Mossa v Wise

An appellate court should interfere with a discretionary limitation decision only where the first-instance court exceeded the generous ambit within which reasonable disagreement is possible. Under section 33 of the Limitation Act 1980, the court must balance the relative prejudice to both parties and ask whether a fair trial remains possible on the available evidence. The judge need not identify every evidential consideration expressly if the judgment shows that the relevant factors were understood and weighed. Costs remain a discretionary matter. An issue-based order is not required where the issues are sufficiently interconnected that separate costs cannot fairly or sensibly be assessed.

The Claimant brought a personal injury claim arising from surgery performed by Mr Mohammed Mossa in January 2007. The claim alleged failure to obtain properly informed consent. Proceedings were issued in July 2015, after Mr Mossa had died. The Defendant pleaded limitation.

Master Cook found that the Claimant acquired knowledge in September 2011, so the claim was out of time under sections 11 and 14 of the Limitation Act 1980. He nevertheless exercised the discretion under section 33 to allow the claim to proceed and ordered the Defendant to pay the costs of the limitation issue. The Defendant appealed against both decisions. The central questions were whether the Master had erred in exercising the section 33 discretion and whether an issue-based costs order should have been made.

1. The appeal was dismissed on both the substantive limitation issue and costs. The appellate court was reviewing discretionary decisions, not making the decisions afresh. Under Tanfern Limited v Cameron MacDonald [2000] 1 W.L.R. 1311, intervention was justified only if the Master exceeded the generous ambit within which reasonable disagreement was possible.

2. The discretion under section 33 of the Limitation Act 1980 was unfettered, and an appellate court should be very slow to interfere: Nash v Eli Lilly & Co. [1993] 1 W.L.R. 782. The Master had correctly considered the statutory factors, including the length and reasons for delay, the effect of delay on the evidence, and the prejudice caused by Mr Mossa’s death.

3. The Master was entitled to treat the availability of medical records, evidence from other clinicians, expert evidence and the Claimant’s own evidence as relevant to whether a fair trial remained possible. The absence of Mr Mossa’s evidence was important but not determinative. The principles in Montgomery v Lanarkshire Health Board [2015] UKSC 11 made the doctor-patient dialogue relevant, but did not require the section 33 discretion to be exercised against the Claimant.

4. The Master’s judgment was sufficiently clear and thorough. He was not required to spell out every evidential possibility or factor, provided it was apparent that the relevant prejudice and evidential gaps had been weighed. He therefore exercised the section 33 discretion properly.

5. Costs were also discretionary. The principles discussed in A.I.E. Rediffusion Music Ltd v Phonographic Performance Ltd supported attention to the outcome of separate issues, but did not require an issue-based order in every case. The date-of-knowledge issue and the section 33 issue were interconnected, and the Master was entitled to conclude that the costs attributable to them could not fairly be treated as discrete. The approach in Hospira UK Ltd v Novartis AG [2013] EWHC 886 (Pat) did not alter that conclusion.

• High Court (Queen's Bench Division): Master Cook ordered that the Claimant could pursue the claim under section 33 of the Limitation Act 1980 and ordered the Defendant to pay the costs of the limitation determination. The High Court dismissed the Defendant’s appeal.