Azam v University Hospital Birmingham NHS Foundation Trust – a defendant must produce evidence of likely prejudice to successfully oppose an application for section 33 discretion to bring a claim out of time

Posted: 17/02/2021

It is not uncommon in clinical negligence cases for clients to seek legal advice a number of years after the potential negligence has occurred. This can be for a combination of reasons. For example, clients may have had no reason to suspect any negligence until some time later and the impact of the negligence and/or injury may only have become apparent much later on. Often it is because they may have initially been reluctant to go down the route of a claim but have now reached the point where they need to take action because of the financial consequences of the negligence and sometimes the delay is because they simply have not been able to face looking at a claim in addition to everything else they have had to deal with.

In cases where solicitors are approached after the end of the initial primary three-year limitation period - the time during which court proceedings must be commenced or the case is statute barred - careful consideration needs to be given as to whether there are good grounds to argue that the case is not caught by the primary three-year limitation period. 

The most common basis for arguing that it does not apply, aside from in the case of children and other protected parties, is on the basis of date of knowledge. That is, the potential claimant did not have any reason to suspect that they had suffered significant injury as a result of negligence until some time after the negligence occurred – in such a scenario the three year period only starts to run from that point in time. 

The most obvious type of claim that falls within this category is the delayed diagnosis case where it is only at the time of diagnosis that the patient has any reason to be concerned that there has been a failing in their prior care that may have adversely affected them. Solicitors therefore have to carefully consider all cases where primary limitation has passed and generally will only advise that a case is taken on if they believe there are good grounds for arguing that the three-year period is not applicable. 

A potential defendant will always consider a limitation defence in cases where the three-year period has expired so the aim from the claimant’s side is to put forward such a convincing case as to why the limitation period is extended in the particular case that the defendant does not consider it has any reasonable prospects of running a limitation defence. However, a defendant will always consider it as, if successful, it will avoid it having to bear any liability for the claimant’s claim, regardless of the strength of the case in negligence.

The other option open to a claimant who is, strictly speaking, ‘out of time’ is to make an application to the court to ask it to exercise its discretion under section 33 of the Limitation Act 1980 and to allow the claim to proceed out of time. In such scenarios, the court has to weigh up, among other things, the reasons for the application and why the case had not been brought previously, and the prejudice that would be caused to the defendant by the case proceeding at a late stage. The key issue in this respect is usually whether the evidence required to properly assess the case itself would be affected or compromised by the claim being brought late.

The recent case of Azam v University Hospital Birmingham NHS Foundation Trust  [2020] EWHC 3384 (QB) involved an appeal from a first instance decision of HHJ Rawlings in the county court at Birmingham and squarely puts the obligation to evidence likely prejudice on the defendant.

The facts of the Azam case were that the claimant had undergone surgery in 1996 under the NHS. It was not until many years later that he instigated a claim on the basis that, in the original surgery, the surgeon used the wrong technique and negligently performed that technique and that his informed consent was not obtained for the operation. In particular, the claimant alleged that he was not informed of possible adverse outcomes such as scarring. By the time the defendant trust was notified of the potential claim, the surgeon concerned had passed away.

When presented with the claim, the trust not surprisingly took the position that the claimant was out of time and that it would be significantly prejudiced by the time lapse in terms of its ability to investigate and gather evidence, one of the main purposes behind having limitation periods for such litigation.  

The claimant and his solicitors clearly thought he had good grounds to argue that primary limitation was not applicable and/or to persuade the court to exercise its discretion under section 33 and allow him to bring the claim out of time. Proceedings were issued with the parties agreeing that the limitation point should be determined as a preliminary issue.

The matter came before HHJ Rawlings. He heard the evidence and found that the claimant had expressed concerns about the outcome from surgery almost immediately after it had been performed and the notes documented discussion of a revision procedure being performed very soon after the first surgery. 

In the view of HHJ Rawlings, the claimant had the necessary knowledge of a significant injury under sections 11 and 14 of the Limitation Act 1980 almost immediately after the surgery because the notes indicated that he was dissatisfied with the outcome. He therefore considered that the claimant was out of time. However, as above, HHJ Rawlings was also asked to consider whether he would grant the claimant discretion to effectively disapply the limitation period under section 33 of the Limitation Act 1980.

His judgment in this regard was that, in relation to the consent issues, he would not exercise his discretion. Consent cases by their nature are factual and depend on the evidence of the claimant and the medical practitioners involved and, because of the death of the relevant surgeon, the defendant trust would be significantly prejudiced by the claim being allowed to proceed out of time as it could not call the surgeon to give evidence to counter anything said by the claimant.

However, in relation to the allegations about incorrect surgical technique, the judge did make the decision to exercise his discretion and to allow that part of the claim to proceed ‘out of time’. He stated that the basis for this decision was that the issue of whether or not the surgical technique used was acceptable at the time was a matter of expert evidence for both sides and there was no evidence that the ability to obtain such evidence was adversely affected by the delay.

Perhaps not surprisingly, the trust took the decision to appeal the judge’s decision to exercise his discretion to allow the surgical technique part of the claim to proceed. Saini J heard the appeal and dismissed it. The judgment is of note because the focus was on the fact that, in cases involving the court’s exercise of its discretion, any attempt to overturn that decision will face an uphill struggle.

In his judgment, Saini J first carried out an analysis of the way that HHJ Rawlings had applied the legal tests applicable to the issues he was asked to determine. His conclusion was that the “the judge’s  directions in relation to the approach to the legal test upon which the discretion rested were impeccable”.  He made clear that, having decided that the judge had taken the correct approach to the legal tests, his ability to review the outcome of the exercise of the court’s discretion was limited to considering whether the decision below was “plainly wrong”.  

In considering the appeal, therefore, Saini J made clear that the bar is set very high for an appellant seeking to challenge the exercise of the court’s section 33 discretion. In essence, unless the court below has either failed in its application of the law or made a decision that was plainly wrong, the appeal courts should not interfere in a decision where the role of the judge below has been to decide whether to exercise the discretion available to it.

In many ways this is not a surprise. In a situation where a court is exercising a discretion, then it would seem correct that the only basis to appeal such decision is if the court is plainly wrong either in application of legal tests or the outcome. However, what Saini J seemed to emphasise is that for a case of this type where the court is being asked to decide whether to exercise its discretion and, in particular, in this context where the query is whether the defendant would suffer prejudice, it is for the parties at the first instance to produce all the evidence necessary to support their position. 

Saini J drew attention to the fact that the trust was seeking to argue that HHJ Rawlings had not given sufficient weight to the prejudice that allowing the claimant’s case to proceed would cause it but without producing much evidence that, in fact, that was the case. Saini J noted that these are matters which mandate evidence if a party wishes to assert prejudice given the evidential burden is on the party asserting prejudice.  

He commented that the trust’s assertions about what assistance the deceased surgeon’s evidence would have provided to any expert it instructed were “a matter of speculation upon which the trust called no evidence and cannot make out the evidential burden”. The court had the claimant’s expert medical report before it asserting that the surgery had been carried out inappropriately and Saini J commented that, even if a full-blown expert report was not justified at that stage on grounds of proportionality, a report “explaining even in outline terms how the evidence of the operating surgeon would be relevant to the claim could have been commissioned”.

Philippa Luscombe, partner in the clinical negligence team at Penningtons Manches Cooper, said: “Many would not have expected a court to exercise section 33 discretion in a case with these facts, given the claimant’s apparent early concerns about the outcome of his surgery and the very significant time lapse before instigating his claim. 

“There is no doubt that claimant lawyers will be considering whether the odds of such applications going in their favour are better than we might previously have thought. The particular point is that it is for the defendant to allege that it will be prejudiced and it will have to provide evidence as to how that will be the case in order to persuade the court that the discretion should not be exercised.

“It needs to do that at first instance as this case makes it clear that it is not for an appellant court to interfere in a decision of this type - even if it would have come to a different conclusion - unless it is based on an incorrect analysis of the law or so plainly wrong that it could not be a reasonable decision.”

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