Spire Healthcare Ltd v Brooke

For contribution claims under section 10 of the Limitation Act 1980, time runs from the agreement or determination of the final quantified sum payable in compensation. An agreed interim payment does not start the limitation period. The same approach applies to judgments, awards and settlements, preserving parity between sections 10(3) and 10(4).

A settlement and consent order will bar later contribution proceedings only where the contribution issue was necessarily compromised or a clear and unambiguous representation was made that it would not be pursued. Silence, discontinuance of the underlying claim, costs provisions and vacation of a trial do not, without more, establish such an estoppel. Where the contribution issue was already in play, pursuing it later was not an abuse of process.

Spire Healthcare Limited and Nicholas Brooke were co-defendants in a clinical negligence claim brought by Ian Jellett. Before trial, Jellett settled his claim against Spire for 75% of his damages, while discontinuing against Brooke on a drop-hands basis. A consent order recorded the settlement, the discontinuance and costs provisions, but did not expressly address contribution between Spire and Brooke.

Spire later issued proceedings under the Civil Liability (Contribution) Act 1978. Brooke contended that the claim was out of time because Spire had made an interim payment, that the settlement created an estoppel, and that the proceedings were an abuse of process. The court determined those three preliminary issues.

1. Limitation. Spire’s contribution claim was not statute barred. Under section 10(4) of the Limitation Act 1980, the relevant date is the earliest date on which the final amount payable in compensation is agreed. A voluntary interim payment, even if made on account of damages, does not trigger the two-year period. The reasoning in Aer Lingus plc v Gildacroft Ltd [2006] EWCA Civ 4 supported a parity of approach between section 10(3) and section 10(4). A court-ordered interim payment would fall within neither subsection, and it would be anomalous if a voluntary payment had a different effect. The relevant date was therefore 24 June 2013, when final quantum was agreed, and the proceedings were issued in time.
2. Estoppel. The consent order did not create cause of action estoppel in respect of the deemed contribution proceedings. Nor did the order or surrounding circumstances give rise to estoppel by representation or promissory estoppel. The alleged representation had to be specific: that the contribution proceedings were at an end or would not be pursued. It had to be clear and unambiguous, reasonably understood in that sense, and actually understood by Brooke or his representatives. The separate bilateral settlements, discontinuance, payment of Jellett’s costs, absence of a reservation and vacation of the trial did not satisfy those requirements. The later rejection by Brooke’s solicitors of Spire’s Part 36 contribution offer strongly indicated that they did not understand the contribution issue to have been compromised.
3. Abuse of process. The contribution issue had already been raised in the earlier litigation. The case therefore did not fall within the wider Henderson v Henderson abuse principle concerning issues which could and should have been raised but were not. Once the court concluded that the contribution issue had not been compromised, there was no separate basis for abuse of process. Delay, possible evidential difficulties, costs, the tripartite consent order and the vacation of the trial did not alter that conclusion. Issuing fresh proceedings was not itself abusive, particularly because no formal contribution step had been taken and Stott v West Yorkshire Road Car Company [1971] 2 QB 651 established only that fresh proceedings were unnecessary, not impermissible.
4. All three preliminary issues were decided for Spire. The claim was not statute barred, was not estopped, and would not be stayed or struck out as an abuse of process. The proceedings were to continue.