Ellis v Heart of England NHS Foundation Trust & Ors [2018] EWHC 3505 (Ch) (20 December 2018)

D3… raises a defence in respect of limitation and this is the hearing of a preliminary issue to determine whether the C’s claim against D3 is statute barred… [2]

C’s Solicitors received a GP expert’s report based on C’s medical records. It was not supportive of the claim against D3. A decision was taken not to pursue the claim against D3… C’s Solicitor advised D3’s Solicitor that D3 was “released from this matter and we are satisfied for you to close your file”. [17]

C’s Solicitors received a report from a second GP expert… That report is supportive of a claim against D3. [22]

D3 served a defence denying breach of duty and causation and raising limitation as a defence. [23]

The delay in issuing proceedings beyond the extended limitation period is… understandable given that GP expert instructed on C’s behalf had produced a report which was not supportive of the claim against D3… no criticism can be directed towards C in that regard. [38]

D3 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. D3 has the benefit of his contemporaneous record of his consultation and his own recollection of the consultation given the contents of his defence. Moreover D3 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. [39]

the prejudice to C, should he not be able to pursue his claim against D3 would be profound. He would lose the opportunity to pursue a potentially significant claim against D3 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. [40]

For all these reasons it is just and equitable to allow the claim against D3 to proceed. [42]