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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Henderson v Dorset Healthcare University Foundation NHS Trust [2016] EWHC 3032 (QB) (25 November 2016) URL: https://www.bailii.org/ew/cases/EWHC/QB/2016/3032.html Cite as: [2016] EWHC 3032 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Ecila Henderson |
Claimant |
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- and - |
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Dorset Healthcare University Foundation NHS Trust |
Defendant |
____________________
Michael Mylonas QC (instructed by DAC Beachcroft LLP) for the Defendant
Hearing date: 23 November 2016
____________________
Crown Copyright ©
Mr Justice Warby:
The claim
The applications
Issues and conclusions
(1) Whether the proposed amendments set out adequately pleaded claims with a real prospect of success.
(2) If not, should the court dismiss the application or adjourn it to allow the claims to be better formulated?
(3) Whether the application was subject to the restrictions on amendments that add new claims after the expiry of a limitation period which are imposed by CPR 17.4; and
(4) If so, whether the proposed human rights claims meet the threshold requirement for such an amendment, that they should "arise out of the same or substantially the same facts as are in issue on the existing claims"?
(5) Whether the amendment if allowed would require an adjournment of the preliminary issue trial.
(6) Discretion: if and in so far as the issue arose, should permission to amend be granted as a matter of discretion?
The procedural history
"damage for personal injury, loss and damage … under both the common law and pursuant to sections 6-8 of theHuman Rights Act
1998 (HRA) such damage suffered on 25th August 2010 and resulting from various acts and omissions which constituted both negligence and a breach of the defendants' duties under section 6(1) HRA which constituted unjustified and unlawful violations of Articles 2, 3 and 9 of the European Convention …"
"Human Rights Act
1998
For the avoidance of any doubt we confirm that the claimant does not concede that a claim under this heading will not be brought if liability is denied and it is necessary to serve Particulars of Claim, etc."
The wording is clumsy but its sense is clear: the claimant might pursue the human rights claim which had been set out in the claim form, if liability for negligence was denied.
"Response to allegations of negligence and causation
We are instructed to confirm that the issues of breach of duty and causation alleged against the Trust are not in dispute.
For the avoidance of doubt, breach of duty and causation in your client's negligence claim are admitted and the Trust will consent to the entry of Judgment for the claimant with damages to be assessed and/or approved …
… It follows that we accept that your client is entitled to recover damages in connection with her claim in negligence against the Trust. We invite you to particularise your client's losses …"
"Breach of duty and causation
"19 By reason of the matters set out above, the treatment of the Claimant was negligent.
20 The Claimant relies upon the admission of breach of duty, causation and the Claimant's entitlement to recover damages made by the Defendant in a letter dated 12 March 2014 in respect of the Claimant's negligence claim. In consequence of this admission the Court has entered judgment for the Claimant with damages to be assessed."
"The Claimant has suffered a loss of her liberty. She has been detained in hospital for a significantly longer period as a result of the stabbing of her mother than she would have been, had the incident not occurred. …"
"Section 7(5) of theHuman Rights Act
provides that a claim under the Act must be brought within one year. It is, therefore, denied that the Claimant's proposed claim under the Act should be allowed.
The claimant's claim for deprivation of liberty is also denied on the grounds of public policy and the defendant relies on the authority of Clunis v Camden & Islington Health Authority (1997)."
"We do though note that in your Reply you have indicated that it is suggested that the Claimant intends to bring a claim under theHuman Rights Act
1998. This is not correct. As set out in the Schedule of Loss, the Claimant is bringing a claim for loss of liberty as a head of general damages of the clinical negligence claim that has been brought."
"The main issue on which our client's claim for substantial damages turns is whether or not the court will be satisfied that she can establish that she bore no significant responsibility for the death of her Mother. We rely upon the very clear sentencing remarks of Mr Justice Foskett … Our position is that public policy cannot possibly bar the pleaded heads of damage (which reflect the consequences of her crime) in circumstances where the judge made it absolutely plain that there was no penal element and that she required treatment.
…
We have considered whether a preliminary issue can be framed so as to dispose one way or the other, of the claim but feel that any such course will in the words of Lord Diplock be a 'treacherous short cut.' …
A preliminary issue is only sensible if it is capable of either (1) resolving the whole proceedings or a significant element of the proceedings; or (2) significantly reducing the scope, and therefore the costs, of the main trial; or (3) significantly improving the possibility of a settlement of the whole proceedings.
We do not think this can be achieved in this case, particularly taking into account the risk of one or both parties appealing any first instance judgment given the uncertainty of the law in this area."
"MR BOWEN: The other point, Master, is that now that my HRA claim survives, so I am going to have to apply to amend –
MASTER COOK: This is a matter for you.
MR BOWEN: -- so the preliminary issue may well end up having to include some aspect of the HRA claim.
MR DE BONO: That is case management –
MASTER COOK: That at the moment is a case management decision. This is why I started at that point because it seems that that is the storm in a teacup about all this. You know, either there is a judgment there or it survives.
MR DE BONO: If you are going to make that application, it would be sensible to make it quickly.
MR BOWEN: I agree with that completely.
MASTER COOK: Yes.
MR BOWEN: That is something we can agree about. It may or may not happen, but …"
It did not happen soon. It did not happen until six months later, on 14 November 2016. That is despite the understandable pressing of the defendant's solicitors. They wrote the day after the hearing before Master Cook asking the claimant's solicitors to "confirm as soon as possible and in any event within the next 14 days" whether an application would be made to amend to plead HRA claims. There was no reply. In a further letter of 26 July 2016 the solicitors recorded that the defendant had "continued to proceed on the basis that the HRA claim is not being pursued". The claimant's solicitors did not demur or quibble, or say anything in response.
The proposed amendments
(1) First, there would be an addition to the paragraph which asserts a duty of care and the reasonable foreseeability of loss. The amendment would add that it was reasonably foreseeable that breach of duty would cause "violations of [the claimant's] rights under articles 3 and 8 … and so amounts to a breach of section 6(1)" of the HRA.
(2) Secondly, paragraph 19 (above) would be added to so as to read as follows:
"Breach of duty/violation of Articles 3 and 8 and causation
By reason of the matters set out above, the treatment of the claimant and the failure to assess her in the community following her release and recall her to psychiatric hospital within 36 hours of Ms Loynes call pleaded at paragraph 8 was negligent and violated her convention rights pursuant to Article 3 and 8 and amounted to a breach of section 6(1) of theHuman Rights Act
."
Paragraph 20 of the statement of case would remain unamended. It would therefore continue to rely upon "the admission of breach of duty, causation and the Claimant's entitlement to recover damages …" That of course relates only to the negligence claim.
(3) The third proposed amendment is to add two paragraphs to the prayer for relief: "(iii) An extension of time to pursuant to section 7(5)(b) HRA 1998; (iv) Damages/declaration/just satisfaction pursuant to section 8(3) HRA 1998."
The first issue: have tenable claims been formulated?
"Human rights
15.1 A party who seeks to rely on any provision of or right arising under theHuman Rights Act
1998 or seeks a remedy available under that Act –
(1) must state that fact in his statement of case; and
(2) must in his statement of case –
(a) give precise details of the Convention right which it is alleged has been infringed and details of the alleged infringement;
(b) specify the relief sought; … "
The second issue: should the claimant be given a further opportunity to plead a human rights case?
"15.2 A party who seeks to amend his statement of case to include the matters referred to in paragraph 15.1 must, unless the court orders otherwise, do so as soon as possible."
The third issue: does the application fall within CPR 17.4?
"17.4
(1) This rule applies where –
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired under –
(i) the Limitation Act 19801;
(ii) the Foreign Limitation Periods Act 19842; or
(iii) any other enactment which allows such an amendment, or under which such an amendment is allowed."
The fourth issue: do the HRA claims arise out of the same facts or substantially the same facts?
"… only if the new claim arises out of the same facts or substantially the same facts as are already in issue on a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings." (Emphasis added.)"
The fifth issue: would it be necessary to adjourn or vacate the trial?
The sixth issue: discretion