Das v Ganju

Section 33 of the Limitation Act 1980 confers an equitable discretion to disapply the primary limitation period after balancing prejudice to both parties. For section 33(3)(a), relevant delay begins after expiry of the limitation period. Misleading legal advice may explain that delay and is not automatically treated as the claimant’s fault. Evidential deterioration occurring before expiry may carry limited weight. A speculative or difficult alternative claim against lawyers may be an inadequate substitute for the underlying claim. An appellate court should interfere with a first-instance section 33 discretion only in limited circumstances.

Mrs Das claimed damages from Dr Ganju for alleged negligent failure to diagnose or act upon rubella during pregnancy. Her daughter was born with congenital rubella syndrome. The writ was issued in September 1996, about 18 years after the alleged negligence.

Mr Justice Garland held that the claim was time-barred under section 11 of the Limitation Act 1980, but exercised the discretion under section 33 to allow it to proceed. Dr Ganju appealed, principally challenging the treatment of delay, legal advice, evidential prejudice and the availability of claims against the claimant’s former lawyers.

The appeal was dismissed unanimously. Sir Christopher Staughton gave the first judgment. Buxton LJ agreed with his reasoning, and Nourse LJ agreed without adding reasons.

1. Statutory framework. The claim was accepted to fall within section 11 of the Limitation Act 1980. The parties agreed that the date of knowledge fell between June 1987 and October 1988. The limitation period therefore expired between 1990 and 1991, subject to section 33. Section 33 required an equitable balance between prejudice to the claimant if section 11 applied and prejudice to the defendant if it did not.
2. Delay and legal advice. Under section 33(3)(a), the relevant delay was the five or six years after expiry of the limitation period. The principal reason was misleading and discouraging legal advice. The claimant was not personally at fault, and the failings of lawyers were not automatically to be visited upon her. The broad reading of Whitfield v North Durham Health Authority [1995] 6 Med LR 32 could not be reconciled with Thompson v Brown [1981] 1 WLR 744 and Halford v Brookes [1991] 1 WLR 428.
3. Prejudice. Any substantial loss of recollection had largely occurred before the limitation period expired. The expert evidence could address the standard of medical practice in 1978. Evidential prejudice therefore carried limited weight. A speculative claim against solicitors or counsel was not an adequate substitute for a direct action against Dr Ganju. The claimant did not have to prove that the underlying claim would succeed merely to obtain a section 33 direction, although that proof would be necessary to recover the full damages otherwise available.
4. Unresolved conduct issue and appellate restraint. The court did not resolve the scope of section 33(3)(c), including whether it extended beyond conduct in investigations. Any error in considering Dr Ganju’s failure to pass on hospital letters was immaterial. The judge had heard the witnesses and expert evidence and was entitled to exercise the discretion in the claimant’s favour. The appeal was dismissed with costs, subject to legal aid taxation; leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) [1999] EWCA Civ 1152: appeal dismissed with costs.
• High Court of Justice, Queen’s Bench Division: Mr Justice Garland held that the claim was barred by section 11 of the Limitation Act 1980, but exercised the section 33 discretion in Mrs Das’s favour.