Henderson v Dorset Healthcare University Foundation NHS Trust

Permission to amend a statement of case to introduce human-rights claims may be refused where the proposed claims are inadequately pleaded, substantially out of time and made shortly before trial. A human-rights pleading must identify the precise Convention rights relied on, the alleged infringements and the relief sought. A late amendment adding a new claim is subject to CPR 17.4 where the relevant limitation provision allows such an amendment. The new claim must arise from the same or substantially the same facts already in issue. The overriding objective requires the court to consider delay, prejudice, wasted costs, efficient use of court resources and the effect on any imminent trial.

The claimant brought a personal-injury claim after killing her mother and pleaded negligence against the defendant NHS Trust. Liability in negligence was admitted and judgment was entered by consent. The claim included damages associated with her detention under the Mental Health Act, but no claim under the Human Rights Act 1998 was pleaded.

Shortly before a three-day trial of preliminary illegality issues, the claimant applied to amend her Particulars of Claim to add claims under Articles 3 and 8 of the Convention, together with an application for an extension of time under section 7(5)(b) of the Human Rights Act 1998. The defendant sought an adjournment if permission were granted. The central questions concerned the adequacy and prospects of the proposed claims, the application of CPR 17.4, whether the new claims arose from the same facts, and the exercise of case-management discretion.

1. Application dismissed. The proposed amendments did not adequately plead viable claims. Under paragraph 15.1 of the Part 16 Practice Direction, a human-rights claim must identify the Convention right infringed, provide details of the alleged infringement and specify the relief sought. The draft merely alleged that the defendant’s omissions violated Articles 3 and 8. It did not explain how the facts amounted to inhuman or degrading treatment or identify the relevant aspect of Article 8. Oral submissions could not substitute for a properly pleaded case.
2. The court could not exclude the possibility that properly formulated claims might be arguable. Nevertheless, the claimant had ample opportunity to formulate them. The application was made about five years after the relevant limitation period had expired and contrary to the requirement of promptness in paragraph 15.2 of the Practice Direction. The draft also pleaded no facts supporting the requested extension of time under section 7(5)(b) of the Human Rights Act 1998.
3. The court favoured the view that CPR 17.4 applied. The proposed claims were new claims introduced after expiry of the applicable limitation period. Permission could therefore be granted only if they arose from the same or substantially the same facts already in issue. Applying the approach in Goode v Martin, [2002] 1 WLR 1840, and the value-judgment analysis described in Lloyd's Bank plc v Rogers, [1997] TLR 154, the test was not met. The human-rights claims would require investigation of materially different issues, including the severity, duration and effects of the alleged treatment.
4. Permission would also have required the imminent preliminary-issues trial to be adjourned or vacated. Trying the negligence illegality issues separately would risk duplicated proceedings and appeals, and would be inconsistent with the overriding objective.
5. Even if the pleading and limitation requirements had been satisfied, permission would have been refused in the court’s discretion. The delay was unreasonable, the defendant would suffer evidential and procedural prejudice, preparation costs would be wasted, and the claimant had not shown why introducing the claims at that stage was fair or proportionate.
6. The court noted that, subject to any contrary decision by the Supreme Court, illegality was common ground not to bar a claim under the Human Rights Act 1998, reflecting Al Hassan Daniel v Revenue & Customs, [2010] EWCA Civ 1443. That observation did not justify the late amendment.