Hood v Nottingham City Hospital NHS Trust

A court considering dismissal for want of prosecution must assess overall justice and whether a fair trial remains possible. Prejudice is important, but the court may also weigh inexcusable delay, repeated breaches of orders and rules, and the effect of delay on other litigants. A claimant who issues proceedings at the end of the limitation period must thereafter proceed expeditiously. Faded recollections can prejudice a fair trial where factual evidence remains material. An appellate court should not interfere with a properly directed exercise of discretion unless there is an error in principle or the decision is plainly wrong.

Juliet Hood, a cardiologist employed by Nottingham City Hospital NHS Trust, claimed damages after a patient injured her back during an ECG examination. She alleged negligence in the Trust’s management of the patient and in failing to warn staff of the potential danger.

The claim was issued and served shortly before the limitation period expired. It then suffered prolonged delay and repeated failures to comply with directions concerning witness and expert evidence. The Trust applied under Part 3 of the Civil Procedure Rules for dismissal for want of prosecution.

On 4 July 2000, His Honour Judge Brunning struck out the claim. Hood sought permission to appeal, arguing that the judge had failed to consider relevant matters, prejudice, and the proportionality of striking out. The central issue was whether the judge’s discretionary decision was plainly wrong.

1. Disposition. Lord Justice Peter Gibson refused permission to appeal. Lord Justice Latham agreed. There was no real prospect of success and no other compelling reason for the appeal to proceed.
2. The first-instance judge had directed himself by reference to the overriding requirement to do justice between the parties and the question whether a fair trial could take place. Prejudice was relevant, but it was not the only consideration. The judge was also entitled to consider extensive delay, repeated breaches of court orders and rules, and the interests of other litigants requiring expeditious resolution.
3. A claimant who issues proceedings at the very end of the limitation period must thereafter proceed expeditiously. Hood’s seven-month delay in taking out the summons for directions, contrary to RSC Order 25 rule 1(1), was properly taken into account.
4. The judge was entitled to regard the Trust’s factual evidence as important despite the existence of medical records. Evidence about the patient’s management and the precautions that should have been taken necessarily depended in part on oral recollection. The passage of time had dimmed witnesses’ memories and created difficulties for a fair trial.
5. The judge had considered the material matters, including delays by both parties, and was aware of the range of possible sanctions. The Court of Appeal could not identify any material omission, error of principle, or plainly wrong exercise of discretion. The order striking out the claim therefore remained undisturbed.

• Court of Appeal (Civil Division): Permission to appeal from the order of His Honour Judge Brunning dated 4 July 2000 was refused: [2001] EWCA Civ 447.
• Nottingham County Court: The claimant’s negligence claim was struck out for want of prosecution.