Martin v Kaisary & Anor

J U D G M E N T

1. LADY JUSTICE SMITH: This appeal raises the issue of when it is appropriate for the court to permit a party, pursuant to CPR part 19.5 subrules (2) and (3) to join or substitute a party to an existing action after the expiry of the primary limitation period upon which the added or substituted party would be entitled to rely. The claimant seeks to add the Royal Free Hospital Trust ("the Trust") as a defendant to the action he has already commenced against Mr Amir Kaisary. The judge, Simon J, refused permission to add the Trust as defendant and the claimant appeals that refusal with the leave of the Court of Appeal.

2. The claimant underwent an operation for the removal of his prostate gland on 2nd October 2000. The surgeon was Mr Kaisary, who is a consultant urologist employed by the Trust. However, Mr Kaisary also operates on private patients at the Royal Free Hospital and the claimant was such a patient.

3. The pleadings in the existing action allege that the operation lasted from about 11am until 2pm. It was uneventful. Immediately after the operation, the claimant was given an anticoagulant drug to guard against the well-recognised post-operative risk of venous thrombosis. He was taken to the recovery room and his condition was monitored. In due course, he was transferred back to his room and monitoring continued. At some time during the evening, Mr Kaisary went home but remained in telephone contact with the hospital. The nursing staff continued to make observations on the claimant and spoke to Mr Kaisary on at least one occasion. A nurse also spoke to an on call doctor in the hospital about the claimant but the claimant was not examined by any doctor during that evening.

4. At about 30 minutes after midnight on the following day, 3rd October 2000, the claimant suffered a cardiac arrest. He was given emergency treatment and his heart was restarted. It seemed that the cardiac arrest was due to internal post-operative bleeding and emergency surgery took place. According to the letters written by Mr Kaisary to the claimant's general practitioner, no obvious cause was found for the post-operative bleeding and it was attributed to the claimant's reaction to the anticoagulant drug he had been given. The claimant recovered and left hospital but it was found that he had suffered some permanent brain damage which appears to have been caused by oxygen deprivation during the cardiac arrest. The claimant has been unable to cope with the demands of his job and has been retired early as a result. He also suffers from depression and has sustained loss of amenity.

5. On 30th September 2003, two to three days before the primary limitation period expired, the claimant's solicitor began proceedings for damages against Mr Kaisary. The solicitor had not complied with the requirements of the pre-action protocol. Detailed particulars of claim were not served until January 2004. When served, allegations of negligence and breach of duty were made against Mr Kaisary personally, and against the medical and nursing staff at the hospital. It was alleged that Mr Kaisary was vicariously liable for the acts and omissions of the nursing and medical staff. The gist of the claimant's case was that Mr Kaisary and the staff had failed to heed the signs that the claimant was suffering from internal bleeding. It was said that the medical and nursing staff had not monitored the claimant's condition as regularly as they should have done, but that such observations as were recorded in the medical records showed the claimant's blood pressure was low, his pulse rate high and his central venous pressure low, and also that there was a marked disparity between the fluids being put into his body, by infusion, and the amounts of fluid which were being excreted. It was alleged that these signs should have made Mr Kaisary and/or the medical and nursing staff realise that the claimant might have internal bleeding. Mr Kaisary or some other doctor should have taken action before the claimant suffered cardiac arrest.

6. Mr Kaisary's solicitor asked for an extension of time for the service of the defence. This was granted and the defence was served on 21st July 2004. It denied liability and also denied that Mr Kaisary was responsible for the acts or omissions of the medical and nursing staff at the hospital. He was, it was said, liable only for his own actions. A few days later, the claimant applied to the court to amend the claim, pursuant to CPR 19.5, to add the Trust as second defendant. In September 2004, before that application had been heard, a further application was lodged in which the claimant sought to disapply section 11 of the Limitation Act 1980 in a new claim against the Trust as second defendant.

7. The claimant's solicitor filed a statement in support of the applications. She said that the claimant had made various allegations again Mr Kaisary but that Mr Kaisary was now questioning the care provided by the nursing and other staff at the hospital. That was not what the particulars of claim said; there it was the claimant who was questioning the care provided by the nursing and medical staff. Be that as it may, the solicitor said that it was difficult to tell from the invoices received from the Trust (relating to the claimant's stay in the hospital) whether or not the entries related to the payment for nursing services. She had asked for further information from the defendant but, until that information was to hand, it was necessary for her to protect the claimant's case by issuing proceedings against the Trust. In respect of the limitation issues, she said that it was not until the claimant had obtained expert evidence in March 2003 that he knew his condition was attributable to the acts or omissions of the medical and nursing staff at the hospital in respect of a failure to monitor the claimant's condition and treat him appropriately. In the alternative, the claimant invited the court to exercise its discretion under section 33 of the Limitation Act 1980.

8. Both applications came before Simon J in August 2004, apparently as urgent vacation business, which they were not. He dealt with the first limb of the application and ruled against the claimant. For want of time, he adjourned the second limb of the application to another date.

9. CPR Part 19 makes provision for changes in the parties to an action after the action has begun. Rule 19.5 makes provision for the addition or substitution of a party after the end of a relevant limitation period. This rule was made pursuant to the provisions of Section 35 of the Limitation Act 1980:

"(3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.

For the purposes of this subsection, a claim is an original set-off or an original counterclaim if it is a claim made by way of set-off or (as the case may be) by way of counterclaim by a party who has not previously made any claim in the action.

(4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.

(5) The conditions referred to in subsection (4) above are the following --

(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and

(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action."

10. So far as relevant, CPR 19.5 subrule (1) provides:

"This rule applies to a change of parties after the end of a period of limitation under --

(a) the Limitation Act 1980 . . . "

Subrule (2) provides:

"The court may add or substitute a party only if --

(a) the relevant limitation period was current when the proceedings were started; and

(b) the addition or substitution is necessary."

Subrule (3) provides, so far as is relevant:

"The addition or substitution of a party is necessary only if the court is satisfied that --

(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party;

(b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant."

Subrule (4) makes provision for the additional substitution of a party where the court has made a direction under the Limitation Act disapplying the primary limitation provisions. It is that provision which will be the subject of the second limb of the claimant's application in the event that this appeal fails.

11. Under the first limb of the claimant's application, as advanced before the judge, the relevant provisions were CPR Part 19.5 subrules (2) and (3)(b). The limitation period was current when the action was first started against Mr Kaisary, so the question for the judge was whether the claimant had shown that the addition of the Trust as a party was 'necessary' in the sense defined in subrule (3)(b). Had the claimant shown that the claim could not properly be carried on against Mr Kaisary unless the Trust was added as a defendant?

12. The judge dealt with this issue quite briefly. He said:

"For present purposes two points can be noted. First, the effect of the application of rules (2) and (3) is to deprive the added party of a limitation defence. This is because the joinder is deemed to take effect from the date the proceedings were begun. That suggests that the court should act cautiously. Secondly, the rules are made under the Limitation Act 1980 [he quoted section 35(3)(b)]. This reinforces the impression, in the words of subrule (3)(b), that the intention is not to facilitate a claim against the new party but to apply a more rigorous test. Is the court satisfied that the claim against the original party, D1, cannot possibly be carried on unless the new party, D2, is joined. Although Miss Gumble QC submitted that having the Trust witnesses at trial would assist the claim against the first defendant, it is clear that the real reasons for joining the Trust is because the claimant wishes to make an alternative claim against it for breach of duty. This does not, in my judgment, meet the test and that is sufficient to dispose of the first issue."

13. The appellant's notice of appeal challenged the judge's ruling. The notice was amended in October 2004 but only to make plain the contention that the judge was wrong to find that the joinder of the Trust was not necessary. It was contended that he should have held that the claim could not properly be carried on against Mr Kaisary unless the Trust was added. The grounds of appeal contained no reference to CPR part 19.5 subrule (3)(a), but only subrule (3)(b). However, the skeleton argument in support of the application for permission moved some way onto new ground. By this time, the judgment of this court in Parsons v George[2004] 1 WLR 3264 was available. That case concerned an application to substitute a party who had been wrongly named in the original claim. The decision turned upon the true ambit of CPR part 19.5 subrule (3)(a). At paragraph 5 of her skeleton argument in support of the application for permission to appeal, Miss Gumble QC said this:

"In effect, the claimant seeks permission to substitute the second defendant for the first defendant in respect of some of the allegations originally made against the first defendant. That is, those allegations in respect of the actions of the surgical team and the nurses. The claimant mistakenly believed that the first defendant was vicariously liable for the team, as well as liable for his own actions. The claimant requires to continue the action against the first defendant in respect of the allegations relating to him personally, but seeks to substitute the second defendant in respect of the allegations in which he had responsibility for the team."

At paragraph 7 she returned to this theme saying this:

"Effectively the claimant was mistaken in originally alleging that the first defendant was responsible for the surgical and nursing team and now seeks to join the second defendant on the basis that it is the proper defendant for these allegations. The claimant is asking the court to allow him to substitute the second defendant for the first defendant in respect of the allegations relating to the surgical and nursing team. Were it not for the fact that there are still allegations against the first defendant himself, the claimant would be asking to substitute a defendant under CPR 19.5 subrule (3)(a). Instead, the claimant requires the provisions of CPR 19.5 (3)(b) because there are still some allegations that relate to the first defendant."

14. As I have said, this represented something of a shift in the way in which the case was being put. Arden LJ granted permission to appeal because, as she observed, there was a paucity of Court of Appeal authority on CPR 19.5 subrule (3)(b). She added, as a rider, that, as the claimant had always contended that his post-operative care was negligent and a mistake had occurred in identifying those vicariously responsible for that care, it was possible that the issue might arise whether, on its true construction, CPR 19.5 subrule (3)(a) permitted 'substitution pro tanto'. As I understand it, Arden LJ was suggesting that it might be arguable that the Trust could be substituted as the defendant for part of the claim under subrule (3)(a). That would be on the basis that it was necessary to add the Trust as defendant because there had been a mistake in naming Mr Kaisary as the employer of the hospital staff.

15. The claimant gave no indication of wishing to pursue this line of argument. No further application was made to amend the grounds of appeal and no additional skeleton argument was filed. The Trust, for its part, instructed counsel to meet this appeal on the basis of the existing grounds. The respondent's skeleton argument understandably did not deal with any issue relating to the interpretation of subrule (3)(a).

16. At the commencement of the hearing, Miss Gumble dealt first with her argument under subrule (3)(b) that the claim against Mr Kaisary could not be properly carried on unless the Trust were to be added as a new party. We will return to that argument in due course. However, as the oral argument developed it became apparent that Miss Gumble was focussing very much on an argument under subrule (3)(a), seeking to persuade the court that that provision was wide enough to embrace the circumstances of this case in which, she said, the claimant had always intended to sue the employer of the hospital staff and had made a mistake as to the identity of the employer. She took the court to the various cases in which this court has considered subrule (3)(a) and its predecessor under the Rules of Supreme Court. As her submissions developed it became clear that the respondent was being asked to deal with a case that it had not been prepared to meet. In effect, a new argument was being pursued which, if successful, would require the exercise of a discretion on the basis of material which had, until then, barely been identified. The way in which the mistake had arisen would have had to be considered, as would the effect of failure to comply with the pre-action protocol.

17. The court invited Miss Gumble to consider whether she wished to apply to reamend the grounds of appeal and to have the appeal adjourned, at her client's expense, to allow for proper consideration of the issues. She declined this invitation and accordingly we were not prepared to deal with the application of subrule (3)(a) to the facts of this case. However, I think it right to say that, in my view, even if subrule (3)(a) were to be wide enough to permit the addition or substitution of a party on the basis of a mistake of this type, which I doubt, it seems to me unlikely that the court would, in the exercise of its discretion, allow joinder in order to correct a mistake that would probably not have been made if the pre-action protocol had been followed.

18. This appeal therefore falls to be decided upon the application of the facts to CPR part 19.5 subrules (2) and (3)(b). These provisions permit the addition or substitution of a party after the relevant limitation period has expired. They allow a party to be brought into an action but deprive him of an accrued limitation defence. That potential for injustice must be borne in mind when interpreting the rule itself and when exercising the discretion to allow addition or substitution.

19. Miss Gumble submitted that it was necessary to add the Trust as a defendant because otherwise the claim could not properly be carried on against Mr Kaisary. Only if both defendants were before the court and if the court were able to determine the responsibility of the Trust employees, would it be possible to determine Mr Kaisary's liability. It would not be enough, she submitted, that the claimant would be able to call witnesses as to what had happened at the hospital. The claimant needed to pursue his allegations that the staff had not monitored the claimant adequately and needed to cross-examine the witnesses rather than examine them in chief.

20. I cannot accept that submission. In my judgment, in order to determine Mr Kaisary's liability, the court will have to examine the actions of the Trust employees, but it will not be necessary to determine their responsibility. In order to determine Mr Kaisary's liability under the existing claim, the court will have to determine what observations were made and recorded and what they showed about the claimant's changing condition. It will have to decide what information was conveyed to Mr Kaisary. It may have to consider whether Mr Kaisary should have asked for further information. It will have to decide what Mr Kaisary should have made of the information given to him. But it will not have to decide whether the hospital staff were negligent.

21. There is no property in a witness and the evidence of the actions of the nursing or on-call doctors will be available to whichever party chooses to call it; indeed, it seems likely much of that evidence, in the form of the medical records, will be agreed. Even if it is necessary to call the witnesses to prove the medical records and to give further evidence of matters not recorded, such as the content of telephone conversations, the claimant will be able to call any member of the nursing or medical staff whose evidence is relevant to the observations and information on which Mr Kaisary acted or failed to act. Miss Gumble contended that it was impracticable for the claimant to extract the necessary information from the staff without being able to cross-examine them. She pointed out that allegations of negligence have been made against them in the pleadings. That is true and it may well be that the witnesses will be less willing to assist on that account. But it cannot be said that they cannot be called and compelled to give factual evidence about the observations they kept and the communications they had with each other and with Mr Kaisary. In my judgment, that is all that is needed from the witnesses employed by the Trust for the determination of the claim against Mr Kaisary. It follows that, in my judgment, the judge was right to refuse the application under CPR 19.5 subrules (2) and (3)(b).

22. It may well be that the claimant would be in a stronger position if he were able to allege negligence by the hospital staff as well as by Mr Kaisary. No doubt that is why he wishes to add the Trust as a second defendant. In my judgment, however, that can only be done if the court finds in favour of the claimant on the limitation issues. For those reasons, I would dismiss this appeal.

23. LORD JUSTICE WALL: I entirely agree, and have nothing else to add.

24. LORD JUSTICE BROOKE: I also agree. I only wish to add a few words in relation to the origin of the statutory power to make the rule which is at the centre of this appeal.

25. This appeal is concerned, and concerned only, with the proper interpretation of CPR 19.5 (3)(b) and its proper application to the facts of this case. The power to make that rule is to be found in Section 35 (4),(5)(b) and (6) of the Limitation Act 1980. Those provisions, which first saw the light of day in section 8 of the Limitation Amendment Act 1980, were introduced following the 21st report of The Law Reform Committee (Final Report on Limitation of Actions) (1977, Cmnd 6923). In paragraph 5.20 of its report, the Committee identified five examples of cases where, in its view, a new party should be capable of being added by way of amendment after a limitation period had expired:

"(1) Where the plantiff is beneficially entitled in equity and the person with the legal title is a necessary party to the action (for example, the equitable assignee of an action, who cannot sue without joining the legal assignor (Performing Right Society Ltd v London Theatre of Varieties Ltd[1924] AC 1); the cestui que trust who cannot enforce a right of action against a stranger to the trust

without joining the trustee (Harmer v Armstrong[1934] ch 65);

(2) Where the plaintiff is one of two or more persons jointly entitled to a right and all of them must be joined in order that the right may be enforced (for example, an action to enforce a right vested in trustees) (Luke v South Kensington Hotel Company[1879] 11 Ch D 121);

(3) Where the plaintiff is suing to enforce a public right and the action is one which ought to have been initiated by relator proceedings in the name of the Attorney General (Devonport Corporation v Tozer(1903) 1 Ch 759);

(4) Where the plaintiff is a shareholder suing to enforce a right vested in the company and the company is a necessary party to the action (Spokes v Grosvenor Hotel Company Limited[1897] 2 QB 124; cf Wallersteiner v Moir (No 2) [1975] QB 373);

(5) Where the plaintiff is suing to recover from persons jointly (but not also severally) liable to him and where his failure to join all of them would, as the law now stands, mean that the liability could not be enforced at all."

26. In paragraph 5.17 of the report these were categorised as cases where the existing formulation of the rule in RSC Order 20, Rule 5(3) (as to the power to correct mistakes) might cause injustice, because it did not cover situations where the plaintiff had made an error of law or procedure, the correction of which would not have caused anyone to be taken by surprise. The first four of these examples were cases where the plaintiff's mistake relates to his position as plaintiff. It was only in the last situation that the Committee felt that the Rules ought to permit the joinder of a new person as a defendant. It felt that in the case of joint obligations, a plaintiff who started proceedings against some, though not all, of the persons jointly liable had in fact enabled those on the "other side" to know that the proceedings were aimed at them.

27. Paragraph 5.22 of the report shows that the Committee was advised that primary legislation would be needed to effect these changes. They wished to restrict these extensions to the law to a minimum, and they could not be sure that they had thought of every possible situation. They decided, therefore (see paragraph 5.28 of the report) to recommend the creation of a new rule-making power for this purpose which would not confer on the court a wide discretion.

28. Their purpose was achieved three years later in what became section 35(3),(4),(5)(b) and (6)(b) of the Limitation Act 1980. New rules were made in RSC Order 15, Rules 6(5)a and 6(6). Rule 6(6) set out all the examples given by the Law Reform Committee in its report.

29. In due course, the rule-maker of the Civil Procedure Rules set out the equivalent provision in CPR 19.5:

"19.5(2) The court may add . . . or substitute a party only if --

(a) the relevant limitation period was current when the proceedings were starred; and

(b) the addition or substitution is necessary.

19.5(3) The addition or substitution of a party is necessary only if the court is satisfied that . . . .

(b) the claim cannot properly be carried on by or against the original party unless a new party is added or substituted as claimant or defendant."

The rule-maker decided to omit the examples contained in RSC, Order 15, Rule 6(6), but its new rule cannot be construed so as to go outside the rule-making powers conferred by section 35.

30. We are not concerned in this appeal with a more troublesome rule, CPR 19.5(3)(a), and we therefore did not hear any proper argument on its effect. The recent decisions of this court in Morgan Est (Scotland) Ltd v Hanson Concrete Products Ltd[2005] EWCA Civ 134 and Kessler v Warren Tibbets[2004] EWCA Civ 1551, coupled with the present decision (which has thrown light on some of the origins of section 35(3)(b)) shows that it would be desirable for this court to revisit the language of CPR 19.5(3)(a) in the context of the relevant rule-making powers at an early stage in an appropriate case.

31. Before the CPR were introduced the different components of CPR 19.5(3) appeared in three different places in the Rules of the Supreme Court. The source of CPR 19.5 (3)(a) was obviously RSC Order 20, Rule 5(3) (which derived its origins from the Rule Committee's general rule-making powers (see Mitchell v Harris Engineering Company Ltd[1967] 2 QB 703), supplemented by section 35(6)(a). In this judgment I have identified the source of CPR 19.3(b). The source of CPR 19.5(3)(c) was different in turn. In each case the rule-maker has now adopted the same governing rubric in CPR 19.5(2), which seems to be an abbreviated version of the language used in section 35(5)(b). It introduces a test of necessity which was not present in the RSC, Order 20, Rule 5.

32. It appears to me to be desirable that the Civil Procedure Rules Committee should re-examine the language of CPR 19.5(2) and (3) in the context of the available rule-making powers in cases concerned with the addition or substitution of parties after the end of a relevant limitation period.

33. In the light of this judgment, and earlier judgments of this court in recent years in relation to this rule, these issues may also need to be considered in the context of any revision of the general law on limitation which is currently awaiting consideration following the Law Commission's report on Limitation of Actions (2001) Law Com No 270 which, for perhaps understandable reasons, did not tackle the particular difficulties which have surfaced in recent years in relation to CPR 19.5.

34. The appeal is therefore dismissed.

Order: Appeal dismissed with costs (payment to be deferred until end of case)