In the recent case of Azam v University Hospital Birmingham NHS Foundation Trust  EWHC 3384 The Honourable Mr Justice Saini was asked to consider, on appeal, the extent to which the court should exercise its discretion under Section 33 of the Limitation Act 1980 to allow a clinical negligence claim to proceed 18 years out of time.
The appeal failed and provides helpful lessons regarding:
- the basis upon which discretion can be exercised under Section 33(3) of the Limitation Act, and
- the grounds upon which an appeal challenging the exercise of such discretion can be formulated.
The relevant facts
- Mr Azam underwent surgery to his chest on 9 March 1996.
- The surgeon who performed the operation died on 12 April 2014.
- The claimant instructed solicitors in April 2015.
- Proceedings were issued on 20 July 2017.
The decision at first instance where limitation was dealt with as a preliminary issue
The primary limitation period had expired in March 1999. In essence the claimant, who due to a poor cosmetic result was arguing that his surgery had been performed to a poor standard and via an inappropriate technique, had the requisite knowledge virtually immediately post operatively that he had suffered a significant injury.
This left the judge with the question, should equitable discretion be exercised in favour of the claimant (excluding the time limit and allowing the case to proceed) or in favour of the Trust?
The balancing exercise required consideration of prejudice to the claimant and the defendant, the relevant elements in this case being;
- The claimant's reasons for and length of delay
- The extent to which the delay has caused the evidence now available to be less cogent
- The defendant's conduct once the claim was notified
- The speed with which the claimant acted once aware of his claim
- Steps taken by the claimant to obtain expert advice and the nature of that advice
Applying this approach the judge exercised the Section 33 discretion in favour of the claimant in relation to the claim for negligent technique, but not in relation to that part of the claim that alleged a lack of informed consent, as to have allowed it when the surgeon had died well beyond the primary limitation period would have caused undue prejudice to the defendant.
As the claimant was permitted to proceed with his allegations of sub- surgical standard and inappropriate technique the defendant appealed that decision to the High Court.
The appeal was rejected.
The defendant's argument was that His Honour Judge Rawlings had got the balancing exercise wrong by failing to appreciate the extent of 'forensic prejudice' caused as a result of the claimant's delay such that the evidence that remained (from both sides) was too stale to enable the case in relation to substandard technique to fairly proceed.
The judgment contains some helpful analysis and guidance as to the proper approach when mounting an appeal.
The first lesson is how to challenge the exercising of judicial discretion, in summary the grounds are limited to:
- A misdirection in law
- Procedural unfairness/irregularity
- The taking into account of irrelevant matters
- Ignoring relevant matters
- Making a decision that was plainly wrong (a high hurdle- ie. a decision outside the ambit of reasonable disagreement).
Finding no misdirection in law (rather the opposite!) this meant that to succeed, the defendant would need to be able to establish that allowing the case to proceed was a decision that the Judge at first instance was not entitled to reach on all the evidence, the outcome being unfair/unjust. They could not seek a rehearing of the evidence.
The second lesson was how evidence is gathered and presented in a historic claim. Death of a key witness (in this case the surgeon) could in some instances be a 'trump card' but not here. The claimant had adduced expert evidence (the defendant Trust none) that the evidence for poor technique and outcome was still available, by virtue of examining the claimant's chest. There was also no evidence that other staff involved in the claimant's treatment were unavailable.
The appeal judgment concludes with the reassurance that this case should not be seen as a 'precedent setter' and that the floodgates for stale claims are now wide open. As ever, such cases are driven by their facts and if a party doesn't like how they are interpreted and discretion exercised then they need to be aware that upon appeal – the court are limited to exercising a reviewing not rehearing power.
For further information please contact Vicki Swanton.