Azam v University Hospital Birmingham NHS Foundation Trust  EWHC 3384 (QB)
In this interesting appeal decision, the court was weighing up the extent to which a discretionary decision under section 33 of the Limitation Act 1980 (LA 1980) to allow a clinical negligence claim to proceed 18 years out of time was open to challenge on appeal. Was the fact that the allegedly negligent surgeon had died since the expiry of the primary limitation period, ‘the epitome of prejudice’ meaning the case should not have been allowed to proceed, as the appellant asserted? No, held Mr Justice Saini, as the appellant trust’s (the trust) failure to make good the assertion of prejudice by any expert or other evidence at the limitation trial meant that the trial judge had been entitled to find that there was no significant real prejudice in defending the claim by the passage of time. The appeal was dismissed.
This article is written by Charles Bagot KC at Hardwicke, who represented the successful respondent/claimant.
What are the practical implications of this case?
Saini J’s judgment contains a concise and helpful analysis of the proper approach to challenging an exercise of discretion on appeal, both as to the law and practically how an appellant should (and should not) go about it. This is a useful practitioner guide when advising on or mounting an appeal.
The hurdle for an appellant is a high one. An appellate court is unlikely to be assisted by a simple re-argument of the points made to the judge below. An appellant’s analysis of a route by which, eg analysing the LA 1980, s 33 factors, a judge at first instance might have reached a different decision is not an appropriate exercise on appeal. The court is exercising a CPR 52.21(1) ‘review’ power not conducting a re-hearing. The weight to be given to specific factors was a matter for the trial judge and absent some wholly unjustifiable attribution of weight, an appellate court must defer to the trial judge.
The judgment is also a timely reminder of the need carefully to consider the evidence needed for a trial, even of a preliminary issue such as limitation. It will not be sufficient to make assertions or rely on submissions alone on matters where there is an evidential burden. Concepts such as prejudice are not self-proving because, for instance, a key witness (here the allegedly negligent surgeon) has died or is otherwise not available to give evidence.
What was the background?
The claimant underwent gynaecomastia surgery, in March 1996, performed at the defendant trust’s hospital by a consultant surgeon, Mr Duncan Campbell. Mr Campbell died in April 2014. The claim was not issued until July 2017.
At a limitation trial in September 2019, His Honour Judge Rawlings held that:
- the claimant’s date of knowledge was almost immediately after the surgery in 1996 and not, as the claimant had asserted, in 2014, when he attended another surgeon to discuss possible remedial surgery, nor in 2016 when he received a plastic surgeon’s expert report contending that the original surgeon had used the wrong technique and had carried out the surgery very badly resulting in a poor outcome and scarring
- there was no concealment for the purposes of LA 1980, s 32, despite the claimant having been told at the time that he had had a reasonable outcome
- the claimant should not be permitted to bring a claim that there had been no properly informed consent for the surgery, out of time. By reason of his death, the surgeon could no longer be called to give evidence in a dispute over whether the consent form accurately recorded a discussion about the downsides and other options, but
- there was no significant real prejudice to the trust in defending the claim that the surgery was carried out negligently, by the passage of time, principally as this turned on expert evidence which could still be obtained
The trust appealed against (the fourth finding above) with permission to appeal granted at an oral hearing by Mr Justice Martin Spencer in June 2020, and the full appeal being heard before Saini J on 7 December 2020.
What did the court decide?
The question was whether the decision exceeded the generous ambit within which reasonable disagreement was possible. If the appeal court would have preferred a different answer, unless the judge’s decision was plainly wrong, it would be left undisturbed.
The court drew on G v G  1 WLR 647 (HL), Tanfern Ltd v Cameron-MacDonald  1 WLR 1311 (CA), Carroll v Chief Constable of Greater Manchester Police  EWCA Civ 1992 (CA), and Kimathi and others v Foreign and Commonwealth Office  EWCA Civ 2213 (the latter two cases dealing with LA 1980, s 33).
Analysis of the trial judge’s approach on appeal
There was no misdirection in law on the key question of considering in ‘all the circumstances of the case’ if it was ‘fair and just’ (the meaning of ‘equitable’) to allow the action to proceed, in accordance with Cain v Francis  EWCA Civ 1451 and Carroll v Chief Constable of Greater Manchester Police  EWCA Civ 1992 (CA).
A finding that having regard to the delay ‘the evidence likely to be adduced was likely to be less cogent’ could not be made in reliance upon bare assertion in submissions. It required at the very least some evidential or sound inferential basis.
The trust had adduced no evidence about any untraceable witnesses or issue with their recall, if traced. These were matters which mandated evidence as the evidential burden was on the party asserting prejudice – LB Haringey v FZO  EWCA Civ 180 and Carroll.
The judge was entitled to conclude that even if the claim had been brought before the surgeon’s death, it would have been difficult for him to add significant information which did not appear in the medical records, which were still available. The issue of negligence regarding the surgery would turn on expert evidence and the claimant’s chest could still be examined by the defendant’s expert. The trust had adduced no expert evidence to explain how the evidence of the operating surgeon would be relevant. The death of the impugned operating surgeon in a case of alleged negligent surgery does not fall to be treated as necessarily prejudicial to the defence of the claim or determinative of LA 1980, s 33 discretion – Mossa’s Estate v Barbara Wise  EWHC 268.
Court: Queen’s Bench Division, Birmingham Appeals Centre, High Court of Justice
Judge: Saini J
Date of judgment: 10 December 2020
This article first appeared as part of LexisPSL’s Case Analyses for Clinical Negligence & Personal Injury. For more details, please contact email@example.com.