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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Pennine Acute Hospitals NHS Trust v De Meza  EWCA Civ 1711 (10 November 2017)
Cite as:  EWCA Civ 1711
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ON APPEAL FROM LIVERPOOL COUNTY COURT
MR GARSIDE QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LINDBLOM
LADY JUSTICE THIRLWALL
| THE PENNINE ACUTE HOSPITALS NHS TRUST
|MR SIMON DE MEZA
The Respondent was unrepresented and appeared as a litigant in person
Hearing date: 26th July 2017
Crown Copyright ©
LADY JUSTICE THIRLWALL :
"As per the appellant's latter statement why did I not instruct my legal representatives of my findings after the limitation hearing of the association between Dr BA Enoch and Recorder Charles Garside soon thereafter the hearing date. This is quite simple, by the time the case was heard I had made it quite clear with my legal team I was not happy the many in which they handled the case and the manner in which I was treated, in that my lawyer each time I had requested for the witness statement to presented in my case dossier for the courts, I had been told that if was unhappy with the manner in which they were handlng my case to find someone else."The solicitors came off the record in mid June 2016, a month after the hearing, and two weeks after the claimant says he made the discoveries to which I have referred. There is no explanation for not having raised the issue while the solicitors were still on the record, still less for failing to raise it in the year that elapsed before the hearing of the appeal. Given that the recorder raised his knowledge of Dr Enoch at the hearing and no objection was taken then or after the judgment the overwhelming likelihood is that experienced lawyers considered there was no reason to object. We find that unsurprising. Had the recorder been a close personal friend of Dr Enoch he would have disclosed it. There is no evidence that this was the case. What the claimant's researches reveal is, at its highest, a professional social relationship which was the reason for the disclosure by the recorder in the first place. I am quite satisfied that there is nothing in this point.
"(3) An action to which this section applies shall not be brought after the expiry of the period applicable in accordance with sub-section (4)….
(4) … [T]he period applicable is three years from –(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured."
(1) … [I]n section 11… references to a person's date of knowledge are references to the date in which he first had knowledge of the following facts –(a) that the injury in question was significant; and(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment."
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence… or breach of duty; and
(c) the identity of the defendant; …
The claimant's case on limitation
"For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment."
The recorder did not refer to this in terms but it is plain from his findings as to the seriousness of the injury that a person in that position would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. The threshold for sufficiently serious is not high; it is more than minimal. This was passed by some margin. Accordingly, the recorder's finding that the injury was significant was correct.
The application under Section 33 LA 1980
If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –(a) the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and..
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –(a) the length of, and the reasons for, the delay on the part of the plaintiff;11 [by section 11A] or (as the case may be) by section 12;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action
(e) knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
Lord Justice Lindblom: I agree
Lord Justice Ryder: I also agree