The Pennine Acute Hospitals NHS Trust v De Meza [2017] EWCA Civ 1711 (10 November 2017)


This appeal arises in the context of a personal injury claim by C brought in 2015 in respect of alleged clinical negligence in the early 1980s. D1 is the successor body to the treating hospitals. D2 was a consultant endocrinologist who was employed at one of the hospitals but also saw the claimant privately. Proceedings were issued in October 2014. Both defendants raised defences of limitation. The applications to strike out the claims as statute barred… C had knowledge of his claim, within the meaning of section 14 of the Limitation Act 1980 (LA 1980) in June 1983. The limitation period expired therefore in June 1986. Prima facie the claims were statute barred… C’s application under section 33 LA 1980 to disapply the limitation period… application rejected in respect of D2… application granted in respect of the D1. Accordingly the claim was to proceed against the D1 only. D1 appeals. (paragraph 1)

…The fact that a defendant is an institution or, as the case may be, an individual is not, of itself, a matter which can affect the exercise of discretion under section 33… (paragraph 24)

Section 33 LA 1980 gives the judge a wide discretion when considering an application to disapply the limitation period and it is not for this court lightly to interfere with the exercise of that discretion. However as is plain from paragraphs above, the recorder’s conclusion in respect of the D1 is unreasoned and unexplained. To the extent that the reasoning may be inferred it is erroneous. In my judgment, the conclusion cannot be upheld. The recorder did not exercise his discretion in accordance with Section 33. (paragraph 25)

…Delay of itself is not a reason to refuse to extend time; it is the effect of delay on the ability of the defendant to defend the claim that matters. The prejudice to the defendants resulting from the very long delay, which was not of their making, was stark. It is inescapable that had proceedings been brought by 1986 the defendants would still have retained their records… (paragraph 26)

C’s case was that there had been no follow up as a result of which he had suffered injury. Those issues could not fairly be tried given the combination of the absence of any relevant documents and the inability of those involved reliably to remember anything. (paragraph 27)

the claim against D1… statute barred. (paragraph 30)