Georgiev v Kings College Hospital NHS Foundation Trust Appeal

On an appeal from a case-management decision refusing a late amendment, the appellate court must respect the generous ambit of the first-instance discretion. It may intervene where relevant considerations were omitted or given no proper weight.

Applications to amend require the court to balance injustice to the applicant against injustice to the opponent and other court users. Where Limitation Act 1980, section 28 gives a claimant under disability an unlimited limitation period, that factor may strongly favour permitting an arguable and properly pleaded amendment, absent abuse. The risk of losing a trial date does not automatically decide the application. Consolidating related claims may reduce duplicated evidence, satellite litigation and overall prejudice.

The claimant, a child with severe disabilities following complications during a planned home birth, sued the defendant NHS foundation trust for alleged breaches of duty during labour and delivery.

Master Cook refused permission to amend the particulars of claim to add an informed-consent claim. The claimant appealed, arguing that the Master had failed adequately to consider the claimant’s disability, the effect of section 28 of the Limitation Act 1980, overlapping causation evidence and the consequences of separate proceedings.

The central issue was whether the Master had exercised his discretion on the correct basis and, if not, how the amendment application should be determined afresh.

1. Appeal allowed. The court set aside Master Cook’s refusal and exercised the discretion afresh.
2. An appellate court should not interfere with a case-management decision where the judge applied the correct principles and considered relevant matters, unless the decision is plainly outside the generous ambit of discretion. The Master had correctly recognised the modern importance of the overriding objective, trial timetables and prejudice to the administration of justice, but failed to give proper consideration to material matters advanced on appeal.
3. Applications to amend require a balance between injustice to the applicant if permission is refused and injustice to the opponent and other litigants if it is granted. The guidance in Qua Su Ling v Goldman Sachs International [2015] EWHC 759 (Comm) does not create an inflexible rule that a late amendment must be refused whenever a fixed trial date is endangered. Lateness, the strength of the proposed case, the explanation for delay, wasted work, further work and the effect on court users remain fact-sensitive considerations.
4. Section 28 of the Limitation Act 1980 gives a claimant under disability an unlimited period in which to bring a properly pleaded claim. The authorities establish that, absent exceptional circumstances amounting to abuse, delay or prejudice does not prevent such a claim from being brought. The section is not a licence for delay, since the court can impose and enforce a proper timetable.
5. Here, the proposed informed-consent claim was sufficiently arguable and properly pleaded, and there was no suggestion of abuse. The possible duplication of causation evidence and the risk of separate proceedings, satellite litigation and prolonged delay strongly favoured hearing all claims together. That consideration could justify losing the existing trial date. The amendment was therefore allowed, with a new timetable to be set; the April trial date would be vacated if necessary.

• High Court (Queen’s Bench Division): appeal from Master Cook’s refusal of permission to amend the particulars of claim. The refusal was set aside and permission to amend was granted.