Limitation arguments – how hard can it be?

The cases of Ellis v Iyer and others [2018] EWHC 3505 (Ch) and Mossa v Wise [2017] EWHC 2608 (QB) show the hurdles Defendants face in seeking to successfully pursue a Limitation Defence.

This note covers Ellis, with Mossa covered in part 2 of the three-part series. The final note will set out an overview and summary and can be found here.

Ellis v Iyer and others [2018] EWHC 3505 (Ch)

The Court allowed the claim to continue, placing emphasis on the lack of prejudice to the 3^rd Defendant in the Claim Form being issued out of time.

The facts of the alleged negligence

1. The Claimant developed a cerebral abscess and was seen by Dr Iyer, GP and 3^rd Defendant, on 25 February 2013. Dr Iyer recorded a history of acute numbness and weakness of the left leg and on examination there was impaired sensation below the knee and the Claimant was unsteady on both feet.
2. The Claimant re-attended on 27 February 2013 to have bloods taken, which were abnormal and were reported within minutes. However, the Claimant was sent home. Later that day, he suffered a witnessed seizure. He attended Solihull Hospital, (1^st Defendant), and a CT scan was taken which showed a lesion compatible with an abscess or a tumour.
3. The Claimant was discussed with the neurological team at the Queen Elizabeth Hospital Birmingham, (2nd Defendant), and who requested further imaging and blood tests.
4. The Claimant was transferred to the Queen Elizabeth Hospital on 1 March 2013 where he underwent drainage of an intracranial abscess via a right frontal-parietal craniotomy later that day. Post-operatively, he suffered further seizures. His recovery was slow and was discharged in May 2013.
5. The Claimant was left with relative weakness on the left side, with a severe weakness of the left foot and a left foot drop. He suffered disruption of his cognitive and behavioural functioning and had epilepsy. The problems were permanent and given the severity and impact of the injuries the claim was expected to have a substantial financial value.

The procedural position

6. The Claimant instructed his Solicitors on 1 October 2013. Records were obtained and a Consultant Neurosurgeon (not a GP) reported on liability. Letters of claim were sent to all three Defendants on 6 May 2015.
7. The Claimant and 3^rd Defendant agreed four extensions of time for service of a Letter of Response and consequently to the Limitation period. The 3^rd Defendant served a denial Letter of Response on 15 March 2016, with the fourth Limitation extension due to expire on 27 June 2016.
8. Partial admissions on breach of duty were made by the 1^st and 2^nd
9. On 15 March 2016 the Claimant’s Solicitors received a GP expert’s report. It was not supportive of the claim against the 3^rd Defendant and a decision was taken not to pursue the claim against the 3^rd On 21 September 2016 Claimant’s solicitors stated the 3^rd Defendant was “released from this matter and we are satisfied for you to close your file”.
10. Further extensions of time so far as Limitation was concerned were agreed between the Claimant and the 1^st and 2^nd Defendants until 27 January 2017 to enable the Claimant to obtain evidence from experts in the fields of microbiology, neurology and neuropsychology.
11. In August 2016 the Claimant’s solicitors instructed alternative Counsel to settle Particulars of Claim. That Counsel had a medical qualification and was not satisfied with the conclusions reached by the Claimant’s instructed GP expert. A conference was held, and a supplementary report produced dated 10 December 2016. The Claimant’s other expert witnesses were consulted and a decision taken to obtain a second opinion from another GP expert.
12. On 20 January 2017 the Claimant’s Solicitors contacted the 3^rd Defendant’s Solicitors to alert them to the fact that the 3^rd Defendant would after all be made a party to the proceedings and to invite the 3^rd Defendant not to take any Limitation point.
13. On 25 January 2017 a Claim Form was issued against all three Defendants.
14. On 10^th February 2017 the Claimant’s Solicitors received a report from a second GP expert which supported the claim against the 3^rd
15. Extensions of time for service of all Defences were agreed and on 5 October 2017 the 3^rd Defendant served a Defence denying breach of duty and causation and raising Limitation as a defence.

The Appeal

16. Limitation issues for the Claimant:

• Issuing proceedings outside of the extended Limitation period by approximately 7 months;
• Whilst holding an unsupportive GP report;
• Under a cloud of expert shopping; and
• Despite informing the 3^rd Defendant they could close their file.

17. His Honour Judge McKenna, sitting as a High Court Judge, considered the issue of Limitation at a hearing on 27 November 2018. He found in favour of the Claimant, stating at paragraph 32 of his Judgment that:

“…I have no hesitation in concluding that having regard to all the circumstances of the case and the principles enunciated in [previous case law], it is equitable to allow the claim against the 3^rd Defendant to proceed. I do so for a number of reasons.”

Key reasoning

• s33 relief assessment afforded “unfettered discretion” and could be considered broadly.
• 3^rd Defendant was notified and aware of the matter before expiry of limitation.
• 3^rd Defendant had previously agreed to extend limitation
• Lack of prejudice to the 3^rd Defendant in allowing the claim, as against clear prejudice to the Claimant if claim was not allowed to continue.
• “expert shopping” not criticised in the context of the limitation hearing

18. The matter was not assessed as per a relief from sanctions application that might be required due to failure to comply with directions; HHJ McKenna stated that there was “no justification for importing into the interpretation of Section 33 of the [Limitation] Act the case law relating to relief from sanctions.” This is perhaps not unexpected.  The two “codes” have always remained quite distinct.
19. The Limitation Act affords the Court unfettered discretion under Section 33 and requires the Court “to look at the matter broadly so what is required is a balance of prejudice, all be it that the burden is on the Claimant to show that his prejudice would outweigh that of the 3^rd”
20. HHJ McKenna noted when the Claimant’s sister and mother attended to discuss the delay in the referral and diagnosis that the 3^rd Defendant “knew or ought to have known that the chain of events were likely to be the subject of further enquiry and/or a possible claim for damages.” That is despite there being no Letter of Claim at that time.
21. A formal claim was notified in May 2015 and “the 3^rd Defendant had a relatively early formal notification of the claim which he immediately notified to [his defence organisation].”
22. The 3^rd Defendant was able to formulate and despatch a Letter of Response (following an extension of time granted at his own request in March 2016.) It followed that “the 3^rd Defendant had a full opportunity to consider, investigate and respond to the allegations made against him well within the primary limitation period.”
23. It was also “not without significance that Limitation was extended by agreement with the 3^rd Defendant at least until June 2016…” and it was argued that his advisers were content that the extension did not prejudice the 3^rd Defendant’s ability to defend the claim…”
24. The delay in issuing proceedings beyond the extended Limitation period seemed to HHJ McKenna “understandable given that GP expert instructed on the Claimant’s behalf had produced a report which was not supportive of the claim against the 3^rd Defendant” and “no criticism can be directed towards the Claimant in that regard.”
25. Lack of prejudice for the 3^rd Defendant was a key factor, with HHJ McKenna stating that “Very significantly, the 3^rd Defendant has not been able to identify any prejudice that he has suffered or will suffer in the investigation, preparation or presentation of his defence. No documentation has been lost nor has contact with any potential witness been lost. The 3^rd Defendant has the benefit of his contemporaneous record of his consultation and his own recollection of the consultation given the contents of his defence. Moreover the 3^rd Defendant was notified about the family’s concern within a very short period after the consultation and had the opportunity to discuss the issues with his advisers and to record his recollections well within the primary limitation period. His position is not in any way adversely affected as a result of the delay.”
26. Clear prejudice for the Claimant if the claim was not allowed to proceed; “By contrast, the prejudice to the Claimant, should he not be able to pursue his claim against the 3^rd Defendant would be profound. He would lose the opportunity to pursue a potentially significant claim against the 3^rd Defendant and be left with a possible, but by no means, certain claim for the loss of a chance against his Solicitors and/or Counsel. On any view, the successful pursuit of a negligence claim against Solicitors and/or Counsel in the face of an unsupportive expert report from a reputable expert would be fraught with difficulty.”

For the reasons detailed above, HHJ McKenna found in favour of the Claimant.

Next time

The next note will discuss the case Mossa in which a Claim Form was issued outside of time, with no previous extension agreed, and where the Defendant died of terminal illness before ever receiving notification of the claim.  Feel free to guess the outcome before reading the note.

The third note in this series will consider the available case law and it is interesting to note at this stage the emphasis HHJ McKenna placed on the lack of prejudice to the 3^rd Defendant in the Claim Form being issued out of time.