In the first of a regular series of case updates, 18 St John Street’s Ian Huffer warns of the pitfalls that may await unwary clinical negligence practitioners when undertaking an analysis of the facts relevant to section 11 and 14 ‘knowledge’.
Claimant’s solicitor takes eye off ball but section 33 to the rescue
There have been relatively few recent reported cases on limitation in clinical negligence claims. Wilkins v University Hospital North Midlands NHS Trust  EWHC 2164 (QB) (30 July 2021) establishes no new principle but it highlights the pitfalls that await the unwary practitioner when undertaking an analysis of the facts relevant to section 11 and 14 ‘knowledge’ as well as serving as a case law refresher on the court’s approach to section 33 of the Limitation Act in a clinical negligence context.
Facts: Having undergone a successful right knee operation in 2008, a similar operation on the left knee in 2009 gave rise to continuing problems (laxity, infection). Treating physicians initially followed a wait and see approach before revision surgery (2010). Pain and swelling persisted and following a second opinion from a consultant from a different hospital and radiological investigation, the Claimant underwent an arthroscopic operation including a medial meniscectomy (2011) and a revised knee replacement (2012).
The Claimant contacted his first firm of solicitors in June 2012 and a negative opinion on breach of duty was obtained (March 2013). The Claimant’s knee continued to deteriorate, and he underwent a leg amputation because of ongoing severe pain (June 2016). The Claimant instructed new solicitors and the lawyer with the conduct of the case formed the view that limitation ran from the date of amputation. A further orthopaedic report (obtained in May 2019) indicated that there had been substandard care in 2009/2010 and amputation was avoidable. Proceedings were issued in June 2019. Limitation was raised in the Defence. The Claimant pleaded date of knowledge in 2019 when the Claimant first received positive expert opinion, alternatively section 33.
Richard Hermer QC, sitting as a Judge of the High Court):
Decision on knowledge
As is clear from the case law, including the Supreme Court’s decision in AB v Ministry of Defence  AC 78, for a claimant to have the requisite knowledge for the purposes of ss.11 and 14, it was 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. Rather, it is sufficient that they understand ‘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 was not necessary that the claimant appreciated the precise mechanism by which s/he has sustained an injury but rather it suffices that there was an understanding in broad terms that the medical care may be a possible cause of injury (Hendy v Milton Keynes AHA  3 Med LR 114).
The judge’s decision was that by June 2012 at the latest (and might have been sooner, predating instruction of the first solicitors) the Claimant was ascribing ongoing pain in his knee to his treatment being sufficiently troubled to consult solicitors who had advised him that he had a claim sufficient for the solicitors to act under a Conditional Fee Agreement. By this date the Claimant knew ‘in broad terms’ the ‘essence’ of the case against the Defendant. Whilst his appreciation of the potential claim in 2012 may have been different to the basis of his pleaded case in 2019, surgical technique rather than infection control, he knew that his ongoing difficulties were capable of being ascribed to substandard care. He had an understanding in broad terms and the test applied to the case did not require appreciation of the precise mechanism of injury.
The judge made it clear that the mere fact that the Claimant had obtained legal advice in 2012 and/or a medico-legal report in 2013 of itself did not automatically establish the requisite level of knowledge. He referred to the judgments of the majority of the Supreme Court in AB v Ministry of Defence that whilst the date on which a Claimant first instructs a solicitor might well indicate sufficient knowledge, it was not determinative in every case, but here, by the time he instructed the first solicitors, he was disgruntled with his treatment in the light of the ongoing pain and the solicitors confirmed that they would take on the case, being told that the claim had reasonable prospects of success. The submission that the date of knowledge was not established until 2019 with receipt of a positive report from a new expert was unrealistic and divorced from the test clearly propounded in the authorities.
Decision on section 33
Practitioners will be familiar with the statutory framework of section 33 of the Limitation Act and the approach of the courts most helpfully and authoritatively brought together in the 13-point guidance given by the Master of the Rolls (Sir Terrence Etherton MR) in Carroll v Chief Constable of Manchester  EWCA Civ 1992 and both are set out in the judge’s judgment (and can be accessed by following the case link).
In reaching its decision, the court identified a number of key factors in the case relevant to the exercise of its discretion in addition to the uncontested fact that the Defendant was entirely blameless in the cause of the delay and the wider considerations of justice referred to in Carroll.
Merits: The judge declined to conduct a narrow focus upon the merits of the claim urged by the Defendants, holding that, save in the very clearest of cases (where the prospects of success are clearly thin), a Court should exercise real caution before conducting a merits assessment as part of the s.33 balancing exercise. Such a cautious approach was consistent with Carroll as well as being justified because of real difficulties of identifying ‘weak’ cases which don’t meet the test for strike out/summary judgment, risking applying an impressionistic view of merits at an early stage on partial evidence and arbitrary and/or inconsistent decisions across all cases. In this case the Defendants pointed to a broad weakness in the claim including the 2013 negative opinion on breach but did not submit that the test for striking out or summary judgment were satisfied, and the judge was unable to conclude that the claim was so clearly weak, or so patently strong, that the merits/demerits should have a material impact upon the exercise of his discretion.
Delay: In relation to delay in bringing the claim, whereas the judge did not feel significant criticism was justified in relation to progressing the claim after the initial negative advice from the first solicitors as he had a reasoned opinion which he had no rational reason to reject and was very much preoccupied with the increasing pain and disability that led to amputation, there was a period of three years between the second solicitors instruction and the issuing of the claim. There was a ‘lackadaisical attitude’ by the solicitor in wrongly following his predecessor at the firms approach that limitation ran from the date of amputation when there was a clear risk that limitation had expired prior to their actual instruction resulting in a lack of urgency in the instruction of experts in microbiology and orthopaedics.
Whilst the judge considered that delay during the second period was unjustified and took it into account in the exercise of his discretion, its significance was diminished by the fact that the delay was not caused by the Claimant but by his solicitors. Reflecting ‘principle 10’ of Carroll and earlier authorities (Corbin v Penfold Metallising  and DAS v Ganju ), the sins of the solicitor need not necessarily be visited upon their clients in the exercise of discretion under section 33.
Prejudice: The Defendant accepted that the passage of time generally had not caused it any specific prejudice and that a fair trial of the issues remained possible. 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 relevant to the resolution of the actual issues in dispute, had faded. The judge did not regard the Defendants argument of general prejudice through the passage of time in terms of recall of acceptable clinical care many years previous as translating into actual prejudice where the issues were unlikely to be resolved by recollection of patient or clinicians but by expert consideration of the contemporaneous medical notes.
The judge also rejected a discrete ground of prejudice argued by the Defendant, based on the argument that if the claim had been brought before 2013, as it should have been, the Claimant would not have been able to rely on the QOCS both on the general ground that the introduction of new funding regime should not a matter to be taken into account in considering whether a claim should be permitting or not and also because it was far from clear that the ‘new’ regime prejudiced the Defendant as under the old regime, if the defence failed, the Defendants would be liable to pay the successful parties uplift and ATE insurance policy.
Overall discretion: The judge referred to the guidance in Carroll and quoted the judgment of Smith LJ in Cain v Francis  QB 754 to the effect that the length of delay was important not for itself but for its effect and the basic question was whether it was fair to expect the Defendant to meet the claim on its merit. The trend in recent cases was to ‘focus more on a pragmatic assessment of whether a fair trial remains possible rather than on a punitive approach to delay per se. In my judgment notwithstanding the delays in this case it would be equitable, in other words, fair and just, to allow the action to proceed. It is not just the fact that a fair trial remains possible that bears heavily on the exercise of discretion”
“I accept that this cannot always be a trump card that determines any application of a s.33 application irrespective of any countervailing factors – that would be irreconcilable with the nature of a balancing exercise. It is however the fact that a fair trial remains possible, indeed pretty much unimpacted by the passage of time, 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. These are the primary factors that have satisfied me that it would be equitable to exercise my discretion to permit the claim to proceed”.
From a Claimant’s practitioner’s perspective, the case includes an interesting consideration on how the court should approach the possible weight to be given to the merit or demerit of the claim and provides a further example of the court’s hesitancy to visit the sins of the solicitor upon their clients in the exercise of discretion under section 33. It also confirms what has now been the consistent approach of the court since Cain v Francis of the importance and weight attached by the court to whether a fair trial can take place particularly in circumstances in which the Claimant cannot be properly criticised for the delay.
The decision on knowledge was clear and the Claimant was left without a sustainable argument. From the perspective of the practitioner, the failure was to rely on the erroneous view of a previous file handler rather than reviewing and revisiting the facts relevant to the question of knowledge. Whilst many clinical negligence injury claims turn on expert consideration and interpretation of entries in the medical notes, many others require resolution of factual issues from the recollection of patients and clinicians. In these cases, courts are likely to take a less benign view of a Claimant’s delay being the fault of his solicitor and section 33 less likely to provide an escape route to allowing the claim to proceed.
For further information on Ian Huffer and other members of the Civil and Personal Injury Department at 18 St John Street, please contact a member of the civil clerking team on 0161 278 8261 or email@example.com.