Section 33 order disapplying limitation in clinical negligence case overturned

In The Pennine Acute Hospitals NHS Trust v De Meza [2017] EWCA Civ 1711 the Court of Appeal considered the relevant factors to be taken into account on an application under section 33 of the Limitation Act 1980.

Background facts

Mr De Meza brought a claim in 2014 against the NHS Trust (the first defendant) and a private doctor (the second defendant), alleging that he had suffered personal injury in the 1980s as a result of clinical negligence regarding hormone treatment. Upon limitation being raised as a defence, it was tried as a preliminary issue and the Recorder found that the usual three year limitation period for a personal injury claim would have expired in 1986. The claimant made an application under section 33 to disapply the limitation period. The Recorder dismissed the application in respect of the second defendant but granted the application in respect of the first defendant. The Trust appealed.

Appeal

The issue to be decided by the Court of Appeal was whether the Recorder had exercised his discretion correctly under section 33.

Section 33(3) says that:

“the court shall have regard to all the circumstances of the case and in particular to –

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 [, by section 11A] or (as the case may be) by section 12;

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he 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;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

Considerations (a) to (f)

The Recorder found that, in respect of (a), the delay was extremely long and that there was no reason for it.

Turning to (b), he decided that the claimant’s evidence was not cogent given the fact he had no real recollection of what had happened in the 1980s and any records he would have relied on had been destroyed. With regard to the cogency of defendants’ evidence, the Recorder decided that the doctor’s memory was “likely to be non-existent”. Additionally the Trust, he said, had “nothing to rely on”. The Recorder found therefore that the evidence of all parties would be much less cogent on account of the delay.

Regarding (c), the Recorder found that there could be no criticism of either of the defendants. In respect of (e), he decided that the claimant, on acquiring the “relevant knowledge” on his own version of events, acted promptly and reasonably in approaching solicitors. Finally as to (f), the Recorder noted that the claimant obtained medical and legal advice and his claim was issued nearly three years later.

The Court of Appeal generally agreed with the above findings.

“All the circumstances of the case”

The Recorder decided that the other relevant circumstances included the doctor’s personal situation: his old age, infirmity and his status as a private person as opposed to an institution. The Recorder said that an allegation of negligence would be more distressing and upsetting against an individual, especially someone with a distinguished reputation like the second defendant. The Court of Appeal said that these were irrelevant considerations under section 33, and that the doctor’s age and poor health were only relevant to an assessment of the quality of his evidence.

The Trust submitted that, given the above comments on the doctor’s circumstances, the Recorder had wrongly relied on the first defendant’s status as an institution. The Court of Appeal said this was a forceful submission and, if correct, the Recorder’s reliance on the defendant’s identity was “misplaced”.

Upon further analysis of the circumstances, the Recorder said that he was “not making any judgment about the merits of any case there may be”. The Court of Appeal said this was an error and that “all the circumstances” required consideration of the merits. In this case the claimant had chosen to stop taking medication which he knew to be effective. The Court said in the unlikely event of there being a breach of duty, proving causation would be difficult. The Recorder should have taken the weakness of the case into account when considering the claimant’s application.

Conclusion

The Court of Appeal overturned the decision to allow the claim against the Trust to proceed. The Court stressed that it did not interfere lightly with the exercise of the Recorder’s discretion, however his decision was “unreasoned and unexplained”.

The Court said that consideration of the circumstances should have included the weakness of the claim and the significant prejudice caused to the defendants by the delay. During this time records had been destroyed and memories had become unreliable. It would therefore be “inequitable” to require the Trust to defend such a claim. It was also made clear that a defendant’s identity (i.e. whether the defendant is an institution or an individual) is not relevant when considering the exercise of discretion under section 33.

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