Azam v University Hospital Birmingham NHS Foundation Trust

An appellate court may interfere with a discretionary limitation decision only for legal or procedural error, failure to consider relevant matters, consideration of irrelevant matters, or a conclusion outside the generous ambit of reasonable disagreement. Under section 33 of the Limitation Act 1980, the court must decide what is fair and just in all the circumstances, with particular attention to real forensic prejudice.

A defendant asserting that delay has made evidence less cogent must provide evidence or a sound evidential basis. The death of the treating clinician is important but does not itself prove prejudice. Where the claim can fairly be assessed by available records, expert evidence and examination, the court may permit it to proceed despite very substantial delay. The assessment remains fact-sensitive.

The Trust appealed against a County Court order made after a preliminary trial of limitation. The order allowed Mr Azam to continue an out-of-time clinical-negligence claim arising from gynaecomastia surgery in 1996.

The lower court found that the primary limitation period had expired because Mr Azam had the requisite knowledge under section 14 of the Limitation Act 1980. It also rejected concealment under section 32. Exercising the section 33 discretion, it allowed the allegation that the operation had been negligently performed, but refused permission for the separate informed-consent allegation because the operating surgeon had died.

The central issue on appeal was whether the judge had wrongly assessed forensic prejudice or failed to carry out the statutory balancing exercise.

1. Appeal dismissed. The County Court judge had correctly directed himself and was entitled to permit the negligent-performance claim to continue under section 33 of the Limitation Act 1980.
2. An appellate court reviews, rather than re-exercises, a discretionary decision. It may intervene only for a misdirection of law, procedural unfairness, consideration of irrelevant matters, omission of relevant matters, or a decision that is plainly wrong. A plainly wrong result is one outside the generous ambit within which reasonable judges may differ. The weight given to relevant factors is ordinarily for the trial judge.
3. The judge had correctly applied the section 33 inquiry. The claimant bore the burden of showing that an extension was equitable. The Trust bore the evidential burden of showing that delay was likely to make its evidence less cogent. The ultimate question was whether it was fair and just to allow the action to proceed, as explained in Cain v Francis [2008] EWCA Civ 1451.
4. The Trust had not shown material prejudice in defending the negligent-performance allegation. Assertions that other witnesses could not be traced or would have poor recollection were speculative without evidence. The available records, examination of the claimant and expert evidence could address the surgical technique and its result. The operating surgeon’s death was relevant but did not automatically establish prejudice; the Trust had produced no evidence showing how his account would materially assist a defence to this allegation.
5. The distinct treatment of the informed-consent allegation confirmed that a proper balancing exercise had been undertaken. The surgeon’s evidence could have been important to the disputed consent discussion, so the lower court was entitled to refuse an extension for that issue while allowing the technically different negligent-performance issue.
6. The length of delay and the claimant’s lack of promptitude did not compel the contrary result. The judge was entitled to give decisive weight to the absence of demonstrated prejudice. The decision creates no general rule permitting stale claims where a clinician has died; section 33 remains dependent on the evidence and circumstances of each case.

• High Court (Queen's Bench Division): Dismissed the Trust's appeal and upheld the exercise of discretion under section 33 of the Limitation Act 1980.
• County Court at Birmingham: On 2 September 2019, Judge Rawlings held the claim time-barred under section 14, rejected concealment, allowed the negligent-performance claim to proceed under section 33, and refused an extension for the informed-consent allegation. No citation was stated.