The recent case of Azam v University Hospital Birmingham NHS Foundation Trust  EWHC 3384 (QB) is an interesting appeal against a decision under s.33 of the Limitation Act 1980 (‘LA 1980’) to allow a clinical negligence claim to proceed some 18 years out of time in circumstances where the allegedly negligent operating surgeon had died since the expiry of the primary limitation period.
The case is a good reminder for practitioners not only of the necessary evidential requirements when dealing with applications under s.33 and, in particular, when asserting prejudice, but also the difficulties in challenging an exercise of judicial discretion on appeal.
The Claimant underwent gynaecomastia surgery in March 1996 performed at the Defendant Trust’s hospital by a consultant surgeon who died in April 2014. The claim was not issued until July 2017.
At a trial on limitation as a preliminary issue in September 2019 His Honour Judge Rawlings held that the primary limitation period had expired in March 1999 because the Claimant had the necessary knowledge for the purposes of s.14 of the LA 1980 almost immediately after the surgery and not, as the Claimant asserted, in 2014 after he had consulted another surgeon to discuss possible remedial surgery. The judge held that:
1. there might well be significant prejudice to the Defendant Trust if the Claimant were allowed to proceed with his allegation that the surgeon had failed to obtain properly informed consent for the surgery as, if this head of claim were allowed to proceed out of time, the now deceased surgeon could not be called to give evidence as to whether the downsides of surgery, or other options, were adequately discussed. There was a dispute about whether the consent form accurately recorded the content of any discussion.
2. there was no significant prejudice to the Trust in defending the claim that the surgery had been carried out negligently despite the absence of live evidence from the surgeon. The judge held that even if the claim had been brought within the primary limitation period the surgeon would have been very unlikely to have been able to recall the particular operation in any event. The evidence as to how well the operation had been performed remained the appearance of the Claimant’s chest, which had been reviewed by the Claimant’s expert and could equally be reviewed by any expert relied upon by the Trust. Both experts would be relying upon this and on the contemporaneous medical records to provide an opinion on the technique used and the competence with which it was carried out.
The Trust appealed in respect of the second finding above, contending that the loss of the operating surgeon’s evidence was “the very epitome of forensic prejudice”, that the judge had erred in his assessment of the prejudice faced by the Trust in defending the claim and that he had been manifestly wrong in his conclusion and in the exercise of his discretion.
Permission to appeal was granted by Mr Justice Martin Spencer at an oral hearing in June 2020.
Analysis of the Appeal
On appeal Mr Justice Saini helpfully set out that an appellate court will only interfere with a discretionary evaluation where an appellant can identify one or more of the following errors:
Therefore, even if the appeal court would have preferred a different answer, unless the judge’s decision was plainly wrong it will be left undisturbed. It is clear that the hurdle for an appellant is a high one whenever the challenge is made to the outcome of a discretionary balancing exercise. The appellate court’s role is to police a very wide perimeter and it will be rare that a judge who has exercised a discretion having regard to relevant considerations will have come to a conclusion outside that perimeter.
It was held that there had been no misdirection in law. The judge had correctly directed himself that it was for the Claimant to establish that it would be inequitable not to allow the claim to proceed, but the evidential burden was on the Trust to show that the evidence adduced or likely to be adduced by it was less cogent.
The key question was whether, stepping back and surveying “all the circumstances of the case” it is “fair and just” (the meaning of “equitable”) to allow the action to proceed. It was noted that a defendant only deserves to have the obligation to pay damages removed if the passage of time has significantly diminished its opportunity to defend itself.
Importantly it was held that a finding under s.33(3)(b) of the LA 1980 that having regard to the delay “the evidence adduced or likely to be adduced… is likely to be less cogent” cannot be made in reliance upon bare assertion in submissions. It requires at the very least some evidential or sound inferential basis upon which to make findings.
The Trust had adduced no evidence at all of any steps it had taken to try to trace any other witness it had identified (but which it could not trace), nor any issue with their likely recall of events if traced. These are matters which mandate evidence if a party wishes to assert prejudice given the evidential burden is on the party asserting any prejudice: LB Haringey v FZO  EWCA Civ 180 at [114-115] and Constable of Greater Manchester Police v Carroll  EWCA Civ 1992.
The judge was correct in finding that, even if the claim had been brought before the surgeon’s death, it would have been difficult for him to add significant information which did not appear in the records because it is highly unlikely that he would have recalled the operation and any such additional information, if material, should have been recorded in the records. There was no error in the judge’s approach, which was to give weight to the existence of the medical records and to conclude that the issue in the case turned on expert evidence.
Prejudice is not self-proving by reason of the death of the clinician in every case. It is clearly an important factor and may in some cases have very substantial weight but it is not determinative: Mossa’s Estate v Barbara Wise  EWHC 2608 (QB).
The Trust had failed to call any evidence as to what assistance the operating surgeon could provide to any Trust expert. The Trust relied on no expert evidence at the limitation trial to explain, even in outline terms, how the evidence of the operating surgeon would be relevant to the claim. Such evidence could have been commissioned but the Trust chose not to call expert evidence to make good its evidential burden of asserted prejudice. This was a litigation decision open to it, but, as the judge rightly noted, it carries risks in a trial situation.
Accordingly, the Judge had available to him and was entitled to attach weight to the fact that the Claimant’s expert said in his report that the wrong technique was used and the operation was carried out very badly. The evidence as to what was done in the operation and how it was done remained in effect the appearance of the Claimant’s chest, according to his expert, which was examined by his expert and could be examined by the Trust’s expert. Given the nature of the type of errors said to have been made by the operating surgeon, the Trust had to establish its case on prejudice flowing from the death of the surgeon by evidence and not mere assertion.