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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Leeson v Marsden & Anor [2008] EWHC 1011 (QB) (13 May 2008) URL: https://www.bailii.org/ew/cases/EWHC/QB/2008/1011.html Cite as: (2008) 103 BMLR 49, [2008] EWHC 1011 (QB), [2008] LS Law Medical 393 |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
SUSAN LEESON | Claimant | |
- and – | ||
RACHAEL MARSDEN | First Defendant | |
- and – | ||
UNITED BRISTOL HEALTHCARE NHS TRUST | Second Defendant |
____________________
Angus Moon QC (instructed by Radcliffes Le Brasseur, Solicitors) for the First Defendant
Martin Porter QC (instructed by Bevan Brittan LLP, Solicitors) for the Second Defendant
Hearing dates: 31 January 2008 to 4 February 2008
____________________
Crown Copyright ©
Mrs. Justice Cox :
Introduction
(i) Whether I should exercise my discretion under section 33 of the Limitation Act 1980 to disapply the limitation period and to permit this claim to proceed; or
(ii) Whether this action is an abuse of the process and should be struck out.
The Substantive Claim
"There is no note to the effect that the Claimant told the First Defendant that the fingers on her right hand had begun to curl: in the premises it is denied that the Claimant did so inform the First Defendant."
A positive case is then pleaded by reference both to the contents of her note and to what would have been her usual practice in such circumstances, a form of pleading commonly to be found in Defences served on behalf of Defendants in clinical negligence litigation.
"… After taking a history from the Claimant and her daughter including a history that the Claimant's right arm felt numb and weak, the First Defendant would have examined the Claimant's spine and where the Claimant was complaining of pain. It appears from the note that the First Defendant found no localised tenderness. It also appears from the note that the First Defendant found that the Claimant's power in her right arm and her reflexes were normal and that she had an area of coarse crackly breathing at the base of her left lung. The First Defendant prescribed higher dosage antibiotics and appears to have decided to review the Claimant the following morning.
…..
(iv) It is the First Defendant's case that she would have taken a detailed history and that there was no indication that the Claimant was suffering from an impending severe neurological infection. The First Defendant's case is that she would have carried out a careful examination and the signs and symptoms were compatible with a possible viral infection with associated cervical spondylitic symptoms which accorded with the Claimant's medical history. The First Defendant's decision to treat with antibiotics and review the case the following day accorded with the standards of a responsible body of GP Registrars in December 2000."
"The First Defendant would have examined the Claimant's arm. There is no note to the effect that the Claimant showed the First Defendant that her fingers had curled in. The First Defendant decided to arrange further tests."
"18. Further, it is admitted, that had the Claimant been referred at that time, an MRI scan would have been performed. Even if, which is neither admitted nor denied (and must be proved), the epidural and paravertebral abscess had been identified, antibiotic therapy for an acute extra-dural abscess would have been ineffective and inappropriate and surgery – to relieve the tension of the abscess and to allow bacteriological examination of the pus – would, therefore, still have been required.
…..
21. The Claimant's neurological deficit was caused by the spinal extradural abscess and cord compression and associated compromise to the vascular supply to the cervical spinal cord with central cord infarction.
22. By the time of her presentation to A&E on 13th December 2000, the Claimant was already exhibiting signs and symptoms of paraplegia. There was a history of sudden onset back pain and weak legs with numbness and loss of power in the right arm.
23. Neurological deficit of the type which the Claimant subsequently developed was, in those circumstances, inevitable by the time at which she was seen by Dr Patel. The admitted breach of duty had, therefore, no, or no material, causal effect."
The Procedural History
"129 In our judgment, the failure of the First Defendant to respond to the letter of claim was no reason at all for not serving the claim form. It may have been a sufficient reason for seeking an extension of time for service of the particulars of claim, although even that is questionable. But there was no obstacle to serving the claim form. It is not suggested that the Claimant's solicitor did not know where to effect service. In not serving the document, the Claimant's solicitor made a serious error of judgment.
130 Like the judge, we regret that we cannot share the district judge's assessment of the conduct of the Claimant's solicitor. We do not consider that she acted reasonably and quickly to apply for the extension of time. By 9 March, there remained only 15 days of the four months period and this was a case where the cause of action had become statute-barred in December 2003. Even if there were difficulties in effecting service, the solicitor left matters until very late before she made a move. And when she received the order of 23 March refusing to grant an extension of time for service of the claim form, she could and should have taken immediate steps to serve the document so as to ensure that it was served by 24 March. She failed to send the document by first class post on 23 March and failed in any event to obtain notification from the Defendants' solicitors that they were authorised to accept service."
An order for the costs of both Defendants was made against the Claimant but, since she was publicly funded, the order contained the usual provision that such order was not to be enforced without the permission of the Court.
"Earlier diagnosis and especially if leading to investigation and surgical treatment before 13 December 2000 may well have resulted in little or no permanent deficit. By the morning of 13 December 2000 paraplegia was starting to develop. At this stage also I think earlier intervention could have rescued more neurological function."
In his covering letter, referring to the first admission to hospital on 13th December, he described a "window when more experienced advice and action should have followed that may have produced a better outcome" and said that,
"It is really the fulminating and rapid clinical picture of an acute spinal cord abscess over a period of hours rather than days which is the critical time as far as causation is concerned."
"69. I confirm for the avoidance of doubt that John Hodge solicitors will be responsible for the Defendants' costs of the first action in so far as they relate to the applications to extend time and the Defendants' subsequent successful attempts to have that action struck out.
70. Further, John Hodge will be responsible for any interest that is not recovered by the Claimant from the Defendants, that is attributable to any act or omission of John Hodge solicitors on any damages recovered by the Claimant from the date that the claim form in the first action was served to the date when the claim form was served in the second action."
Abuse of Process
"To promote strict application of the prescribed limitation rules by providing an exceptional means of accommodating very hard cases in which, but for the possibility of resorting to such means, Courts might be persuaded to interpret the rules in a way which would strain their meaning or undermine their object."
"(1) 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; (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 11, by section 11A or (as the case may be) by section 12; (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) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at the 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."
"… the effect of section 11 is to provide the Defendant with a time limit defence in any proceedings brought after the expiry of the three-year period. When section 33(1) refers to consideration whether it would be equitable to allow 'an action' to proceed it is referring to such an action. It is prejudice to the Plaintiff by application of section 11 to that action to which section 33(1)(a) refers, and that action to which the court may direct that the provisions of section 11 shall not apply. Thus the question for the court under section 33 is always whether it is equitable or inequitable as between the parties to override the time bar which, if relied on by the Defendant, will, unless disapplied by order of the court, defeat the action which the Plaintiff has ex hypothesi brought out of time."
"… But the action timeously brought by the Plaintiff in Walkley, as in the Firman v Ellis [1978] QB 886 cases, could not be effectively pursued. The Plaintiff could succeed only in his second action. To that section 11 provided a bar which prejudiced him by defeating his action. Section 11 did not prejudice the Plaintiff in his first action, brought in time, but that was not the relevant action. When in Thompson [1981] 1 WLR 744 it was said, more than once, that section 11 did not affect Mr. Walkley at all, this overlooked the fact that section 11 affected him, unless disapplied, by defeating his second action. The negligence of his solicitors gave rise to the need for a second action, but it was the time bar which meant that that action was bound to fail."
"… between cases where the Plaintiff had issued proceedings within the primary limitation period, which had thereafter foundered for some procedural reason, and cases where no proceedings had been issued at all. There was no rational ground for concluding that a Defendant should be vulnerable in the latter case, where the Plaintiff's solicitor's negligence would probably be greater but not in the former case where it would probably be less. This was an anomaly caused not by the rule that proceedings are brought when the writ is issued, and not by the language of the statute, but by the decision in Walkley. In the result the distinction lacked any principled justification."
Again Lord Bingham observed that there was no answer to this criticism.
"32 In resolving an application under section 33 the court must make a decision of which the inevitable effect is either to deprive the defendant of an accrued statute-bar defence or to stifle the claimant's action against the tortfeasor who caused his personal injuries. In choosing between these outcomes the court must be guided by what appears to it to be equitable, which I take to mean no more (but also no less) than fair, and it must have regard to all the circumstances of the case and in particular the six matters listed in subsection (3). These are, as Lord Diplock observed in Thompson [1981] 1 WLR 744, 751, 'a curious hotchpotch', for reasons which he examined. But there is, as it seems to me, a problem underlying the whole of section 33: that it appears to treat the plaintiff and the defendant as individuals liable to suffer prejudice, and with no recognition that it is frequently the competing interests of insurers which will be liable to suffer prejudice. I cannot accept the suggestion by the MIB that the references to 'or any person whom he represents' in subsections (1)(a) and (1)(b) are capable of referring to insurers, since a plaintiff and a defendant do not in any legal sense 'represent' their insurers. Faced by this problem, but recognising the reality of insurance, the courts have routinely and rightly taken account of the parties' insurance rights. Thus a plaintiff's rights against his insured solicitor are very relevant (Thompson, p 752) but this does not mean that refusal of an order under section 33 will not prejudice him to some degree (Thompson, pp 750 – 751)
33 Given the rarity of its exposure to problems arising under section 33, the House cannot match the experience and insight which first instance judges and Lords Justices bring to bear on these problems. I do not therefore think it would be well-advised to seek to give guidance on the exercise of this discretion. If Walkley represents a very clear case for refusal to exercise the discretion, Hartley v Birmingham City District Council [1992] 1 WLR 968, 978 – 979, might be thought a clear case for its exercise: the writ was issued one day late; there had been early notification of the claim; and the Defendant's ability to defend the case was unaffected. Thus even if the Plaintiff had a cast-iron claim against her solicitors the limitation defence could fairly be regarded as a windfall or gratuitous bonus. Between these extremes lie a variety of cases turning on different facts. "
"It was argued below and in the House that it was an abuse for the Appellant to bring a second action while his first action was still extant. The judge accepted that in the ordinary way it is an abuse to pursue two actions against the same Defendants in respect of the same subject matter and indicated that if he were giving permission for the second action to continue he would require the first action to be discontinued. This was, I think, the correct response. As it was, he dismissed both actions."
"The reason it had to be commenced was that they knew that they were in difficulties as against the M.I.B. They knew that the driver had no assets to satisfy a Judgment, and therefore there had to be a device to bring the matters back before the court. But what was being sought to be done was to re-litigate that that had been litigated. I accept there hadn't been a trial of the action, but they had their judgment; they'd given intention of notification but they had failed to serve within the timescale. I am quite satisfied that upon those grounds there can be no merit in the maintenance of a second action. It seems to me that that is exactly the sort of action that the courts should not have regard to."
"24. It seems clear from the passage that we have quoted from the speech of Lord Bingham in Horton v Sadler that the House of Lords did not consider that there was anything objectionable in the Claimant in that case commencing a second action in order to cure the failure to give due notice to the MIB.
25. Where a Claimant has not given a timely notice to the MIB and the MIB is not prepared to overlook this, we can see no objection in principle to the Claimant discontinuing proceedings and commencing a fresh action, in which a timely notice is given to the MIB. Such conduct will normally remove any prejudice the MIB might otherwise be under as a result of late notice. For this reason, whatever the merits of his decision in respect of limitation, we hold that the judge was wrong to strike out this action on the ground of abuse of process. "
"In Birkett v James [1978] AC 297 the consequence to other litigants and to the courts of inordinate delay was not a consideration which was in issue. From now on it is going to be a consideration of increasing significance. Litigants and their legal advisers, must therefore recognise that any delay which occurs from now on will be assessed not only from the point of view of the prejudice caused to the particular litigants whose case it is, but also in relation to the effect it can have on other litigants who are wishing to have their cases heard and prejudice which is caused to the due administration of civil justice. The existing rules do contain time limits which are designed to achieve the disposal of litigation within a reasonable time scale. Those rules should be observed.
It is already recognised by Grovit v Doctor [1997] 1 WLR 640 that to continue litigation with no intention to bring it to a conclusion can amount to an abuse of process. We think that the change in culture which is already taking place will enable courts to recognise for the future, more readily than heretofore, that a wholesale disregard of the rules is an abuse of process as suggested by Parker LJ in Culbert v Stephen G Westwell Co Ltd [1993] PIQR P54.
While an abuse of process can be within the first category identified in Birkett v James [1978] AC 297 it is also a separate ground for striking out or staying an action (see Grovit v Doctor at pp 642-643) which does not depend on the need to show prejudice to the Defendant or that a fair trial is no longer possible. The more ready recognition that wholesale failure, as such, to comply with the rules justifies an action being struck out, as long as it is just to do so, will avoid much time and expense being incurred in investigating questions of prejudice, and allow the striking out of actions whether or not the limitation period has expired."
"The effect on other litigants of delay in the proceedings in which that delay has occurred is, now, a factor to which the court must have regard when considering whether to strike out those proceedings. But, equally, the fact that earlier proceedings have been struck out on the grounds of delay is a factor to which the court must have regard when considering whether to strike out fresh proceedings brought to enforce the same claim. The reason, as it seems to me, is that, when considering whether to allow the fresh proceedings to continue, the court must address the question whether that is an appropriate use of the court's resources having regard (i) to the fact that the Claimant has already had a share of those resources in the first action and (ii) that his claim to a further share must be balanced against the demands of other litigants."
And at paragraphs 34-35:
"34 For my part, I think that the time has come for this court to hold that the 'change of culture' which has taken place in the last three years - and, in particular, the advent of the Civil Procedure Rules - has led to a position in which it is no longer open to a litigant whose action has been struck out on the grounds of inordinate and inexcusable delay to rely on the principle that a second action commenced within the limitation period will not be struck out save in exceptional cases. The position, now, is that the court must address the application to strike out the second action with the overriding objective of the Civil Procedure Rules in mind – and must consider whether the Claimant's wish to have 'a second bite at the cherry' outweighs the need to allot its own limited resources to other cases. The courts should now follow the guidance given by this court on the Arbuthnot Latham case [1998] 1 WLR 1426, 1436 – 1437:
'The question whether a fresh action can be commenced will then be a matter for the discretion of the court when considering any application to strike out that action, and any excuse given for the misconduct of the previous action: see Janov v Morris [1981] 1 WLR 1389. The position is the same as it is under the first limb of Birkett v James. In exercising its discretion as to whether to strike out the second action, that court should start with the assumption that if a party has had one action struck out for abuse of process some special reason has to be identified to justify a second action being allowed to proceed.'
35 It follows from the preceding paragraphs of this judgment that I am satisfied that the judge adopted the wrong approach to the question whether the claim in the present action (or any part of it) should be struck out on the grounds of abuse. Although he recognised (correctly) the important public interest in the use of the court time, he failed to give any weight to that interest in reaching the conclusion which he did. In those circumstances it is for this court to exercise its own discretion."
Conclusions
"… as Lord Bingham observed, the crucial question is whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it an issue which could have been raised before. The burden is on the party asserting the abuse to establish it. Moreover, as Lord Bingham put it, there will rarely be a finding of abuse unless the later proceedings involve what the court regards as the unjust harassment of a party. There may be such harassment if, as Wigram V-C put it in the passage from Henderson v Henderson quoted by Lloyd LJ at [25], a party fails to rely upon a point which properly belonged to the first litigation and which, with reasonable diligence, he might reasonably have brought forward at the time. However, the question must be resolved by a consideration of all the circumstances of the case."
"The Claimant herself was largely blameless and the sins of her solicitors must not be visited upon her. To refuse to allow the claim to proceed in the circumstances of this case gives what Lord Griffiths in Donovan v Gwentoys Ltd [1990] 1WLR 472, 479 described as 'a totally unexpected windfall benefit for the Defendants' insurers'. In his inimitable way Ormrod LJ observed in Chappell v Cooper[1980] 1 WLR 958, 967:
'The result is that the game will continue to be played between Defendants' insurance companies and solicitors' insurance companies. That is not a situation which I personally find at all satisfactory …'
Nor do I find that to be a satisfactory solution in this case. Standing back and looking at the case in the round I am satisfied that the justice and fairness of the case dictates that it is equitable that the Claimant be permitted to proceed with her action because the prejudice to the Defendant does not outweigh the prejudice to the Claimant in having her claim struck out as time-barred."
"This slip did not prejudice the Defendant or his insurers in the least. Yet as soon as the Defendant's insurers discovered it, they cried 'snap' and broke off the negotiations. They said to the Plaintiff: 'You are statute-barred. We are not liable. You sue your own solicitors for negligence. Make their insurers pay. And not us.' All of the judges rejected this submission. Each of the judges exercised his discretion in favour of the Plaintiff. I think they were quite right. As a matter of simple justice, it is the Defendant's insurers who should pay the Plaintiff's claim. They have received the premiums to cover the risk of these accidents. They should not be allowed to foist their liability on to the Plaintiff's solicitors or their insurers by calling 'snap' as if it were a game of cards."
Similar observations were made by Ormrod LJ at 910B – C.
Section 33 Discretion
"(ii) The burden of showing that it would be equitable to disapply the limitation period lies on the claimant and it is a heavy burden. Another way of putting it is that it is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it;"
Mr. Moon submits that I should approach the matter in this way and start from the basis that the Claimant has a "heavy burden" in showing sufficient evidence to satisfy me that it is equitable for the limitation provisions to be disapplied, by way of an "exceptional indulgence".
Section 33(3)(a): Delay
"The situation thus appears to be as follows. In January 2004 the MIB dealt an apparent death blow to the appellant's claim by taking the point that she had not given timely notice of her claim. It was not until the decision of the House of Lords in Horton v Sadler was delivered on 14 June 2006 that her claim received a potential kiss of life. It is fortuitous that 18 months elapsed before this kiss of life was delivered. It is also fortuitous that the appellant had already commenced a second action, which seemed doomed to failure. It does not seem to us that the appellant should be blamed for the delay that has occurred between January 2004 and June 2006. It might even be said that the MIB brought this on its own head, by taking a somewhat technical point with the intention of killing the action."
"If [the Claimant] has acted promptly and reasonably it is not to be counted against him, when it comes to weighing conduct, that his lawyers have been dilatory and allowed the primary limitation period to expire without issuing a writ."
(i) On the observations of Sir Christopher Staughton in Das v Ganju [1999] Lloyd's Med LR 198 at 204, that the suggestion that, as a matter of law, anything done by the lawyers must be visited on the client cannot be reconciled with Thompson v Brown.
(ii) The Court of Appeal's decision in Corbin v Penfold Metallising Co Ltd [2000] Lloyd's Med LR in which Buxton LJ agreed with the view expressed in Das and was satisfied that it was justified by what Lord Diplock had said in Thompson v Brown. At paragraphs 26 and 27 he said as follows:
"26. Those observations of Sir Christopher Staughton were adopted unanimously by this court. Mr Tonna said, when asked about it, that each case turns on its own facts, and that we should reconsider this point in the present context: whether the judge, in truth, was right to attribute the solicitor's failings to Mr Corbin. I am not, for my part, persuaded that that is so. It seems to me that the court in Das v Ganju was speaking more generally, and certainly saying – as Sir Christopher Staughton said in terms- there was certainly no rule of law to visit the faults of the lawyers upon the claimant, when one is looking at this particular area of the limitation jurisdiction. But even if that is not right, and even if we would be correct in adopting Mr Tonna's invitation, it seems to me that there is no reason at all in this case, and no justification, for attributing what the solicitors did to Mr Corbin, as a matter of his fault. He did not contribute to the delay in any way. He was a passive observer of what was going on. The fact that the solicitors may or may not have acted properly and the fact that the consultants – not any of those that I have mentioned by name – may or may not have acted properly when consulted, could not possibly be said, in any realistic way, to be Mr Corbin's fault.
27. As I have said at the beginning of this section of the judgment, and I repeat it, those faults are not to be attributed to him, unless there is a rule that he must suffer for his solicitors' faults. Das v Ganju clearly said there is no such rule. I am driven to conclude, therefore, that the judge was wrong to attribute the failings of the solicitors, which he found to be the reason for the delay to Mr Corbin, and more generally was wrong when exercising his discretion, to describe the claimant as someone who had been less than vigilant on his own account. It seems to me that that characterisation must have rested on an assumption that he was responsible for his solicitors' faults and that was an assumption that was not correct in law."
(iii) The Court of Appeal's decision in Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419 in which, after considering Das and Corbin, Sir Christopher Slade said at paragraph 27, that
"…. As the authorities stand, so far as fault on the part of the claimant is a relevant factor in exercising the Court's discretion under section 33, his solicitors' faults are not to be attributed to him personally";
and at paragraph 40, that:
"…. the claimant acted reasonably and with sufficient promptness and cannot be fairly subjected to personal criticism. His solicitors can be fairly criticised for their admitted negligence in failing to issue a writ until seven seeks after the expiry of the limitation period. But as the Thompson and Corbin cases show, this delay is not to be held against him personally for the purpose of the exercise of the court's discretion."
"… In Das v Ganju [1999] Lloyd's Rep Med 198, 204 and Corbin v Penfold Metallising Co Ltd [2000] Lloyd's Rep Med 247, 251, the Court of Appeal expressed the view that there was no rule that the claimant must suffer for his solicitor's default. If this is interpreted, as it was in Corbin, as meaning that the court is not entitled to take into account against a party the failings of his solicitors who let the action go out of time, that could not in my view be sustained and the criticism voiced in the notes to the reports of Das and Corbin would be justified. The claimant must bear responsibility, as against the defendant, for delays which have occurred, whether caused by his own default or that of his solicitors, and in numerous cases that has been accepted: see, eg, Firman v Ellis [1978] QB 886, Thompson v Brown [1981] 1 WLR 744 and Donovan v Gwentoys Ltd [1990] 1 WRL 472. The reason was articulated by Ward LJ in Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666, 1675, a case of striking out, when he said:
'Ordinarily this court should not distinguish between the litigant himself and his advisers. There are good reasons why the court should not: first, if anyone is to suffer for the failure of the solicitor it is better that it be the client than another party to the litigation; secondly, the disgruntled client may in appropriate cases have his remedies in damages or in respect of the wasted costs; thirdly, it seems to me that it would become a charter for the incompetent (as Mr McGregor eloquently put it) were this court to allow almost impossible investigations in apportioning blame between solicitor and counsel on the one hand, or between themselves and their client on the other."
Mr. Moon acknowledges that Lord Carswell was alone in expressing this view, and that only Lord Brown stated that he agreed with his opinion. Nevertheless, he relies upon these observations.
"It was also suggested that, in section 2D (3) the words " the plaintiff " refer only to the plaintiff personally, and do not include his solicitor or agent. That depends on the context. In sub-paragraph (d) it refers to the plaintiff personally. But in sub-paragraphs (a), (b) and (c) it includes his solicitor. I think " the plaintiff " includes his solicitor or agent except where the context confines it to the plaintiff personally."
Section 33(3)(e) and (f)
Section 33(3)(c)
Section 33(3)(b) – Cogency
"We have been in contact with a consultant in the Emergency Department who provided comment in October 2001 in order to assist with these enquiries. He advises that his recollection of events in 2000, the systems in place and any requirements at that time are not as good as they would have been had he been asked to consider the questions now raised by the Claimant in October 2001."
She does not state, however, that his recollection is non-existent. Nor does she refer to triage protocols and waiting times specifically, rather than refer just in general terms to all the evidential prejudice then being asserted, paragraphs (b) and (c) of which are now no longer pursued. There is no evidence from Dr Lloyd stating that he would be unable to assist in respect of these particular matters. I will be returning to the matter of Mr. Hockley's report and the Trust's submissions as to general prejudice in this respect below. Ultimately, the level of priority required for this Claimant on admission will turn, in my view, on the judge's findings as to her symptoms on admission and on expert opinion as to when she should reasonably have been seen by a doctor, given her known and recorded presentation in the notes.
The Balance of Prejudice
(1) The Claimant is now attempting unreasonably to use further court resources and to have a second bite at the cherry against these Defendants, having already used up considerable court resources in seeking to preserve the first claim, which was correctly struck out following a serious error of judgment by John Hodge in failing to serve the claim form in time. This is the Securum Finance point already referred to when dealing with abuse of process.
(2) This is now a stale claim, in which the Court will be having to deal with acceptable standards of medical practice in 2000, which creates difficulties in particular for expert witnesses.
(3) Mr. Moon emphasises the prejudice caused to Dr Marsden by having this claim hanging over her head when she had reasonably sought to put the allegations behind her in January 2006, when the original claim was struck out; and who is now being required to address events which occurred when she was in training.
(4) Mr. Porter emphasises the prejudice caused to the Trust by providing Mr. Hockley's reports to the Claimant's present solicitors, when they had not been disclosed in the first action and were privileged. The Claimant will therefore have obtained a forensic advantage that she would not normally have had by knowing the views of the Trust's causation expert before having to disclose her own evidence on that issue. The Trust lost the opportunity to strengthen or clarify its position on causation before disclosure.
(5) Both Defendants claim further prejudice in respect of costs. The Claimant was publicly funded in the first action and no part of the Defendants' costs of that litigation has yet been paid. There is uncertainty as to the nature and extent of the indemnity agreed with John Hodge, which has not been disclosed and the purpose of which was to protect the Claimant's interests so that she will incur no personal liability. The Claimant is legally aided again now and the Defendants face incurring further, irrecoverable costs.
(6) The merits of the Claimant's case, viewed broadly at this stage, are scanty and no expert evidence has been filed in support of her claim. The Defendants will be unable to recover their costs of successfully defending a weak claim since the Claimant is now publicly funded once again.
(7) It would be inequitable to permit this Claimant to proceed against the Defendants, given these difficulties together with those relied on under section 33(3), when the Claimant has a cast iron or unanswerable claim in negligence against John Hodge and will therefore suffer no material prejudice if this claim does not proceed.
"… the judge was entitled to take into account as a factor that, as he put it, there is likely to be a large shortfall in any costs the defendants may recover if they are successful in the action. That does not, of course, mean that the factor is to be regarded as overriding. It is still only a factor to be taken into account with all other relevant factors in deciding whether it is equitable to allow an action to proceed."
"And in Nash v. Eli Lilly & Co. [1993] 1 WLR 782, 804 Purchas LJ said:
'For the reasons given below we accept that in these cases, if it shown that the claim is a poor case lacking in merit, there may be significant and relevant prejudice to the defendants if the limitation provisions are disapplied.'
This is especially so where the plaintiff is impecunious, for example, if she is legally aided, since the defendant cannot recover the costs of a successful defence: see Lye v. Marks & Spencer Plc, The Times, 15 February 1988; Court of Appeal (Civil Division) transcript No. 97 of 1988."
"It would not be equitable to require the defendants to meet a claim which they would have the utmost difficulty in defending when the plaintiff will suffer only the slightest prejudice if she is required to pursue her remedy against her solicitors."
Conclusion