Wilkins v University Hospital North Midlands NHS Trust [1]
Introduction
This was a trial of a preliminary issue, namely whether a clinical negligence claim brought by the claimant Mr Wilkins was time-barred by virtue of the provisions of the Limitation Act 1980 [2]. The court required to decide whether the claim was brought within 3 years of the claimant acquiring the requisite knowledge of the cause of action [3], or whether if not, the court should nevertheless exercise its discretion in terms of s.33 of the Act and permit the claim to proceed.
Background
The claimant underwent a right knee replacement on 18th November 2008 and left knee replacement on 17 March 2009. He subsequently had problems with the left knee, and had revision surgery on 22 June 2010 and by July 2010 a diagnosis of cellulitis was made. The pain and swelling did not resolve and the claimant was referred for a second opinion. The claimant underwent further surgery and a revision of the knee replacement.
The claimant remained in pain and on 8 June 2012 contacted Solicitors because he was concerned about the surgery and subsequent infection. The Solicitors took on his case and advised him they considered he had reasonable prospects of success. A report was instructed from an expert who did not support a claim for negligence and the Solicitors advised him they were unable to proceed with the claim. The claimant was advised that he had a period of 3 years from the date when he first became aware that he was the victim of negligent treatment to issue a claim should he wish to do so.
The claimant’s pain continued and the left leg was amputated on 22 June 2016. The claimant contacted another firm of Solicitors in June 2016 but it was not until May 2019 that a report was obtained from an expert who concluded that there had been breaches of the duty of care and proceedings were issued on 30 June 2019. The allegation was that there had been a negligent failure to treat the subsequent infection resulting in amputation.
The defendant denied that there was any significant infection or negligent care. It was also argued that the claim was statute-barred as the claimant had the requisite knowledge within the meaning of the Act each time he had complained about pain post-surgery, starting from his visit to his GP in June 2009. Alternatively, he knew enough to satisfy the terms of the Act when he consulted Solicitors in 2012.
On the question of exercise of the discretion of the court it was agreed on behalf of the defendant that there was no specific issue of prejudice as a result of the passage of time. It was argued that given the delay the defendant could no longer recover costs in the event the claimant failed in the action because of the advent of Qualified One-Way Cost Shifting. A core argument for the defendant founded on the merits of the claimant’s case based on the initial expert report disclosed within the papers which did not support a claim for negligence. This report was not relied upon by the claimant in the current action.
On behalf of the claimant it was argued that the relevant date of knowledge did not arise until 2019 when the claimant first received positive expert evidence. The secondary position was that time began to run shortly before the amputation in 2016. Prior to this time the claimant believed that no-one was responsible for his pain.
Alternatively, the claimant asked the court to exercise its discretion under s.33 of the Act. It was argued that there was no prejudice to the defendant in allowing the matter to proceed and although there was a delay in progressing the claim that was not as a result of the fault of the claimant. It was also argued that the effect of the negligence was profound and that this was relevant in the exercise of discretion.
The Legal Framework
The 1980 Act provides a general framework governing the operation of limitation periods. The general rule is that for cases in which it is alleged that a negligent act or omission has caused personal injury the claim must be brought within three years of injury. This is subject to exceptions designed to ameliorate the unfairness that might result from an inflexible application of the time limit.
One such exception is that generally time will not run until the date at which a claimant is deemed to have ‘knowledge’ of his/her injury. This is provided for by s. 11(3) read with s.11(4) which state:
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from—
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
Section 14 of the 1980 Act sets out the test for what amounts to the date of knowledge within the meaning of s.11(4)(b).
(1) Subject to subsections (1A) and (1B) below, in sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts—
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.
It is important to note that Section 33 of the 1980 Act provides a court with a discretion to extend the limitation period. The relevant parts of s33 provide:
(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
(a) the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(3) In acting under this section 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 11or (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.
Legal Cases considered by the court
The court considered that s14 should be capable of ready and sensible application by primary reference to the plain statutory language and sparing use of those cases designed to serve as general guidance.
For the purposes of resolving this particular dispute it was considered that the most authoritative source of guidance is that provided by the House of Lords in Haward & Other v Fawcett [4] and the Supreme Court in AB & Others v Ministry of Defence [5].
In Haward the court examined the degree of knowledge required for time to run under s.14 and the degree of certainty a party must possess and it was said:
…. knowledge does not mean knowing for certain and beyond possibility of contradiction. It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence.
In relation to the ‘attribution’ test it was said that time does not begin to run against a claimant until he knows there is a real possibility that his damage was caused by the act or omission in question. Haward was followed in the majority in AB v MoD. This case was brought by former servicemen said to have sustained personal injuries as a result of exposure to radiation during nuclear testing between 1952 and 1958.
It was agreed by parties that the most authoritative and comprehensive source of guidance to the proper exercise of the court’s discretion in terms of s.33 is contained in Carroll v Chief Constable of Manchester [6]. The court set down 13 separate principles governing the application of s.33. The general principles to be applied are as follows:
1. Section 33 is unfettered and requires the judge to look at the matter broadly
2. The matters specified in section 33(3) are not intended to place a fetter on the discretion given by section 33(1), 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.
3. The essence of the proper exercise of the judicial discretion under section 33 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. Refusing to exercise the discretion in favour of a claimant who brings the claim outside the primary limitation period will necessarily prejudice the claimant, who thereby loses the chance of establishing the claim.
4. The burden on the claimant under section 33 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.
5. Furthermore, while the ultimate burden is on a claimant to show that it would be equitable to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the defendant is, or is likely to be, less cogent because of the delay is on the defendant. If relevant or potentially relevant documentation has been destroyed or lost by the defendant irresponsibly, that is a factor which may weigh against the defendant.
6. The prospects of a fair trial are important. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims, especially when any 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. 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.
7. 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.
8. It is the period after the expiry of the limitation period which is referred to in subsubsections 33(3)(a) and (b) and carries particular weight: 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. 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.
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.
10. Delay caused by the conduct of the claimant’s advisers rather than by the claimant may be excusable in this context.
11. In the context of reasons for delay, it is relevant to consider under subsection 33(3)(a) whether knowledge or information was reasonably suppressed by the claimant which, if not suppressed, would have led to the proceedings being issued earlier, even though the explanation is irrelevant for meeting the objective standard or test in section 14(2) and (3) and so insufficient to prevent the commencement of the limitation period:
12. Proportionality is material to the exercise of the discretion. In that context, it may be relevant that the claim has only a thin prospect of success, that the claim is modest in financial terms so as to give rise to disproportionate legal costs, that the claimant would have a clear case against his or her solicitors and, in a personal injury case, the extent and degree of damage to the claimant’s health, enjoyment of life and employability
The decision
The court concluded that the claim was not brought within 3 of years of the claimant having the relevant knowledge within the meaning of s.11 of the 1980 Act. The claim was brought at least 7 years after time began to run and thus at least 4 years after it became prima facie statute barred.
Following the decisions in Haward and AB v MoD the court found that in order for a claimant to have the requisite knowledge for the purposes of ss.11 and 14, it is not necessary that they appreciate all the details of the claim that they may later formulate against the defendant, let alone that there has been an actionable breach of a legal obligation, before time begins to run.
It was sufficient that the claimant understood ‘in general terms’ the ‘essence’ of the factual case upon which a later claim might be based. 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.
In this case certainly by June 2012 it was held that it was clear that the claimant was, in broad terms, ascribing his ongoing pain in the knee to the treatment he had received from the defendant and he consulted solicitors with a view to bringing a potential claim. The claimant knew ‘in broad terms’ the ‘essence’ of the case against the defendant. Knowledge that the defendant’s 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. 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.
The court did not conclude that the mere fact that the claimant obtained legal advice in 2012 and/or a medico-legal report in 2013, by itself automatically established the requisite level of knowledge. It was recognised that the date on which a claimant first instructed a solicitor might well indicate sufficient knowledge, but that of itself is not automatically determinative in every case.
The court held that it is wholly unrealistic to contend as had been suggested that the date of knowledge was not established until 2019 and the receipt of the positive report from a new expert. The fact of an unsupportive expert report could not act to ‘cancel out’ pre-existing knowledge.
Decision on exercise of discretion
Having rejected the primary argument on behalf of the claimant the court held that it would be equitable in all the circumstances to disapply that time limit and permit the claim to proceed and gave detailed reasons for this approach.
Claim is without merit
A core argument on behalf of the defendant was that the claim was without merit. This was based on the initial unsupportive report obtained by Solicitors in the case. In the course of argument, it was confirmed that the claimant was in possession of a supportive report which had concluded that there were breaches of the duty of care in 2009 and that the amputation was avoidable.
The court did not say that in a clear and obvious case merits cannot be taken into account and recognised that there may be cases in which the merits of the claim are so strong that they impact on the exercise of the discretion of the court. However, it was said that 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. 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 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.
The court rejected an approach which required a mini trial of evidence. It was recognised that the initial expert report suggested that the claimant may face difficulties at trial in both establishing the presence of infection at the relevant times and also breach of duty but did not consider that it is either possible or appropriate to draw any firm conclusions on merits at this stage of proceedings.
The defendant’s Counsel argued that in some way the claimant was bound by the terms of the first expert report although he was unable to identify any relevant provision or authority to make good that point and the court concluded that this was a very poor point. It was said that the conclusions of an expert obtained prior to the issue of proceedings and never relied on at any stage in the proceedings cannot in any sense formally bind the instructing party.
Both parties to the dispute possessed expert evidence supportive of their respective cases. Neither side had disclosed any reports and the Court concluded that there was no proper basis on which it could conclude that the claim was so clearly weak, or so patently strong, that the merits/demerits should have a material impact on the exercise of discretion.
Delay
The court then considered the unjustified delay in bringing the action in conjunction with the absence of real prejudice caused by that delay. There were two relevant periods of delay. The first was the claimant’s delay in progressing his claim after receipt of negative advice from his previous solicitors. The second period of time extends from instruction of second agents to the issue of the Claim Form in June 2019. The court did not consider that the first period of delay could be criticised against the backdrop of the claimant’s health and negative advice received.
The second period of delay was noted to be markedly different and this related to delay in progressing the claim. The length of delay during this period was held to be unjustified. However, with reference to Carroll which relied upon the decision of the Court of Appeal in Corbin v Penfold Metallising Co [7] and the approach in Das v Ganju [8] it was recognised that the sins of the solicitor need not necessarily be visited upon their clients in the exercise of discretion under s.33.
It was noted that the trend in more recent authorities was to focus on a pragmatic assessment of whether a fair trial remains possible rather than on a punitive approach to delay per se. In Cain v Francis [9] and cited with approval in Carroll it was said:
“It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.“
In exercising discretion the court concluded that a fair trial remained possible, unimpacted by the passage of time, and that this should be 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.
Prejudice
In this case the defendant accepted that the passage of time generally had not caused any specific prejudice and that a fair trial of the issues remained possible. The defendant elected not to put in any evidence at trial. Thus, there was no evidence highlighting any form of specific prejudice for example that relevant medical records had been lost, or that the recollection of witnesses, said to be relevant to the resolution of the actual issues in dispute, had faded.
The defendant’s Counsel did suggest 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 previously. The court noted that there was no evidence at all of how such general prejudice transmutes into actual prejudice to the operation of a fair trial in this particular claim. On that basis the forensic value of the submission was said to be very limited indeed.
It was recognised that the substantive dispute between the parties was unlikely to be resolved by the recollection of either patient or clinician of the material events rather than the medical records. Resolution of the issues in the case would primarily turn upon consideration of the medical notes (whether directly, or through reliance upon them by the relevant experts). It was not suggested that this would have been any different if the claim was issued within the primary limitation period.
The only discrete ground of prejudice relied upon by the Defendant was that had the claim been brought before 2013 then the Claimant would not have been able to rely on the ‘Qualified One -Way Cost Shifting’ regime [10] This argument was rejected.
Comment
The rationale for limitation periods is that they protect defendants from stale claims [11] However, claimants may be in a situation where they are unaware that they had sustained injury as a result of the negligence of a defendant/defender and in that situation, they should not be penalised for failing to institute proceedings timeously. The terms of the statute intend to protect claimants in such situations.
In this case the court exercised its discretion to allow the action to proceed and disallowed the limitation period. It is important to note that different statutes apply to the question of limitation in Scotland and in England/Wales although both jurisdictions allow a personal injury action barred by the passage of time to proceed at the discretion of the court. Unlike the English legislation s 19A of the Prescription and Limitation (Scotland) Act 1973 does not list the factors the court should consider in exercising its discretion.
In both jurisdictions the court must balance the degree of prejudice to the claimant caused by the operation of the primary limitation period against the prejudice to the defendant/defender if the action were allowed to proceed.
In Wilkins there was a significant delay in progressing the case but the court did not apply any special consequences when exercising its discretion because of the delay in seeking further legal advice or for the delay on the part of the Solicitors in progressing the claim. It is recognised that delay could have an effect on the defendant’s ability to defend a claim. However, where there is delay it is important to consider the reasons for any delay and the effect of that delay on the cogency of the evidence.
In clinical negligence cases where the full medical records are available, where it is unlikely that practitioners will recall the detail of what occurred and the expert witnesses are able to give evidence it is less likely there is prejudice. Where medical records have been destroyed by the defendants it is arguable that the prejudice is to the claimant [12]. If it is argued that there is prejudice the actual prejudice must be demonstrated to the court. In England the Act specifically refers to the extent to which a defendant responds to reasonable requests for information as being relevant and extends to conduct by defendant’s Solicitors.
In Wilkins the defendant argued that the weakness of the claimant’s case on liability was relevant to prejudice, and clearly the weaker the claimant’s case the less the claimant has to lose by the operation of s.11. However, in this case the defendant relied upon the initial unsupportive report obtained by the claimant’s first Solicitors which was contained within the original papers and which was not referred to in the current proceedings. The court was not prepared to take account of such a report. The claimant indicated to the court that they now had a supportive report on liability and the court was not prepared to engage in what amounted to a mini trial on this issue.
The court considered that on the facts the claim was statute barred but was prepared to exercise its power to allow the action to proceed. In this case the use of the additional power of the court was beneficial to the pursuer although the pursuer still requires to be successful on issues of negligence and causation.
It has been argued there is no need for an additional discretionary power of the court and that this discretionary power should be removed as the rights of claimant’s are adequately protected by the existing statutes. Any kind of discretion plainly reduces the certainty which is one of the objects of limitation. Judges and jurisdictions will reasonably differ in their exercise of this discretion and that can make it difficult to offer advice on prospects. At present however it does appear that this power will remain as an additional argument for claimants to make in such situations.
[2] The Limitation Act 1980 is applicable to actions in England and Wales. The Prescription and Limitation (Scotland) Act 1973 applies in Scotland
[3] Within the meanining of s11(4) of the 1980 Act
[4] [2006] 1 WLR 682
[5] [2013] AC 78
[6] [2017] EWCA Civ 1992
[7] [2000] Lloyd’s Rep Med 247
[8] [1999] PIQR 260
[9] [2009] QC 754
[10] Introduced from 1 April 2013 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LAPSO’)
[11] Report of the Committee on Limitation of Actions in Cases of Personal Injury (1962), cMND.1829 Para 17
[12] Hammond v West Lanarkshire Health Authority [1998] Lloyd’s Rep. Med.146; Whiston v London SHA [2010] EWCA Civ 195
