Ellis v Heart of England NHS Foundation Trust & Ors

Section 33 of the Limitation Act 1980 confers an unfettered discretion. The court must consider all the circumstances and balance the prejudice to the claimant against that to the defendant. The statutory factors guide that evaluation but do not create a rigid or sequential test. The claimant bears the ultimate burden of showing that it would be equitable to disapply the limitation period, while the defendant bears the evidential burden of identifying loss of evidential cogency caused by delay. The court should consider the prospects of a fair trial, the reasons for delay, prior notification of the claim, available records and witnesses, and the consequences to the claimant if the claim cannot proceed. Relief from sanctions principles should not be imported into the section 33 exercise.

The claimant brought a clinical negligence claim arising from treatment in February 2013. The third defendant raised limitation, while the first and second defendants had agreed extensions of time. The claimant’s solicitors initially released the third defendant after receiving an unsupportive expert report, but later obtained a supportive report and issued proceedings against him on 25 January 2017.

The issue was whether the claim against the third defendant was statute-barred and, if so, whether the court should exercise its discretion under section 33 of the Limitation Act 1980 to permit it to proceed.

1. Application allowed. It was just and equitable to allow the claim against the third defendant to proceed.
2. The court applied the principles summarised by the Court of Appeal in The Chief Constable of Greater Manchester Police v Carroll [2017] EWCA Civ 1992. Section 33 confers an unfettered discretion requiring a broad assessment of all the circumstances. The exercise involves balancing the claimant’s prejudice against the defendant’s prejudice, with the ultimate burden on the claimant.
3. The court declined to import the stricter approach applicable to relief from sanctions applications. The relevant question was not simply the total period of delay, but the statutory balance of prejudice and the prospects of a fair trial.
4. The third defendant had early notice of the potential claim, received a formal letter of claim in May 2015, had an opportunity to investigate and respond within the primary limitation period, and had agreed extensions of time. He identified no lost documents or witnesses. His contemporaneous records and recollection remained available.
5. The delay was understandable because the claimant’s first GP expert did not support the claim. By contrast, refusing an extension would cause profound prejudice to the claimant, who would lose the opportunity to pursue a significant claim and be left with an uncertain claim against his legal advisers. The claims against the other defendants did not provide an equivalent remedy because the causation issues could produce a different outcome.
6. The parties were directed to agree an order reflecting the judgment, including costs.