The limitation period in personal injury and clinical negligence claims runs for three years from either the date on which the alleged events caused some harm (the ‘cause of action’), or a later date on which the claimant might reasonably have become aware that the harm suffered was caused by negligence (the ‘date of knowledge’). Section 33 of the Limitation Act 1980 gives discretion to the courts to allow an action to proceed, even after the limitation period has expired. This can happen long after the initial period because the court must consider:
a) The degree to which the time limit imposed by the Act prejudices the claimant or any person whom they represent; and
b) Whether exercising this discretion would prejudice the defendant in any way.
This raises the question, if the statutory time limit in the first instance clearly benefits the defendant i.e. after the limit expires a claim cannot be brought, how is a court to weigh up balancing the prejudice of the claimant and defendant when considering exercising this discretion?
The recent case of Shaw v Maguire [2023] EWHC 2155 (KB) is instructive in outlining how a court may weigh up the competing prejudices of each party.
The widow and executrix of the estate of Mr Laurence Shaw, brought a claim for damages in clinical negligence against Dr Maguire, a consultant pathologist. The claimant’s estate alleged that in 2007 Dr Maguire negligently misdiagnosed malignant melanoma as benign, which ultimately led to the deceased’s death in 2014. The date of knowledge under the definition of the Limitation Act was deemed to be 2013, and proceedings were eventually brought in mid-2022.
At the trial on the preliminary issue of limitation, the court considered if it would be equitable to extend the limitation period under section 33.
Master Cook highlighted subsections 3(a) and 3(b) of section 33 that the court shall have regard to all the circumstances of the case and in particular as to “the length of, and the reasons for, the delay on the part of the plaintiff” and 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…”.
In this case, the claim by the claimant’s estate had an unfortunate set of circumstances connected to the delay in bringing the claim. The claimant’s first set of solicitors had issued a Claim Form in January 2017 naming the deceased’s dermatologist, Dr Maguire, and another private healthcare provider as co-defendants. Dr Maguire was first notified of the claim against her upon receipt of a Letter of Claim in March 2017, however proceedings were not served against her. Master Cook noted that in February 2017 the claimant’s solicitors had closed their personal injury department and transferred their file to another firm of solicitors. It then appears that in “circumstances that remain unclear” to Master Cook, the file was then transferred back to the first firm. By this point, the expert instructed to comment on breach of duty on behalf of the claimant had mistakenly returned the histology slides to the hospital, believing the matter to be closed, and had not prepared a report. As a result, the claimant missed their deadline to serve proceedings despite the defendant agreeing to a prior limitation extension.
In weighing up whether allowing the claim to be brought would prejudice the defendant, Master Cook considered the following. Firstly, if the claim was brought, the quality of the evidence remained the same in that the histology slides and contemporaneous medical notes were still accessible. Secondly, the testimony of the defendant would not be affected by the further passage of time. Master Cook pointed out that clinical negligence cases revolve around examining the actions of professionals carrying out their daily work, who do not have exact memories of the facts of the case, but instead rely on recounting their typical practices relating to clinical activities - for example, steps taken, risk assessments carried out, and operative warning signs looked for.
Master Cook took the view that the greater prejudice would be suffered by the claimant’s estate if the claim was not allowed to proceed, rather than to the defendant if the claim proceeded. He was in part influenced by the fact that he considered the claimant’s case “could be described as strong” based on contemporaneous histology.
Master Cook’s judgment suggests that courts may be more inclined to disapply the limitation period under section 33 in the claimant’s favour in clinical negligence claims. This is because the evidence is unlikely to be less cogent after a longer period of time due to defendants relying on the accuracy of contemporaneous records (which are kept for a minimum of 12 years, and often for the duration of a person’s life) and accounts of their standard practice, as opposed to their specific recollection of events.
It is also worth noting that courts will be sympathetic to claimants who are reliant on the expertise and advice of their legal representatives, and in particular where those representatives have demonstrated poor conduct.
For further information contact Alice Rendell – Healthcare & Sport Solicitor
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