination of the medical notes and their usual practice. The standard of care provided will be the subject of evidence from appropriate GP experts which it would seem both parties have already obtained.”
Master Cook concluded that: “Standing back considering all the circumstances of the case and balancing the prejudices to the Claimant and to the Defendant, in my judgement the balance comes down in favour of the Claimant whom has undoubtedly suffered a serious neurological injury. I am particularly satisfied that it will be possible to have a fair trial of the issues arising in this claim. In the circumstances I find that it would be equitable to allow this action to proceed.”
These judgments are valuable demonstrations of the overall approach that can often be taken by the courts in interpreting the Limitation Act 1980 in clinical negligence cases. On the one hand there is a relatively strict application of the knowledge-based limitation period with the extent to which an injured Claimant is in effect put on notice by the fact of their injury and not expected to know the precise mechanism of that injury. Further, claimants should expect defendants to trawl their contemporaneous medical records as to their reaction to their injury. On the other hand there is a more generous exercise of discretion, particularly in cases that are largely dependent on expert interpretation of medical records rather than particular clinician recollections. The reality is that many clinicians have limited recall of individual patients even within the primary limitation period and it is often going to be difficult for defendants to demonstrate significant additional prejudice through any additional loss of recollection due to the passage of time.
Master Cook’s warning concerning the content of joint statements is also a useful reminder of the need to consider expert agendas carefully, less the resulting statement runs foul of the same criticisms as made in Aderounmu. Lastly, Master Cook’s assessment of the Claimant’s capacity is a helpful example of how the question of litigation capacity is approached, particularly in the context of a limitation argument that a claimant lacked capacity and therefore that the limitation clock never started to run.