The Pennine Acute Hospitals NHS Trust v De Meza

Under section 33 of the Limitation Act 1980, the court must assess all the circumstances and the competing prejudice caused by allowing or refusing a late claim. Delay alone is not decisive; its effect on the defendant’s ability to defend the claim is central. The court should consider the merits where they materially bear on the equitable exercise, including whether breach and causation face substantial difficulties. A defendant’s status as an institution or individual is not, by itself, relevant. Age and infirmity may bear on the cogency of evidence, but are not independent reasons to refuse a claim. An appellate court may intervene where the first-instance discretion was unreasoned, based on irrelevant considerations, or exercised outside section 33. On the evidence, the claim was too stale and weak for it to be equitable to proceed.

The claimant brought a personal injury claim in 2015 alleging clinical negligence in the early 1980s. Proceedings had been issued in October 2014 against the appellant, the successor body to the treating hospitals, and a consultant endocrinologist. The defendants argued that the claim was statute barred.

The Liverpool County Court found that the claimant acquired the relevant knowledge under section 14 of the Limitation Act 1980 by June 1983, so the primary limitation period expired in June 1986. The recorder refused to disapply limitation against the consultant under section 33, but allowed the claim against the appellant to proceed. The appellant appealed. The central issue was whether the section 33 discretion had been properly exercised.

1. Appeal allowed. The claim against the appellant was struck out as statute barred. The Court of Appeal held that the recorder had not exercised the discretion under section 33 of the Limitation Act 1980 in accordance with the statutory requirements.
2. The recorder’s conclusion was unreasoned and unexplained. Any inference that he relied on the appellant’s institutional status, in contrast with the consultant’s status as an individual, was erroneous. The identity of a defendant as an institution or individual is not, of itself, a factor affecting the section 33 discretion.
3. Section 33 requires consideration of all the circumstances, including the length and reasons for delay, the effect of delay on the cogency of evidence, the defendant’s post-event conduct, any disability, the claimant’s knowledge of the potential claim, and steps taken to obtain advice. Delay alone does not require refusal; the material question is its effect on the defendant’s ability to defend the claim. Here, 28 years had elapsed after expiry of the primary limitation period. Relevant records had been destroyed or lost, and reliable memories were unavailable. The resulting prejudice was stark.
4. The merits were relevant and should have been considered. The claimant had known that testosterone treatment was effective, had stopped taking it, and had not sought renewed treatment or follow-up. Even if breach were established, causation presented real difficulties. The claim was therefore weak.
5. The recorder’s reliance on the consultant’s age, infirmity, distress and professional reputation as reasons weighing against allowing the claim was misplaced. Those matters could bear on the quality of evidence, but were not independent factors against the claim. The conclusion as to the consultant was ultimately correct, but the appeal concerned only the appellant.
6. The court had all necessary evidence and conducted the section 33 exercise afresh. It was not equitable for the appellant to defend the stale and weak claim. Lord Justice Lindblom and Lord Justice Ryder agreed with Lady Justice Thirlwall.

• Court of Appeal (Civil Division): [2017] EWCA Civ 1711 — appeal allowed; the claim against the first defendant was struck out as statute barred.
• Liverpool County Court: the recorder found that the claimant’s section 14 knowledge arose by June 1983, refused to disapply limitation against the second defendant, but allowed the claim against the first defendant to proceed under section 33.