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Articles | Fri 30th Jul, 2021
A judgment has been handed down today in the High Court following a trial of preliminary issues as to whether a clinical negligence claim brought by Mr Donald Wilkins was time-barred.
Mr Wilkins’ case is that he suffered from chronic infection following a left knee replacement in 2009, which was inadequately managed by the operating surgeon at the time, and that he suffered ongoing problems in the knee joint. Those problem eventually led, after two revision procedures in 2010 and 2012, to him undergoing an above-the-knee amputation in 2016. He first consulted solicitors in 2012 but was advised the following year that a claim could not proceed, following receipt of an unsupportive orthopaedic report. He instructed his present solicitors in 2016. Proceedings were not issued until 2019.
In his judgment, Mr Richard Hermer QC sitting as a Deputy High Court Judge ruled that Mr Wilkins had a sufficient degree of “knowledge” that his ongoing knee pain might be attributable to fault on the part of clinicians at around the time that he first instructed solicitors in 2012 (paras 51-57). However, he went on to hold that it was equitable to exercise the power in section 33 of the Limitation Act 1980 to disapply the limitation period (paras 65-88).
There are a number of points made in the judgment in relation to the section 33 issues which may be of wider application. First, the linchpin of the defendant’s case in relation to section 33 was that the claim should be viewed as one lacking in merit, particularly in light of the expert report obtained by the first firm instructed by Mr Wilkins. The Deputy Judge rightly indicates that the circumstances in which such a submission could be accepted are very limited, and that “generally speaking a Court should refrain from taking a view on merits save in the clearest cases” (para 69). It would be unfair and inappropriate to seek to reach conclusions on the merits of a case which could not be said to be so weak that summary judgment was merited and on potentially incomplete evidence (paras 70-71). Since Mr Wilkins’ advisers possessed supportive expert evidence, it was not appropriate to require that to be disclosed for the limitation trial and then hold a mini-trial (para 73). Mr Wilkins was not in any way bound by the content of the earlier, unsupportive report (para 74).
Secondly, in relation to whether the defendant was prejudiced in defending the claim, the defendant had not served any evidence indicating specific prejudice to it in defending the claim and accepted that a fair trial was possible (para 82). Instead, a general submission was made that experts could not be expected to recall the standards of clinical practice many years ago (para 83). The judge observed as follows:
…. 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. In broad terms the resolution of the dispute will turn upon two issues – firstly, was the Claimant suffering from infection at the material times, and secondly, if so, was he appropriately treated/managed? It is accepted by both parties that the resolution of both these issues will 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 specific prejudice identified by the defendant was the inception from April 2013 of qualified one-way costs shifting and its inability to recover its costs if it lost. The judge said that this was not a relevant consideration (para 84). The introduction of a new funding regime had to be taken as it had occurred, and parties had to accept that the “rules of the game” might be changed by Parliament. Secondly, the QOCS reforms were “swings and roundabouts”, in that the defendant would not, if the claim succeeded, have to pay a substantial uplift on the damages or pay a high premium on an ATE policy.
He therefore concluded that such delay as had occurred was outweighed by the prejudice to the claimant in the loss of a potentially valuable underlying claim, and that it was appropriate to disapply the limitation period (para 87).
Paul Stagg of 1 Chancery Lane represented Mr Wilkins, on instructions from Shoosmiths LLP.