Leeson v Marsden & Anor

Susan Leeson (the Claimant) seeks compensation for serious injuries sustained as a result of clinical negligence during the Defendants’ treatment of her in December 2000. She was admitted to the Bristol Royal Infirmary (BRI) in the late afternoon of 13^th December 2000 with an undiagnosed spinal epidural abscess, having already been admitted and then discharged earlier on that day.

Her case, essentially, is that she should have been referred to hospital before the 13^th by the First Defendant, Dr Marsden, who was at the time of these events a trainee GP at the Montpelier Health Centre. She contends, had she been so referred, that she would have made a full recovery. The First Defendant disputes both breach of duty and causation. As against the Second Defendants (the Trust), who are responsible for the BRI, her main allegation is that she should not have been discharged home earlier on the 13^th, but should have been admitted, diagnosed and treated appropriately, so that she would have made either a complete recovery or a better recovery than she in fact did. Breach of duty in that respect is admitted, but the Trust disputes causation. Her secondary allegation against the Trust, which is the subject of a bare denial on the pleadings, is that she should have been medically reviewed more quickly than she was when she first arrived at the BRI on the morning of the 13^th.

The Claimant, who is now aged 56, underwent surgery in the early hours of 14^th December and treatment in the Intensive Care Unit. She was in hospital for approximately four months. She has been left with residual spinal cord damage and a residual quadriparesis, with some loss of bladder and bowel function. Her current neurological status is likely to be permanent and the Defendants accept that there is a significant neurological deficit. This is therefore a substantial claim for personal injury damages.

The Claimant promptly sought legal advice about these events in January 2001. She issued proceedings within the three-year limitation period, on 24^th November 2003, following receipt of supportive expert medical opinion and detailed letters of claim sent to both Defendants, dated 27^th August 2002, under the clinical disputes pre-action protocol. However, her former solicitors failed to serve the claim form in time. It was served a day late on 25^th March 2004. The Defendants contended that the claims should be struck out and resisted the Claimant’s application for an extension of time. Ultimately, in January 2006, the Claimant failed on this issue before the Court of Appeal. She then instructed her current solicitors with a view to bringing a professional negligence claim against her former solicitors.

On 14^th June 2006, the House of Lords gave judgment in the case of Horton v Sadler and Another[2007] 1 AC 307. In this decision the House departed from its previous decision in Walkley v Precision Forgings Limited [1979] 1WLR 606, that where a Claimant issued proceedings within the ordinary limitation period he was not prejudiced by section 11 of the Limitation Act and could not, therefore, invoke section 33 to disapply its application to a second action brought after expiry of the time limit. After seeking leading counsel’s opinion the Claimant then issued this second claim against the Defendants, out of time, on 19^th December 2006. The claim and detailed Particulars of Claim were served on 25^th January 2007 and a deed of indemnity for costs has been agreed with the Claimant’s former solicitors. In response both Defendants pleaded limitation and abuse of process. Following Master Yoxall’s order that there should be a trial of preliminary issues a hearing took place before me to determine:

Master Yoxall gave directions for this hearing, including the exchange of witness statements. Dr. Marsden declined to serve a witness statement and has instead signed as true the Defence filed on her behalf and the contents of a document prepared by her counsel, Mr. Moon QC, providing further information requested by the Claimant. In the event the parties agreed that no oral evidence was necessary before me, save for Ewan Lockhart of the Claimant’s current solicitors, who was tendered to be cross-examined by the Defendants. I have, therefore, reached a conclusion on the preliminary issues on the basis of the documentary and written witness evidence before me, the oral evidence of Mr. Lockhart and the helpful submissions of leading counsel representing each of the parties.

In view of the matters to which I must have regard in determining these issues it is necessary to describe in some detail the nature of the substantive claim and of the Defendants’ responses to it, together with the procedural history, so that the issues and the parties submissions may be properly understood.

The Claimant had a long-standing history of chronic pain in her neck and left arm due to cervical spondylosis. On 27^th November 2000, however, she awoke with pain which was different both in nature and location from her long-standing symptoms, namely pain in the middle of her back radiating over her right shoulder blade and down her right arm. She was seen by her GP, Dr Bailward, who agreed to review her if the pain worsened. Later that night she was admitted to the Accident and Emergency department of the BRI where, as the Trust admits, she was noted to have left-sided chest pain in addition to worsening pain in her thoracic spine. She was also pyrexial and tachycardic and gave a history of flu-like symptoms. A diagnosis of urinary tract infection or chest infection was made and she was discharged home with antibiotics.

Her pain and flu-like symptoms did not improve and her case is that, by 28^th November, she had developed weakness in her right hand, and the hand and fingers had begun to curl inwards.

She requested a home visit on Saturday 2^nd December and was seen at home and examined by Dr Marsden. The Claimant’s account is that she told Dr Marsden about the pain radiating down her right arm, the weakness in her right hand and the fact that her right hand fingers had begun to curl inwards. She asked Dr Marsden whether this meant that she could have had a stroke. Dr Marsden decided to prescribe antibiotics and to review the Claimant the following day. At paragraph 11 of the Particulars of Claim it is pleaded, in summary, that there was no unitary diagnosis to explain her ongoing symptoms; that there were now signs of an acute neurological lesion, which could not be explained by a chest infection, a resolving pleurisy or pneumonia; and that her presentation was such as to demand either discussion with the doctor who was responsible for training Dr Marsden or with another, more experienced colleague from the surgery, or referral to hospital that day. If there had been referral the Claimant’s case on causation is that she would have been admitted and investigated; and that the epidural abscess would have been diagnosed, leading to appropriate treatment and a full recovery.

Whilst Dr. Marsden’s note of this visit, made subsequently on 4^th December, includes a reference to, “… loss of sensation and power in R arm” she disputes the Claimant’s account that she was told about her right hand fingers starting to curl, pleading at paragraph 7(ii) of her Defence:

“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.

Thus, at paragraphs 7(ii) and (iv) Dr Marsden pleads as follows:

“… 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.”

There is no dispute that Dr Marsden reviewed the Claimant at home on Sunday 3^rd December. In relation to the factual dispute, namely whether Dr Marsden examined her and whether the Claimant told her about continuing central back pain and no improvement in her right hand and fingers, Dr Marsden once again relies on her note, which records that the Claimant looked and felt better. It is denied that there was no improvement in the use of her right hand and that the right hand was still curled. The Claimant was to be reviewed on the following day.

On Monday 4^th December the Claimant saw Dr Marsden at the surgery, where it is admitted that the Claimant told her she was not feeling better and still had severe pain between her scapulae. In response to the Claimant’s account that she described continuing pain down her right arm and that her right hand was still weak, with the fingers curled in, Dr Marsden relies on her note “R. arm improving”. She pleads that it is “unlikely” that the Claimant complainedabout the fingers curling and, at paragraph 9(vi), that “the notes indicate that the symptoms in the right arm were improving and that there was no complaint of curling of the right hand”. Dr Marsden ordered further investigations, which she pleads were appropriate. The Claimant repeats her case on causation, in relation to Dr Marsden’s assessments on 3^rd and 4^th December, which is disputed.

In relation to 4^th December Dr Marsden also pleads, at paragraph 9, that she would probably have discussed the Claimant’s case with her trainer, Dr Stefan Cembrowicz, later on in the afternoon and that he did not suggest action other than that which she had already taken. It is clear from paragraphs 2.2 and 2.3 of the Further Information provided by Dr Marsden, dated 22^nd January 2008, that there are no notes of this discussion (and that no notes were ever taken), but Dr Cembrowicz was nevertheless contacted in relation to the claim and was able to set out his recollection of events on 5^th March 2003.

The Claimant attended hospital on 5^th December for the tests requested by Dr Marsden. Her account is that her condition gradually deteriorated over the next few days and, in particular, that the weakness in her right hand progressed so that she could no longer use a can opener.

On 11^th December the Claimant saw Dr Marsden again at the surgery. The Claimant alleges that she told her about her difficulties in using her right hand, showed her the curling fingers and asked again about the possibility of a stroke, but says that Dr Marsden did not examine her. Relying on her note Dr Marsden pleads, at paragraph 11(ii), that the Claimant told her that she was still suffering from pain between the shoulders and that she had a loss of sensation in her right arm. She also pleads that the chest x-ray report showed “chronic inflammatory changes” and that the Claimant had a raised plasma viscosity (which the Claimant pleads was indicative of inflammation, infection or malignancy) and an elevated white cell count. Dr Marsden pleads that:

“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.”

The Claimant’s case at paragraph 22, which is disputed, is that there were no longer any obvious symptoms and signs of a chest infection or pneumonia; there was evidence of systemic infection and of continuing illness, despite antibiotic therapy; and that Dr Marsden had made no diagnosis for the Claimant’s on-going symptoms and signs, so that she required referral to hospital. Dr Marsden did not see the Claimant again after 11^th December.

On 13^th December the Claimant’s account is that she awoke with pain on moving her legs and altered sensation at the top of both legs. She had continuing severe pain in her right arm and in the centre of her back, with weakness and now also numbness in her right hand. She called for an ambulance and arrived at hospital at 08.37 on the 13^th. It is not in dispute that she was admitted to the A and E department of the BRI at 08.41 and that, when triaged on admission, she was given a triage category of 4 (non urgent) and no assessment was made of her pain score.

It is also agreed that at 12.15 on the 13^th the Claimant was seen by Dr Patel, a senior house officer, who made a detailed note of his examination, set out at paragraph 27 of the Particulars of Claim. His impression was that there was nothing acute observed and he was unable to identify the cause of her symptoms. He prescribed analgesics and advised that her GP should follow her up; and it is agreed that she was discharged home at around 12.40pm. Dr Patel noted that the Claimant had referred to her bladder and bowel function as normal, but the Trust puts the Claimant to proof on this issue in paragraph 28 of their Defence.

On waking later on in the afternoon of the 13^th, the Claimant’s account is that she could not move, but managed to crawl to the telephone and call an ambulance. It is agreed that she was re-admitted to the A and E department as an emergency at 17.52 hours and what happened thereafter, as recorded in the medical records, is also agreed. By now the Claimant was unable to stand or to pass urine. Her right eye was droopy. She was reviewed by the A and E consultant, Dr Lloyd, who queried an acute spinal lesion and found a full bladder with overflow, brisk reflexes, clonus, power down to 1/5 in the legs and poor anal tone. She was catheterised and, at 21.30, an MRI scan was undertaken.

Following the MRI a diagnosis of an epidural and paravertebral abscess was made and the Claimant was transferred to Frenchay Hospital. At 00.35 on 14^th December she underwent surgery for right C7 hemilaminectomy and drainage of the abscess. It is unnecessary to describe the Claimant’s progress thereafter or the extent of her recovery. The nature and significance of her residual disability does not appear to be disputed, at least by the Trust. It is fully dealt with in the report of Mr. Gardner, dated 5^th December 2005, annexed to the Particulars of Claim.

At paragraph 17 of their Defence, the Trust admits, as was clear from their response to the letter of claim, that following the consultation with Dr Patel at 12.15 the Claimant should have been referred for review by a more senior doctor and that there was, in that respect, a breach of duty for which the Trust accepts liability. However, the Trust denies that this would have made any difference to the Claimant’s condition. At paragraphs 18 and 21 – 23 the following, positive case is pleaded:

“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 13^th 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 Claimant’s case on causation, set out in detail at paragraphs 33.1 to 33.8 of the Particulars of Claim, is that she would have made a better recovery than she did, the extent of such recovery being a matter for expert opinion.

The secondary allegation of breach of duty against the Trust, namely that the Claimant should not have been triaged as non-urgent and should have been medically reviewed within one to two hours of her arrival, has not been addressed by the Trust in their Defence, save by way of a general denial at paragraph 19. The Claimant’s case on causation is that, if she had been seen within one to two hours of admission and appropriately treated, she would have made a complete or near-complete recovery.

The Claimant was immediately concerned about what had happened to her and why. A note in the Nursing Records for 22^nd December 2000 refers to her expressing anger about her management and resulting paralysis and informing the nursing staff that her daughter was seeking legal advice. She instructed her former solicitors, John Hodge and Co, promptly on 11^th January 2001 and a public funding certificate was granted on 19^th February 2001.

John Hodge wrote both to the Montpelier Health Centre and to the United Bristol NHS Trust on 27^th March 2001 indicating that they were investigating a potential claim, describing the nature of it and seeking pre-action disclosure of all the relevant medical records. In their letter to the Centre the solicitors named Dr Marsden as the GP who had been attending to the Claimant between 27^th November and 13^th December. However, Dr Marsden left the Centre in either February or April 2001 (the documentation refers to both months) and it appears that, unknown to John Hodge, the correspondence from them about the Claimant’s complaints was not brought to her attention until 10^th January 2003, almost two years later. The Medical Protection Society, in their letter to John Hodge of 18^th February 2003, apologised for this and explained that due to “an administrative error” at the Centre, the correspondence had not been passed on to Dr Marsden or to her defence organisation.

Medical records were disclosed by both Defendants and correspondence relating to this and to requests for further disclosure continued during 2001. At the hearing before me Mr. Lockhart produced a helpful chronology of the various steps taken by John Hodge between January 2001 and August 2002, which was not in dispute. Medical experts in both GP and A & E practice were instructed and, by November 2001, John Hodge were in receipt of first reports on liability from both experts. These indicated that there was evidence of a breach of duty by both Defendants and John Hodge wrote to the Trust’s representatives, on 7^th November 2001, informing them of this and notifying them that a report on causation was now being obtained. John Hodge sent a letter of enquiry to this expert (a consultant neurosurgeon) on 19^th November 2001, followed by a detailed letter of instruction on 28^th January 2002. A report supportive of the Claimant’s case on causation was received from this expert on 27^th June 2002.

On 27^th August 2002 formal, detailed letters of claim were sent by John Hodge to both the Centre and the Trust, in accordance with the requirements of the pre-action protocol. In both letters John Hodge requested a response from the Defendants within three months, as required by the protocol. They also drew attention to the fact that the primary limitation period would expire in December 2003 and that protective proceedings would be issued when appropriate.

It is not in dispute that these letters complied with the protocol and set out details of the claim and of the allegations of negligence. There is no express reference in the factual summary to the Claimant’s complaint that her right hand fingers had begun to curl inwards, or that she had asked Dr Marsden about a possible stroke. There were, however, references there to the Claimant experiencing “numbness and pain in her right arm and hand”; to her condition not improving; to her complaint to Dr Marsden about the numbness and pain in her right arm and hand; and to her complaint on 2^nd December that her right arm was “painful and virtually useless”. Further, the fourth allegation of negligence in that letter referred to a failure generally on the 2^nd, 3^rd and 4^th December 2000 “… on finding loss of sensation and power in a curled hand in the presence of severe pain to refer for an orthopaedic/physician assessment that day or within 48 hours”. The fifth allegation made was that “on 11^th December 2000, given presenting signs of weakness, loss of sensation, and a curled hand, a differential diagnosis of a spinal lesion should have been considered and there was a failure to consider and/or act to arrange an urgent referral for orthopaedic assessment that day.”

The letter sent to the Trust contained the same factual summary. There was no reference to what is now pleaded as the secondary complaint, namely the failure of the triage nurse to assess the Claimant’s level of pain on admission and to arrange for urgent medical review within one to two hours. All the allegations of negligence referred to Dr Patel’s actions in discharging the Claimant home shortly after noon on 13^th December, the primary allegation against the Trust.

The Trust’s letter of response, admitting breach of duty in respect of the primary allegation, was eventually served on 1^st August 2003. So far as Dr Marsden is concerned, no response has ever been served. Chaser letters were sent by John Hodge to the Centre in November and December 2002, asking why they had heard nothing from Dr Marsden’s representatives. Due to the administrative error referred to above Dr Marsden first became aware of the claim on 10^th January 2003. In the Further Information, dated 22^nd January 2008 and signed by Dr Marsden, it is stated that she contacted her medical defence organisation (the MPS) by telephone on 13^th January 2003 and was asked to provide a report. She set out her recollection of events on about 22^nd January 2003. On 18^th February 2003 Mr. Munro (MPS) sought a statement from Dr Marsden, who subsequently signed a witness statement dealing with the Claimant’s complaints on 4^th May 2004. Dr Cembrowicz (Dr Marsden’s trainer) was also contacted by Mr. Munro in February 2003 and set out his recollection of events on 5^th March 2003.

Dr Marsden’s letter of response under the protocol was due by the end of November 2002. After she became aware of the claim Mr. Munro asked for a three-month extension in February and for further extensions in June and July 2003. John Hodge agreed to these extensions but, on 16^th September 2003, Mr. Munro wrote again to say that he was not yet in a position to provide a letter of response. Further chaser letters were sent by John Hodge on 12^th and 27^th November 2003. On 11^th December 2003 Mr. Munro replied, apologising for the lack of a response, and indicating that solicitors (Radcliffes Le Brasseur) had now been instructed.

Meanwhile, on 24^th November 2003, John Hodge issued the Claim Form within the primary limitation period. Service was therefore due, as is agreed, by 24^th March 2004.

On 9^th February 2004, John Hodge wrote to both Radcliffes and Bevan Ashford (for the Trust), informing them that protective proceedings had been issued and asking for their agreement to “a six-month extension in the time for service of these proceedings” to allow Radcliffes time to prepare a substantive letter of response under the protocol.

Bevan Ashford, by letter of 17^th February 2004, agreed to a three-month extension for service of “the proceedings” and indicated that they would sign an appropriate consent order to enable John Hodge to obtain the extension ex parte. Radcliffes, by letter of 24^th February 2004, agreed to a six-month extension of time only for service of the Particulars of Claim, medical reports and schedule of loss; and asked to see a draft consent order for approval.

It is unnecessary to set out here the various steps taken by John Hodge to apply, without notice, for an extension of time for service of the claim form; the response of Bristol County Court; and the procedural wrangle that then ensued. Suffice it to say that on 22^nd March 2004 (two days before the end of the four-month period from the date of issue of the Claim Form) John Hodge dictated letters, enclosing copies of the claim form, to both Radcliffes and Bevan Ashford. These were not, however, placed in the DX or post until the following day. They would not, therefore, be deemed to have been served until 25^th March, that is one day out of time: see CPR 6.7(1). Nor had John Hodge been notified that the solicitors for either Defendant were authorised to accept service of the claim form. In their letter of 30^th March 2004, Bevan Ashford took the point that the claim form had been served out of time and without authorisation for service being given.

The following is a summary of the steps then taken by the parties. On 8^th April 2004 District Judge Singleton made an order extending time for service of the claim form, which both Defendants applied to set aside. After a three-day hearing spread over five months the District Judge dismissed the Defendants’ applications on 26^th November 2004 and extended time for service. The Defendants then appealed and on 25^th February 2005 His Honour Judge Darlow allowed the appeals and struck out the claims. The Claimant then brought a second appeal to the Court of Appeal and permission to appeal was granted by Neuberger LJ on 14^th July 2005. The appeal was one of a number of conjoined appeals raising issues relating to service of claim forms, which were heard by the Court of Appeal in November 2005. On 25^th January 2006 the Court of Appeal gave judgment dismissing the Claimant’s appeal (Collier v Williams [2006] 1WLR 1945).

Giving the judgment of the Court Dyson LJ stated, at paragraph 128, that there was no good reason for the failure by John Hodge to serve the claim form by 24^th March; and at paragraphs 129 – 130 he said as follows:

“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.

The Claimant instructed her current solicitors on 19^th January 2006, in relation to a professional negligence claim against John Hodge. The full file of papers was sent by John Hodge to Mr. Lockhart at Davies and Partners on 6^th March and a public funding certificate, enabling the Claimant to be represented in these professional negligence proceedings, was issued in May 2006. Mr. Lockhart has considerable experience in professional, and in particular clinical, negligence litigation and has been a member of the Law Society Clinical Negligence Panel for some ten years.

Mr. Lockhart’s evidence, which was ultimately not challenged and which I accept, was as follows. Being aware that the Claimant would be pursuing a claim against John Hodge for loss of a chance to obtain compensation for clinical negligence against the Defendants, his usual practice, which he adopted in this case, was to contact the original Defendants to see if they were prepared to provide any helpful information about the merits of the Claimant’s original claim, in order to close off the anticipated defence from John Hodge, that her claim might not have succeeded.

He therefore wrote to both Radcliffes and Bevan Brittan (formerly Bevan Ashford) on 25^th May 2006 explaining this and asking if they would consider providing him with any independent medical evidence they had obtained, and/or stating whether they would have admitted causation (and in Dr Marsden’s case breach of duty) “had the claim not been struck out on the procedural technicality.” He also asked, if the claim against John Hodge were to succeed, whether they would apply to enforce the order for costs made against the Claimant following the strike-out litigation. If so, Mr. Lockhart would obtain the necessary indemnities from John Hodge.

On Thursday 29^th June 2006 Joe Wakeford of Bevan Brittan rang to speak to Mr. Lockhart, whose attendance note of that conversation was accepted as accurate. Mr. Wakeford now had instructions and he was able to tell Mr. Lockhart that he had a report that was “helpful to the Claimant’s claim”; and that their medical expert considered that the Claimant had a successful claim. He would provide a copy of that report to Mr. Lockhart. Costs were also discussed, Mr. Wakeford indicating that there would be a bill of costs in the region of £11,000, and Mr. Lockhart indicating that he would seek an indemnity. As there was a fair bit of work to be done on quantum Mr. Lockhart did not envisage putting full information to John Hodge until late autumn. At the time that this conversation took place I accept Mr. Lockhart’s evidence that the possibility of a second action against these Defendants had not entered his mind and that his intention was, if possible, to persuade John Hodge’s insurers as to the merits of the Claimant’s case on causation.

Mr. Wakeford wrote to Davies and Partners on the same day, 29^th June, enclosing copies of two reports from Mr. Hockley, consultant neurosurgeon, dated 26^th June 2003 (including his covering letter) and 10^th February 2004. The letter arrived on Friday 30^th June, but Mr. Lockhart did not see it until Monday 3^rd July because he was away at the annual AVMA Medico-Legal Conference held on 1/2 July. Whilst he was there a specialist QC gave a legal update lecture and Mr. Lockhart became aware, for the first time, of the recent decision of the House of Lords in Horton v Sadler [2007] 1 AC 307, handed down on 14^th June 2006, in which the House departed from its previous decision in Walkley v Precision Forgings Limited [1979] 1 WLR 606. Mr. Lockhart therefore decided to seek leading counsel’s opinion on whether this Claimant could now issue a second claim against the original Defendants for clinical negligence because, as he expressed it, “the matter was not clear to me”. Meanwhile he would continue to deal with quantum issues in the solicitors’ negligence action.

On Monday 3^rd July he returned to the office, opened Bevan Brittan’s letter and read Mr. Hockley’s reports. At this stage I accept that his intention was still to seek to use these reports to assist in the claim against John Hodge; and he was aware that this still might be necessary if leading counsel advised against the issue of a second claim against the Defendants.

In his report of 26^th June 2003, Mr. Hockley referred to a letter from Dr Lloyd, the A & E consultant at BRI, who expressed concern (with which Mr. Hockley agreed) about the medical management by the SHO on 13^th December 2000 in discharging the Claimant home without seeking more senior advice; and who also thought that “the delay in diagnosis may well have been critical in this particular case”. Dr Lloyd also questioned whether the GP could have acted sooner, given her note of altered sensation in the Claimant’s right arm on 11^th December; but Mr. Hockley observed that he was not an expert in General Practice and could not comment on any breach of duty by Dr Marsden.

In relation to causation Mr. Hockley’s opinion was that, if Dr Patel had called for a more experienced doctor at midday on 13^th December, “urgent investigation and surgical intervention most likely would have achieved a better functional outcome”. Later on he said this:

“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 13^th 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.”

Mr. Lockhart’s evidence was that he approached Mr. Hockley’s written opinions with a degree of circumspection. Whilst Mr. Hockley observed that the Claimant’s condition would or may have been “better” if she had been treated earlier, no details of timings or of the extent of any likely improvement were given. He considered that causation might still be a live issue and that it raised different issues in respect of each Defendant. In my judgment, and with some forensic experience to call upon in this field, he was wise to be cautious in this respect, in particular having regard to the positive case now pleaded at paragraphs 18 and 23 of the Trust’s Defence. It appears from the First Defendant’s Defence (paragraph 14) that no report on causation, condition and prognosis has yet been obtained by the First Defendant.

Following the receipt of favourable opinion from leading counsel on the Horton v Sadler issue, Mr. Lockhart reviewed the position. He then wrote letters before action to both Defendants’ solicitors on 17^th August 2006, informing them that he considered it was now open to the Claimant to re-issue her claim in negligence against them. He asked that all evidence relevant to the claim should be preserved. He asked for Dr Marsden now to provide a response to the letter of claim sent in August 2002. He invited the Trust to say what would have been the Claimant’s outcome, but for their admitted negligence, since “Mr. Hockley’s reports do not address this in specific terms”.

He also enclosed a copy of the letter he had written to John Hodge on the same date, requiring them to pay all the costs thrown away in the first set of proceedings; and stating that the Claimant required a full indemnity from them as to the costs of any re-issued proceedings against these Defendants, including the costs of any necessary application under section 33 Limitation Act 1980. An offer of mediation was made to both parties.

On 30^th August 2006, the Claimant’s CLS Funding Certificate was amended to include the bringing of proceedings against these Defendants. Bevan Brittan responded on 7^th September 2006 stating that, if proceedings were issued, they would apply to have them struck out, either under section 33 or as an abuse of process. After chasing letters were sent to Radcliffes they responded on 13^th November 2006 in similar terms.

The Claim Form in this action was issued against both Defendants on 19^th December 2006 and served, correctly, together with the Particulars of Claim and appendices on 25^th January 2007. On 27^th January 2007 a deed of indemnity for costs was agreed with Beachcroft LLP on behalf of John Hodge and a Deed of Indemnity has been executed. Although privilege for this has not been waived the unchallenged evidence of Frances Wright, partner with John Hodge, as appears from paragraphs 69 and 70 of her witness statement, is as follows:

“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.

The parties’ submissions centre, in relation to section 33 and abuse of process, on the House of Lords decision in Horton v Sadler and on two decisions of the Court of Appeal, namely, Richardson v Watson and Another [2006] EWCA Civ 1662, and Securum Finance Limited v Ashton and Another [2001] Ch. 291. It is therefore necessary to refer to these decisions in a little detail before dealing with the submissions.

In Horton the Claimant suffered injuries in a road traffic accident in April 1998, for which the uninsured First Defendant was liable. The MIB nominated insurance agents and, in October 1998, made an interim payment to the Claimant. Shortly before expiry of the three-year limitation period the Claimant’s solicitors issued proceedings against the First Defendant, but they failed to give the MIB the written notice required as a condition precedent to liability under the relevant agreement. On being joined as a party MIB denied liability, in reliance on this non-compliance with the notice condition, and they sought return of the interim payment. In September 2001 the Claimant began what were, in effect, duplicate proceedings against the First Defendant, out of time, but this time gave the requisite notice correctly to the MIB, who resisted liability on the ground that the second action was time-barred. The Claimant applied for an order disapplying the time limit, under section 33 of the 1980 Act.

On a trial of preliminary issues the judge held that the MIB was under no liability in the first action and directed repayment of the interim payment. That ruling was not the subject of appeal. With regard to the second action he considered himself bound by the previous decision of the House of Lords in Walkley v Precision Forgings, that where a Claimant issued proceedings within the ordinary limitation period he was not prejudiced by section 11 and could not, therefore, invoke section 33 to disapply its application to a second action brought after expiry of the time limit. Thus, although he would have exercised his discretion under section 33 in the Claimant’s favour, he was precluded from doing so. In the light of Walkley, the Court of Appeal dismissed the Claimant’s appeal without hearing argument. The House of Lords, departing from the decision in Walkley, allowed the Claimant’s appeal.

Lord Bingham reviewed the development of limitation in personal injuries actions generally and considered the problems relating to a Claimant’s date of knowledge under the 1963 Limitation Act. He referred to the Law Reform Committee’s recommendation in 1974, in its twentieth report, that “in a residual class of cases,” regarded as “exceptional”, the Court should have a discretion to allow an action brought out of time to proceed, if satisfied it would be equitable to do so. The Committee’s object was, he said, at paragraph 7:

“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.”

The Committee’s recommendations were given effect in the Limitation Act 1975 by inserting a new section 2A into the 1939 Act and a discretionary power to extend time was enacted by inserting a new section 2D. These were then substantially re-enacted as sections 11 and 33 of the 1980 Act. Section 33, headed “Discretionary exclusion of time limit for actions in respect of personal injuries or death,” provides in sub-sections (1) and (3) as amended, as follows:

“(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.”

In Finch v Francis (unreported) 21^st July 1977, Griffiths J had interpreted Section 2D as conferring the limited discretion which the Law Reform Committee had envisaged. Lord Bingham in Horton observed, however, at paragraph 9 that this interpretation was roundly rejected in Firman v Ellis [1978] QB 886, where the Court of Appeal gave judgment in four appeals under section 2D, holding that this section gave the Court a wide, general discretion and that judicial fetters should not be imposed on this new and valuable discretionary power. In all the four actions considered a writ had been issued within the three-year limitation period, but had lapsed, and a second action had been brought out of time in which an extension under section 2D was sought. It was not argued in any of them that the timely issue of the first writ precluded the exercise of the section 2D power, which exercise the Court of Appeal upheld.

Lord Bingham then referred to the decision and reasoning in Walkley and reviewed the later authorities, where it was considered. He pointed out, at paragraph 17, that the unanimous decision of the House in Thompson v Brown [1981] 1 WLR 744, was that, while the outcome of the Firman v Ellis appeals was wrong in the light of Walkley, the Court of Appeal had been right about the unfettered nature of the discretion conferred by section 2D.

He described as “plainly correct” at paragraphs 21 – 22 the analysis of counsel for the Appellant that:

“… 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.”

This, he held, could not be reconciled with the reasoning in Walkley, where it had been held that the Plaintiff, having issued a writ within the three-year period, could not be prejudiced by section 11. At paragraph 22 Lord Bingham continued:

“… 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.”

Further, Lord Bingham referred to the fine distinctions drawn by the Court of Appeal, in some of the cases relied on by the Appellant, as indicating the Court’s reluctance to apply Walkley and, in particular the distinction, acknowledged by Lord Diplock in Thompson to be anomalous:

“… 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.

He also agreed with the Appellant’s submissions that section 33 conferred a wide and unfettered discretion; and that it was inconsistent with that interpretation to constrain the exercise of that discretion by technical rules such as that laid down in Walkley, which subverted the intention of Parliament to be derived from the clear terms of the legislation.

In relation to the exercise of the section 33 discretion, Lord Bingham said this at paragraphs 32 – 33:

“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. ”

Finally, the House dismissed the MIB’s contention that it was an abuse of process to commence a second action seeking the same relief. Lord Bingham said as follows at paragraph 37:

“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.”

In this case Mr. Oppenheim QC, for the Claimant, submits that the real issue in this case is section 33 and the exercise of my discretion. Before the decision in Horton this Claimant would have been bound at all times by Walkley and would not have been able to ask the Court to exercise the section 33 discretion in her favour in a second claim brought against these Defendants. Following Horton, however, this Claimant was entitled to bring a second action against these Defendants, out of time, and to ask the Court to exercise its discretion to disapply the limitation period. Section 33 gives the Court a wide and unfettered discretion which should not be constrained by separate arguments about abuse of process, which serve only to create further anomalies and to strike at the heart of the clear reasoning both of the House of Lords in Horton and, more recently, of the Court of Appeal in Richardson v Watson and Another, where the facts were very similar.

Mr. Richardson, the Appellant’s husband, was killed in a motor accident on 24^th December 2000 when his car collided with another car driven by the uninsured Defendant, Miss Watson. The Appellant brought a claim against her within the primary limitation period but, as in Horton, failed to give timely notice to the MIB, who disputed liability. The Appellant then discontinued that claim and commenced a fresh action against Miss Watson, out of time, but giving proper notice to the MIB. The judge in the Middlesbrough County Court struck out this second action as an abuse of the process. He also held (before Horton) that he would have had no power to extend time under section 33 by reason of Walkley. If he had had such power he would not have exercised it in the Appellant’s favour. Following the decision in Horton the Appellant sought to reverse all aspects of the judge’s decision in the Court of Appeal and succeeded, her second claim being allowed to proceed under section 33.

In relation to abuse of process the judge below had acceded to the MIB’s submission that the second action should be struck out, holding as follows:

“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.”

In the Court of Appeal the MIB accepted that it had, in the past, been fairly common for a Claimant, who had failed to comply with the MIB notice requirements, to discontinue an action and to start again; and that they had taken no objection to this when the second action had been commenced within the limitation period. It was not suggested that it was of itself an abuse of the process to discontinue an action and commence a new one in such circumstances.

At paragraphs 24 and 25 Lord Phillips LCJ, giving the judgment of the Court, said as follows:

“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. ”

Mr. Oppenheim places considerable reliance on this decision, submitting that this Claimant’s claim stands or falls on the section 33 discretion; that there can be no objection in principle to her commencing a fresh action on the facts of this case; that all the grounds relied on by the Defendants, and the extent to which they claim to have suffered prejudice as a result, fall to be considered under section 33 as matters for the Court to have regard to in the exercise of its unfettered discretion; and that her claim should not be struck out as an abuse of the process.

However, the primary contention of Mr. Moon QC, for Dr Marsden, whose submissions were adopted by Mr. Porter QC, for the Trust, is that, notwithstanding the decisions in Horton and Richardson, the bringing of a second claim by this Claimant, in the particular circumstances of this case, constituted an abuse of process; that the claim should therefore be struck out; and that the Claimant’s remedy lies against her former solicitors. It is common ground that the burden of proving that there is such abuse falls on the Defendants. The Defendants contend that the abuse of process issue should be resolved first since, if it is successful, the section 33 issue does not arise.

Mr. Moon’s main submission is that this second claim is indistinguishable in substance from the Claimant’s first claim, which was struck out only after time-consuming and costly, contested hearings and dismissal by the Court of Appeal of her appeal, which all took place over a period of some two years. The Claimant’s first claim had therefore taken up substantial Court resources before it was eventually struck out, therefore being disposed of before the second claim had been commenced. He submits that this makes it a very different case from Horton and Richardson, where it was not suggested that substantial Court resources had been used in litigating the first claim before it was eventually struck out; and that the commencement of a second claim in this case constitutes an abuse of process.

Mr. Moon relies, in support of this submission, on a separate line of authority, namely the Court of Appeal’s decision in Securum Finance Ltd. v Ashtonand Another [2001] Ch 291. This authority was not cited in Horton or Richardson because the previous use of Court resources did not arise. In Horton the first action was dealt with at the same time as the second action; and the House of Lords said only that it was an abuse of process to maintain both actions simultaneously, which is a different point. In Richardson the first action was discontinued by the Claimant. Securum is of general application, however, and applies in this case to defeat the second claim.

The facts in Securum were that a bank commenced proceedings against a husband and wife in 1989 for the repayment of a loan, the couple having granted to the bank a legal charge over their property. In 1997 the proceedings were struck out for inordinate and inexcusable delay. In 1998 the Claimant, as the bank’s assignee, brought a second claim against the Defendant guarantors, still within the relevant 12 year limitation period, seeking to enforce the bank’s rights to payment under the charge and to enforce its security by orders for possession and sale of the mortgaged property. The Defendants argued that the second claim involved re-litigating the same issues raised in the first, and applied to strike it out as an abuse of process. The judge at first instance dismissed the application, but the Court of Appeal allowed the assignee’s appeal.

Chadwick LJ, with whom Rattee J. agreed, identified at paragraph 18 the real question as being “whether it is an abuse of process to seek to litigate, in subsequent proceedings, issues which have been raised (but not adjudicated upon) in earlier proceedings which have themselves been struck out.” The judge below, applying the reasoning of the House of Lords in Birkett v James [1978] AC 297, answered that question in the negative.

Chadwick LJ referred to Birkett and to the case of ArbuthnotLatham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426, in which the Court of Appeal reminded itself of the Birkett principles. At paragraph 28 he said that the Court in Arbuthnot had pointed out that the reason why the question whether the limitation period had expired was of such significance was that, in the absence of some conduct which meant that a second action could be stayed, it would not benefit the Defendant to have the first action struck out since this would only result in further proceedings, which would inevitably cause more expense and delay. The Court observed that the fact that the limitation period had not expired was of less significance in a case where the proceedings which were being struck out constituted an abuse of process. Referring to the new Civil Procedure Rules and the change of culture that had ensued the Court had said as follows:

“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.”

At paragraph 31, Chadwick LJ said this:

“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.”

After reviewing the facts Chadwick LJ concluded at paragraph 52 that the second claim for payment should be struck out, holding that it was, in substance, indistinguishable from the claim for payment made in the first action. It was an abuse of process because it was a misuse of the Court’s limited resources. Resources which could be used for the resolution of disputes between other parties would (if the second action proceeded) have to be used to allow the bank a second bite at the cherry. This was held to be an unnecessary and wasteful use of those resources. The bank ought to have made proper use of the opportunity provided by the first action to resolve its dispute in relation to the claim for payment. The separate claim to enforce the security under the legal charge (not made in the first action) was, however, permitted to continue.

Relying on this decision Mr. Moon submits that, in light of the comments of the Court of Appeal in dismissing this Claimant’s appeal (see Collier at paragraphs 129 – 130), the striking out of her first claim means that she must show a “special reason” to justify a second claim. This she cannot do given the circumstances in which her first claim was struck out. The significant judicial resources used up in dealing with the strike out issue were all entirely avoidable if the Claimant’s solicitor had served the claim form in time.

In his oral submissions Mr. Moon sought to distance himself still further from the decisions in Horton and Richardson. He emphasised first the ratio of Horton as being the departure from the Walkleyprinciple, namely, that where a Claimant brought his first action within the normal limitation period, any prejudice he had suffered was as a result of his own inaction and not by the operation of the Limitation Act. The House did not consider any argument concerning the previous use of Court resources, either factually or as a matter of law, and the case does not therefore, as Mr. Oppenheim suggests, deliver the fatal blow to the Defendants’ arguments on abuse of process. The same point is made in respect of the case of Richardson. The Defendants cannot therefore be said to be perpetuating anomalies of the kind which are to be avoided in this area of the law.

By contrast Securum is of general application. Mr. Moon derives support in this respect from the editors of the 2007 White Book who, in the notes to CPR 3.4 (Vol 1, page 104), treat Securum as raising a principle of general application to all actions where there has been previous, substantial use of Court resources, and as not confined to cases where the second claim is issued within the limitation period. The principle therefore applies to all personal injury claims. Mr. Porter submitted that, if Mr. Oppenheim’s submissions were correct, personal injury claimants would be entitled to the benefit of the section 33 discretion in such circumstances, whereas other litigants would not. There is, he suggests, no justification for personal injury claimants escaping the consequences that other claimants must endure, where they have previously expended precious Court resources in litigating the first claim.

Secondly, Mr. Moon submits that Horton and Richardson involved very different facts. The solicitors’ error in those cases could properly be described as “technical”. The Court referred in Richardson to the frequency in practice of the failure to give timely notice to the MIB, and to the fact that such failures are frequently waived. The present case, however, involved a breach of the Court rules and is therefore to be distinguished on its facts. Defendants rarely waive a failure to serve the claim form in time but, whether or not the Court’s rules may by waived by agreement, breach of the rule in this case was not a technical error, as Mr. Oppenheim seeks to categorise it. In Collier Dyson LJ criticised the District Judge’s reference in this case to the solicitor’s “technical error”, observing at paragraph 33 that in a sense all rules may be said to be technical. The Court rules are there to be obeyed and Mr. Moon contends that the facts of this case therefore require a different approach.

In answer to a question from me as to what the Defendants were contending that this Claimant ought to have done, Mr. Moon submitted that she should have abandoned her first claim and issued a fresh claim in March 2004, as soon as she was aware of her solicitor’s error, rather than seek through litigation to persuade the appellate courts to extend time for service of the claim form. In this case he submits that there was a misuse of Court resources, although it is not necessary to show actual misuse in order for the Securum principle to bite. Alternatively, Mr. Moon submits that the Claimant should have issued a fresh claim in February 2005, once Judge Darlow had allowed the Defendant’s appeal and struck out her claim. Her conduct in acting as she did in this case does not justify or constitute a “special reason” for issuing this second claim.

Mr. Porter submitted that in March 2004 the Claimant should have elected whether to pursue the extension of time point through the courts or to start again with a fresh claim. Alternatively, she could have used Court resources more efficiently by running both claims simultaneously, as occurred in Richardson, that is both issuing a fresh claim and pursuing the extension of time point. What was impermissible, he submits, was to commence this fresh action sequentially, as a second bite of the cherry, after her first claim was struck out and her appeal dismissed.

Finally, in his oral submissions, although not in his skeleton argument, Mr. Moon raised a point relating to the correct construction of section 33 of the Limitation Act, which he said supported his submission that I should deal with the abuse of process argument as a separate and free standing issue.

He submits that the requirement under section 33(3) for the Court to have regard to “all the circumstances of the case”, means that by reference to the overarching principle contained in section 33(1), all those circumstances can relate only to “the plaintiff” or “any person whom they represent” or “the defendant” or “any person whom they represent”. Since the ultimate question for the Court under section 33(1) is whether 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 sub-section would prejudice the defendant or any person whom he represents”, the circumstances to which the Court can have regard under sub-section (3) cannot relate to any third party or to the use of Court resources and the considerations identified in Securum. These considerations, says Mr. Moon, raise issues of public interest and the proper deployment of Court resources can play no part of the Court’s consideration under section 33. It must therefore be considered as relevant only to the argument on the abuse of process, which the Court should therefore consider separately.

In response to a question from me Mr. Moon accepted however that, as is made clear at paragraphs 34 and 35 of Chadwick LJ’s judgment in Securum, it is a matter for the discretion of the Court in this case whether a second claim, which seeks to re-litigate issues raised in the first claim, should be struck out as an abuse. Mr. Moon tentatively suggested that this discretion was a more fettered or limited discretion than that which arises under section 33. He did not however develop this submission and he accepted that it was a matter for my discretion, although making it clear that he did so only for the purpose of his submissions on the facts of this case.

Mr. Moon’s acceptance, that the question whether I should strike out this second claim as an abuse is a matter for my discretion, leads in my view, if the Defendant’s submissions are correct, to a wholly undesirable situation in which the Court is being called upon to carry out two entirely separate exercises of discretion in the same case, and on the same facts. I agree with Mr. Oppenheim that it would be strange indeed if the Court first had to weigh, separately, whether the second claim involves an appropriate use of Court resources and whether what has occurred amounts to an abuse, quite apart from considering all the other factors in the case, which otherwise fall properly to be considered under section 33.

Of course, if the legislation requires such an approach the Court must adopt it, but Mr. Moon’s construction point is, in my view, unarguable. The requirement in section 33(3), to have regard in deciding the ultimate question in sub-section (1), to “all the circumstances of the case” means exactly what it says. The Court will have regard under section 33 to all the relevant circumstances of the case, the list of which must include those matters specified in sub-section (3), in deciding whether it would be equitable to allow the action to proceed. There is no merit, in my view, in the restriction which Mr. Moon seeks to place upon the clear words of the statute.

The Defendants do not submit, in this case, that the mere issuing of a second claim was itself an abuse. Their argument is based entirely on the Securum principle. This requires the Court to consider whether the second claim is an appropriate use of the Court’s resources in circumstances where she has already had a share of those resources in the first claim and where her right to bring a second claim must be weighed in the balance with the rights of other litigants to use those resources. There is, in my view, nothing to prevent the Court having regard to these public interest considerations under section 33 which, as was said in Firman and re-emphasised in Horton, gives the Court the widest discretion in deciding whether to allow a claim to proceed, upon which further judicial fetters should not be imposed.

I do not accept Mr. Porter’s submission that this will necessarily give personal injury Claimants an unjustified advantage. Firstly, there may be cases, as Mr. Oppenheim accepted, where, for example, a personal injury Claimant’s deliberate misconduct can be said to be such as to amount to an abuse of the process, meriting a decision to strike out the claim. This, however, is not such a case. Secondly, even under section 33 a Court could decide in an appropriate case, that it would not be equitable in all the circumstances to allow that claim to proceed, even if the Court considered that a fair trial was still possible. This might be, for example, where the first claim had been struck out on grounds of the Claimant’s inordinate and inexcusable delay and the Claimant then issued a second, identical claim outside the limitation period.

In any event as Mr. Oppenheim pointed out Parliament has decided, through section 33, that the Court should have an unfettered discretion, subject only to considering those matters spelt out in sub-section (3), in deciding whether to allow a personal injury claim to proceed, notwithstanding the fact that it has been brought out of time. Section 33 itself therefore provides the means by which the Court protects itself from abuse arising from such claims. The Defendants acknowledge that, even if they succeeded in striking out this claim as an abuse, a further, professional negligence claim against her previous solicitors, in which the Claimant will be allocated a further share of Court resources, will follow. The real question in this case is whether the Claimant should be permitted to continue with this claim against these Defendants. That question should be determined, in my judgment, under section 33 and not as a separate question relating to abuse of process.

I also have regard to the words of Lloyd LJ and the Master of the Rolls in the recent case of Stuart v Goldberg and Another [2008] EWCA Civ 2, when considering a case of alleged abuse of the kind dealt with in Johnson v Gore Wood [2002] 2 AC 1. At paragraph 65 the Court said that “a party is not lightly to be shut out from bringing before the Court a genuine cause of action” ; that the claim, “must be clearly shown to be an abuse before it can be struck out” (Lloyd LJ); and at paragraph 79, per Sir Anthony Clarke MR, that:

“… 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.”

I accept, as Mr. Moon submitted, that abuse of the Securum kind was not raised in this case, but these passages emphasise the general need for abuse, whatever form it is alleged to take, to be clearly shown by the Defendants before the Court will prevent a Claimant from pursuing a genuine claim before the Court.

Mr. Oppenheim also drew my attention to the case of Adams v Ali [2006] 1 WLR 1330, in which the Claimant was injured in a road traffic accident for which the Defendant’s insurers did not dispute liability. Her solicitor issued her claim in the County Court one week out of time. The Defendant chose not to take the limitation point, but the Claimant’s solicitor then compounded his breach of duty by failing to serve the Claim Form and Particulars of Claim within four months or at all. The District Judge struck out the claim and the Claimant’s solicitors then issued a second claim out of the High Court approximately 13 months out of time. The question was whether the Court had the discretion to disapply the limitation period pursuant to section 33, or whether the Walkley principle precluded any exercise of that discretion.

The judge held that there was no discretion to disapply the limitation period under section 33, but the Court of Appeal allowed the Claimant’s appeal. The Court held that the Walkley rule did not extend to a situation where proceedings were originally commenced after the expiry of the time limit; and that there was a discretion to disapply the limitation period under section 33 which, on balance, the Court exercised in the Claimant’s favour.

At paragraph 39 Ward LJ, with whom Arden and Dyson LJJ agreed, said as follows:

“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.”

Mr. Oppenheim points out that, whilst the first claim had not involved the significant depletion of Court resources, no-one raised abuse of process in this case. The Court was clearly of the view, notwithstanding the seriousness of the solicitor’s errors, that the matter fell to be decided under section 33, and that the courts should not encourage what Mr. Oppenheim termed a game of “snap” between insurers.

In Firman v. Ellis, in three of the four conjoined cases, solicitors had “by the merest slip” failed to serve or renew the writs issued within the time permitted by the rules then in force. At page 905G to 906B Lord Denning said:

“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.

The case of Firman was cited with approval in Horton. There can be little doubt, in my view, that the House would have been well aware of the possibility of similar facts, involving a second bite at the cherry, arising for consideration in the future under section 33, following their departure from Walkley. Nowhere was it suggested or contemplated that such circumstances could give rise to an application for the second claim to be struck out as an abuse of process, without the Court needing to consider all the circumstances of the case under section 33. It seems to me that, to require the Court in this case to exercise a wholly separate discretion in relation to a free-standing abuse argument, based solely on the grounds of previous deployment of Court resources, would place an unwarranted fetter on the Court’s discretion under section 33 and create a further anomaly in an area of the law where such anomalies should be avoided.

There is, in my view, no relevant distinction to be drawn on the facts between the failure to notify the MIB in time, as in Horton and Richardson, and the failure to serve the claim form in time in the present case. The Defendants are not suggesting that the mere bringing of the second claim amounts to an abuse. In relying on the previous deployment of Court resources to invoke the abuse argument this seems to me to amount to a distinction without a difference.

Nor do I find that Securum Finance compels me to arrive at a different conclusion. In the context of a personal injury claim involving alleged clinical negligence, that case in my judgment is not authority for the general proposition that, whenever there is a breach of the rules involving use of Court resources, the Court should consider striking out a subsequent claim, brought outside the limitation period, as an abuse of the process rather than consider, in all the circumstances, whether to allow it to proceed under section 33.

Securum, as it seems to me, was concerned with a specific issue arising out of the Birkett v James principle, that inordinate delay in the first action does not by itself justify striking out a second claim brought still within the relevant limitation period. On the facts there was found to have been a wholesale disregard of the rules by the Claimant, resulting in inordinate and inexcusable delay and therefore in the inappropriate use of the Court’s resources in the first place, resulting in the claim being struck out. The Court’s ability to police its procedural rules would be seriously undermined if such a Claimant could merely issue a fresh claim within the limitation period and avoid any sanction for the earlier breach.

The present case, however, arises in very different circumstances. It is not correct to say, as is pleaded by the Trust at paragraph 2 of their Defence, that the second claim “has been litigated previously by the Claimant”. Clearly, although both Defendants were well aware of the claim, no substantive step had ever been taken in the litigation. This is not a case where the Claimant unreasonably delayed and is now trying to re-litigate a claim already unsuccessfully advanced. Nor can it be said that the claim is one which is bound to fail. Rather the Claimant has had no effective opportunity to bring this claim previously because of her solicitors’ failure to serve the claim form in time.

Nor can the Claimant be said to have “misused” the Court’s resources in connection with her first claim. The Defendants elected to take the point re service of the claim form, as they were entitled to. Mr. Oppenheim accepted that the solicitors’ error was serious. It was a technical error only in the sense that the Defendants did not need to take the point but did so because they saw the possibility of a windfall exit from the case on the authorities as they then stood, notwithstanding the fact that they knew about the claim and had indicated in correspondence that they would be willing to extend time for service of the proceedings.

The Defendants then lost the argument on extension of time before the District Judge. Although they won their appeal before Judge Darlow, Neuberger LJ granted the Claimant permission to appeal. The issues raised could not therefore be said to have had no real prospect of success.

It is, in my view, wholly unrealistic to suggest, as the Defendants do, that this Claimant ought to have abandoned the first claim and issued a fresh one out of time in March 2004, once the error was clear and the point had been taken by the Defendants. Between that date and the decision in Horton in June 2006, such a claim would have been bound to fail due to Walkley; and the Claimant’s representatives would have advised her that there were no reasonable prospects of successfully issuing and pursuing a second claim. Even if the Defendants had accepted this course and not taken the point, which in my view is unlikely, this Claimant was publicly funded. It seems to me fanciful to suggest that the Legal Services Commission would have been prepared to fund a second claim, for which there could not be said to be any reasonable prospects of success at that time.

The suggestion made by Mr. Porter that the two claims should have been run concurrently would fly in the face of Horton in which, at paragraph 37, Lord Bingham agreed that it would be an abuse of process to bring a second action against the same Defendants in respect of the same subject matter whilst the first action was still extant. The further suggestion that the Claimant should have issued a fresh claim, after Judge Darlow struck out the first, would have required the Claimant then to conclude, as it seems to me, that she had better prospects of success in seeking to persuade the House of Lords to depart from Walkley, than in persuading the Court of Appeal to extend time for service. In my view, the Claimant and her solicitors cannot be said to have acted unreasonably or to have misused Court resources in deciding to pursue the latter course, in particular once permission to appeal had been granted.

Having regard to all these matters I find that the Defendants have not discharged the burden upon them of showing that the issuing of this second claim amounts to an abuse of the process and should be struck out. All the matters raised fall to be considered under section 33.

Mr. Porter, for the Second Defendant, raised three further points in support of both abuse of process and prejudice under section 33, as follows. Firstly, the Defendant disclosed Mr. Hockley’s reports to the Claimant in good faith and when both parties understood that they were to be used in the professional negligence claim against the Claimant’s previous solicitors. These reports were privileged in the first action and, Mr. Porter submits, are on the face of it favourable to the Claimant. The Claimant has thus obtained a forensic advantage and the Defendant has lost the opportunity it would have had to strengthen its position on causation before disclosure. Secondly, the secondary allegation of negligence made by the Claimant has been made for the first time in this second claim and difficulties in securing the cooperation of the triage nurse have evidentially prejudiced the Defendants. Thirdly, whilst the Defendant has the benefit of an order for costs in its favour against the publicly funded Claimant in respect of the first claim, the order is not to be enforced without permission of the Court. No payment in respect of such costs has been made and the terms of the indemnity are unclear. The Claimant is publicly funded again now and the Defendant therefore faces further irrecoverable costs and is thereby prejudiced.

Having heard the evidence of Mr. Lockhart, which the Defendants did not seriously challenge, I am entirely satisfied that there was no impropriety at any stage on the part of the Claimant’s solicitors and no conduct such as could give rise to an application to strike this claim out as an abuse of process. Mr. Porter effectively conceded this to be the case. All these matters fall to be considered, in my view, under section 33 of the Limitation Act, to which issue I now turn.

The correct interpretation of section 33 has been the subject of much debate over the years and this case is no exception, there still being disagreement as to the reach and effect of its provisions, as appears below.

It is firstly common ground, pursuant to section 33(1), that the fundamental question is whether I consider that it would be equitable to allow this action to proceed, having regard to the degree to which (a) the provisions of section 11 prejudice the Claimant; and (b) a decision to allow the claim to proceed would prejudice each of these Defendants. Each of the Defendants is to be considered separately, in relation to the section 33 discretion, although many of the grounds relied upon are common to both.

It is also common ground, pursuant to section 33(3), that in arriving at my decision under section 33(1), I must have regard to all the circumstances of the case and, in particular, to each of the matters listed in sub-section (3). The question is not determined, however, simply by assessing comparative scales of hardship. The overall question is one of equity, namely whether it would be equitable to disapply the limitation provisions having regard to the balance of potential prejudice in all the circumstances of the case.

The starting point in this case is that the Claimant’s second claim, issued on 19^th December 2006, is statute-barred. The Claimant’s date of knowledge for the purposes of sections 11 and 14 of the Act is agreed to be at or around 22^nd December 2000, when a note in the nursing records refers to the Claimant informing the nursing staff that her daughter was seeking legal advice about her medical management.

The burden of showing that, in the particular circumstances of the case, it would be equitable to disapply the limitation provisions lies upon the Claimant. Subject to that, the Court’s discretion to make or refuse an order is unfettered. So held the Court of Appeal in Firman v Ellis, confirmed as correct by the House of Lords in Thompson v Brown and again more recently in Horton.

It has most recently been reaffirmed by the House of Lords in the group of historic sexual assault appeals, A v Hoare [2008] UKHL 6, in which the House departed from its earlier decision in Stubbings v Webb [1993] AC 498, that section 11 does not apply to acts of deliberate assault; and gave guidance as to the considerations which apply when a Court is called upon to exercise the section 33 discretion in such cases. In the context of historic abuse allegations and delay, Lord Hoffmann, Baroness Hale and Lord Brown all emphasised the unfettered nature of the discretion under section 33, and the need for the judge to look at the matter broadly and consider whether or not it will be possible for defendants to investigate allegations and whether a fair trial will still be possible; or, as Lord Brown expressed it, whether there is “a reasonable prospect of a fair trial”. As Baroness Hale observed: “a fair trial can be possible long after the event and sometimes the law has no choice …. Much will depend upon the circumstances of the particular case.”

In relation to the nature of the burden of proof on a claimant Mr. Moon relies on KR and Others v Bryn Alyn Community (Holdings) Ltd. and Royal and Sun Alliance Plc [2003] Lloyd’s LR 175 and on a passage in the judgment of Auld LJ, giving the judgment of the Court in which, at paragraph 74(ii) he said:

“(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”.

In my judgment, however, I agree with Mr. Oppenheim that this particular passage in Bryn Alyn no longer sits happily with the subsequent House of Lords decisions in Horton and Hoare as to the approach now to be adopted in exercising the wholly unfettered discretion under this section. Whilst section 33 obviously provides an exception to the general rule, that does not mean that the exercise of the discretion in a claimant’s favour is to be viewed as an “exceptional indulgence” and it is, with respect, unhelpful now to describe it in such terms. The nature of the burden upon the Claimant will depend upon the strength or the weakness of the evidence available.

The first factor to have regard to under (a) is the length of and the reasons for the delay on the part of the Claimant. It is not in dispute that the delay referred to in this sub-paragraph is delay which has occurred outside the limitation period and therefore, in this case, after December 2003. The delay referred to in (a) is the same delay as in paragraph (b) and therefore means delay subsequent to the expiry of the primary limitation period (see Donovan v Gwentoys Ltd HL [1990] 1 WLR 472 at 478G).

However, the Defendants submit that there was unreasonable delay within the limitation period and that such delay, albeit of less significance, falls to be considered as part of the general circumstances in weighing prejudice under section 33 (see Donovan at 478H – 479F), as does the passage of time generally, including the time since the Court of Appeal’s decision in January 2006, although no criticisms are made of the Claimant or of her current solicitors in relation to the passage of time since that date. For convenience I shall therefore consider at this point the question of delay generally in this case.

Mr. Moon’s criticism of delay within the limitation period comes essentially to this. He submits that the correspondence and agreed chronology show that John Hodge had had disclosure of all the relevant medical records by approximately April 2001 and had received the first report of the GP expert addressing breach of duty in mid-August 2001. John Hodge at that stage should have sought a causation report and not wait, as they did, until a breach of duty report had been received from an A and E consultant in relation to the Trust, in November 2001. A year passed between receipt of the GP’s breach of duty report and the letter of claim sent on 27^th August 2002. John Hodge then granted Dr Marsden extensions of time to respond until August 2003, but did not issue the claim until 24^th November 2003. Mr. Moon therefore submitted that John Hodge should have acted more expeditiously.

There is, in my view, little merit in these criticisms. I am satisfied, on an analysis of the material, that until December 2003 John Hodge were dealing with matters in an orderly and appropriate way. The Claimant had instructed them promptly and initial notification of the claim and correspondence as to disclosure of medical records proceeded expeditiously. Where a Claimant is alleging breach of a professional duty of care against both her GP and the hospital which she attended, in circumstances such as those which arise here, it is entirely appropriate to obtain expert opinion in relation to breach of duty by both parties before seeking expert advice on the extent to which, if at all, any breaches of duty identified in each case could be said to be causative of her injuries. The breach of duty reports were received within a reasonable time of each request (within two weeks from the GP expert and two months from the A and E consultant). The consultant neurosurgeon’s report on causation was received within five months of the request and therefore within a reasonable timeframe given the complexity of the issues and demands on the time of busy medical professionals. The detailed letter of claim was sent to each Defendant within two months of receipt of that report which, in a case of this kind, was not unreasonable. The chronology and the correspondence show constant activity between the letter of claim and issue of the proceedings. John Hodge then granted requests for extensions of time for a response in February and June 2003 and, having received the Trust’s response in August 2003, chased the GP’s failure to respond by letter of 12^th November 2003. Solicitors were first instructed by Dr Marsden in December 2003 and correspondence between January and 25^th March 2004 indicated the agreement of both Defendants to extensions of time for service if the Rules had been properly complied with.

There is, therefore, no basis for suggesting that, within the limitation period and up until 25^th March 2004, matters could and should have been dealt with more expeditiously.

No criticisms are made of the conduct of the matter by the Claimant’s current solicitors after the Court of Appeal’s decision in January 2006 and up to the present date, and there is no suggestion of further delay. It was clearly sensible to wait for the agreement as to an appropriate indemnity from John Hodge before issuing the current claim. The fact of the passage of time generally falls more appropriately to be considered in relation to its effect upon the prospects of a fair trial of the issues and in weighing prejudice generally and I shall therefore return to that later on.

The crux of the argument on delay under sub-paragraph (a) relates to the period between 25^th March 2004 and the decision in Horton in June 2006 and how that should now be dealt with. The following issues arise in this respect. Firstly, no criticism whatsoever is levelled against the Claimant herself by either Defendant. It is accepted that she acted promptly and appropriately in obtaining legal advice and was entitled to rely on her solicitors to proceed with her claim and to comply with all necessary procedural rules.

Secondly, it being common ground that this period of delay was caused by John Hodge’s default in failing to serve the claim form in time, there is disagreement as to how I should deal with it.

Mr. Oppenheim submits, first, that no blame whatsoever should be laid at the door of the Claimant or her solicitors for this period because, even if a second action against the Defendants had been commenced against them on 25^th March 2004, or at any time subsequently within that period, it would have been doomed to fail at all times due to Walkley, until the decision in Horton and the change in the law. He relies for this proposition on the Court of Appeal’s judgment in Richardson, where the Lord Chief Justice said at paragraph 30:

“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.”

Mr. Moon, in response, argues that the reason for the delay was still John Hodge’s failure to serve the claim form in time; that the Court in Richardson was not seeking to lay down any general rule; and that I should, in any event, look generally at the overall passage of time in weighing matters in the balance under section 33. Further, he submits that the “technical point” taken by the MIB in that case cannot be compared with the “serious error of judgment”, per Dyson LJ, in failing to serve the claim form in time in this case. In relation to that last point, however, I have already stated that there does not seem to me to be any principled basis for distinguishing between the failure to serve the requisite MIB notice and the Claim Form. In Horton Lord Carswell referred to the solicitors’ failure to serve the necessary MIB notice as “a serious piece of professional negligence” (see [2007] 1 AC at paragraph 55).

It seems to me that the Court in Richardson was recognising, at paragraph 30, that it would be unjust, when considering the reasons for the delay on the part of the Claimant to take into account over and beyond the initial failure to serve the claim in time a period of delay for which neither she nor her solicitors could be regarded as responsible. The fact that no second claim against these Defendants could have been successfully pursued until the law changed in June 2006 is beyond argument. In my view the period between 25^th March 2004 and June 2006 ought not therefore to be weighed in the balance against this Claimant in relation to delay under section 33(3)(a).

There is a further dispute between the parties in relation to delay under sub-paragraph (a), which I need to address if I am wrong as to the effect of Richardson. Mr. Oppenheim submits that, since the delay between March 2004 and January 2006 was due entirely to the default of John Hodge, for which the Claimant was not herself responsible, it cannot for that reason be counted against her under sub-paragraph (a). He relies on Lord Diplock’s statement in Thompson v Brown (at 752C) that:

“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.”

He relies also on the following:

Mr. Moon contests this submission, relying on two main grounds. Firstly, he draws attention to some remarks of Lord Carswell in Horton, at paragraph 53 as follows:

“… 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.

Secondly, he submits that the cases of Das, Corbin and Steeds were all decided per incuriam because in none of them was reference made to a clear passage in Firman v Ellis re solicitors’ delay, where at 909D Lord Denning said:

“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.”

Mr. Moon made it clear that, although there were other arguments he would wish to deploy in contending that these three Court of Appeal cases were wrongly decided, he was reserving his position in that respect, it not being proportionate to argue them in the present case. Mr. Porter adopted these submissions.

Notwithstanding the observations of Lord Carswell, there seem to me to be a number of difficulties with the bold suggestion that these three cases were decided per incuriam. Firstly, Firman was overruled by the House of Lords in Walkley (see Thompson v Brown at 752G – H where this is referred to). Secondly, the dicta of Lord Denning relied upon are, in any event, obiter and a subsequent decision of the Court of Appeal can only be per incuriam if it is inconsistent with the ratio of a previous decision. Further, Ormrod LJ neither agreed with them nor expressed the same or any similar view. Nor did Lane LJ. I cannot see, therefore, how the per incuriam doctrine can be said to be engaged.

The origin of the jurisprudence in these three cases is Lord Diplock’s observation in Thompson v Brown in the passage referred to above, which was cited in each of the Court of Appeal cases. Thompson v Brown was not dissented from in Horton. Nor did the House in Horton disapprove the decisions in Das, Corbin or Steeds, all of which were referred to in argument before them.

As the authorities stand at present therefore I regard these cases as binding upon me. This means that John Hodge’s default is not to be attributed to the Claimant when considering the weight to be attached to the reasons for the delay and its duration; and, indeed, when weighing the conduct of the parties.

Section 33(3)(d), concerning a Claimant who is under a disability, does not arise in this case and it is logical to consider next the Claimant’s conduct under sub-paragraphs (e) and (f), namely (e) the extent to which she acted promptly and reasonably once she knew whether or not the acts and omissions of the Defendants, to which her injury was attributable, might be capable at that time of giving rise to an action for damages; and (f) the steps taken by the Claimant to obtain medical, legal or other expert advice and the nature of any such advice she may have received.

The test under (e) is an objective one, but there is nothing to indicate that this Claimant did other than act promptly and reasonably once she was aware of the potential liability; and, under (f), it is clear that she took steps to obtain appropriate legal advice in the circumstances. The Defendants concede this to be the case and make no criticisms of the conduct of this Claimant personally.

I am required under this sub-paragraph to have regard to the conduct of each of the Defendants after the cause of action arose, including the extent to which each responded to requests reasonably made for information for the purpose of ascertaining facts relevant to the Claimant’s cause of action against them.

Mr. Oppenheim makes two criticisms of the Defendants’ conduct. Firstly, in relation to the First Defendant, he criticises as “woeful” her failure to comply with the pre-action protocol and to respond to the detailed letter of claim at any stage. Sub-paragraph (c) clearly contemplates such a response, which is an important step generally, and in particular in a clinical negligence case where a Claimant cannot know whether it is sensible to proceed against a Defendant until she has considered the response to her allegations. I agree that the whole purpose of such protocols is to filter out hopeless cases and to encourage claimants to pursue only reasonable claims.

Mr. Moon submits that Dr Marsden cannot be criticised for the failure to respond before January 2003, when she first became aware of the claim. That I obviously accept. He goes on to submit, however, that she cannot be criticised for the failure to respond subsequently. This is on the basis first that extensions of time were requested and granted until August 2003 and that the importance of such a response diminishes once the pleadings take over, which they did in this case three months later in November 2003. Secondly, he submits that, to the extent that the Claimant is permitted to say that her solicitors’ default cannot be attributed to her personally, so too should Dr Marsden be able to rely on the default of her lawyers and advisers in failing to file a response on her behalf after January 2003. In any event, he contends that her failure to respond cannot excuse John Hodge’s failure to serve the claim form in time. Finally, he points out that the sanctions for the failure to respond are prescribed within the protocols, with appropriate awards of costs to be made against defaulters. It would not, therefore, be right to bring her failure to respond into account under section 33, over and above the sanctions already provided for in the relevant protocol.

I find these submissions unpersuasive. The failure to respond at all to the detailed letter of claim is, in my judgment, a serious matter and one to which I should have regard under section 33(3)(c). The availability of costs sanctions under the protocol is irrelevant to the exercise of the section 33 discretion and consideration of the statutory factors in determining how such a failure is relevant to the equity of the case. I am not, in considering this failure, seeking to excuse John Hodge’s failure to serve the claim form in time.

The main difficulty with Mr. Moon’s submission as to Dr Marsden’s failure to respond and the default of her lawyers or advisers, is the lack of any evidence to support it. Dr Marsden has not served any witness statement herself. Whilst she is entitled to rely on the Defence pleaded by counsel on her behalf, that sheds no evidential light on why she failed to respond to the letter of claim. There is no evidence, therefore, to support Mr. Moon’s suggestion as to where the fault lay and certainly none which would enable me to criticise the MPS or her solicitors, rather than Dr Marsden personally. The documentation before me indicates that the delay in notifying Dr. Marsden of the claim was due to an administrative error made at the Centre. Paragraph 2.1 of the Further Information served tells me only that a witness statement was sought from Dr. Marsden by Mr. Munro of the MPS on 18^th February 2003 and signed by her on 4^th May 2004, without further explanation for a delay of some 15 months. In my view the failure to respond, inadequately explained by the First Defendant, is a relevant factor to which I should have regard in this case.

The second aspect of conduct relied on by Mr. Oppenheim in relation to both Defendants is that they elected to take what he describes as the “technical point” that they were entitled to take; and that the Court should take into account the effects of that election in assessing the prejudicial effect of lapse of time.

The Defendants contend that they were fully entitled to take the point concerning invalid service of the claim form. They point to Dyson LJ’s description of John Hodge’s failure as a serious error of judgment, in submitting that any criticism of the Defendants’ conduct is impermissible, and in denying that this serious breach of the court rules can be described as “technical”.

In Firman v Ellis the writs issued originally in time, in three of the conjoined appeals, had not been served or renewed within the year, as required by the Rules. Applications to renew them had failed before the master and the judge on appeal and the claims were therefore statute barred. New writs issued out of time were resisted by the Defendants. The Court of Appeal in that case clearly regarded these failures as “technical” (see Denning MR at 905G – H); and at 910B Ormrod LJ referred to the Defendants “attempting to take advantage of formal procedural mistakes by the Plaintiff’s solicitors (which have caused them no inconvenience, let alone any prejudice) to transfer liability for the Plaintiff’s claims from the Defendant’s insurers to the Plaintiff’s solicitors’ insurers.”

It is correct, as Mr. Oppenheim acknowledged, that the landscape has now changed and that the breach of the CPR in this case was serious. There is, however, some force in his submission that the Defendants did not need to take the point. In this case, there had been prompt notification of the claim, enabling the Trust to investigate it fully. Although the administrative error at the Centre resulted in regrettable delay in Dr Marsden receiving notification of it, this was resolved in January 2003, after which time the available evidence before me is that investigations were carried out and Dr Marsden provided a witness statement. In August 2003 the Trust admitted breach of duty on the primary allegation. In correspondence with John Hodge in early 2004, after solicitors came on the record for Dr Marsden, both Defendants had indicated that they would be prepared to agree to extending time for service. The Claim Form was served one day late. The Defendants, who were both ready and able to meet the claim, then elected to take the opportunity which presented itself for a rapid exit from the case and for transfer of liability from their insurers to the solicitors’ insurers. In these circumstances I agree that I should have regard to the effects of that election in weighing prejudice and considering how to exercise my discretion.

The delay referred to in this sub-paragraph is the same delay as in (a), that is delay after the primary limitation period expired. Thus I am required to have regard to the extent to which, having regard to that delay, the evidence adduced or likely to be adduced by the Claimant or the Defendants is or is likely to be less cogent than if the action had been brought within the three-year limitation period.

Mr. Oppenheim submits that the fact that the Claimant was not responsible for the delay between March 2004 and June 2006 and that it should not, therefore, be taken into account against her (Richardson) would affect the weight to be attached to any loss of cogency found to result from that lapse of time, in particular where the Defendants in taking the point, bear some responsibility for the lapse of time.

Ultimately, however, he invited me in this case to address the question of cogency having regard not only to delay since the expiry of the limitation period under (b), but generally to the overall passage of time and to the question of prejudice. He did so on the basis that this was how the Court of Appeal approached it in Richardson, holding that the crucial question, having regard to the overall passage of time, was whether it was still possible to have a fair trial on the available evidence (see paragraph 32). This test was also approved by the House of Lords in Hoare, in the passages to which I have already referred.

This, I agree, is the correct approach. It is not enough for these Defendants simply to demonstrate some evidential prejudice as a result of delay. I take the view that I should apply the words of the statute and consider the cogency of the evidence; and that, in considering more generally the passage of time and the effect of that upon the evidence, of paramount importance is the question whether it is still possible for there to be a fair trial of this action on the available evidence.

Mr. Oppenheim submits that the cogency of the evidence in this case is not likely to be adversely effected by the overall passage of time; that the Defendants are not prejudiced; and that a fair trial is clearly still possible. He relies, essentially, on the following: John Hodge’s prompt notification to the Defendants of this claim in early 2001 and the fact that both Defendants have been able to investigate the claims, secure all relevant factual evidence and take witness statements; the Trust’s admission of breach of duty on the Claimant’s primary allegation; the availability of all relevant medical records; and the fact that, overall, the case does not turn on disputed factual recollections either in relation to breach of duty or causation. In particular he submits that Dr Marsden relies on her notes, having no independent recollection of the Claimant’s visits, and upon what would have been her normal practice, as is usual in such cases and as would still have been the position if the trial had taken place in 2005 or 2006. The advice and treatment she gave to the Claimant would then be a matter for expert opinion in assessing whether there was a breach of her professional duty. This is not, therefore, a “lost documents” or “lost defence” case. He submits that the Defendants are not in a worse position, evidentially, than if this claim had been brought in time.

Mr. Moon disputes all this, arguing that the evidence is or is likely now to be less cogent and that a fair trial is no longer possible. In his oral submissions he relied on the following. Through no fault of her own Dr Marsden did not hear about this claim until January 2003. In the letter of claim there is no suggestion that the Claimant had asked Dr Marsden at any stage if she had had a stroke; and no suggestion of a failure to examine her on 11^th December 2000, both of which allegations now appear for the first time in paragraphs 8 and 19 of the Particulars of Claim served in January 2007.

He submits that there is nothing in the notes which helps as to either of these allegations; and the precise nature of the Claimant’s complaints and symptoms during the various consultations is likely to be of considerable significance at trial. Dr Marsden is therefore “hopelessly prejudiced” and will be forced back on to what her usual practice would have been in such circumstances. When this happened she was in training, and the further away she moves from that period, the further her difficulty is increased in recalling what her usual practice would then have been. The Claimant’s recollection on the other hand, as appears from her witness statement, is very detailed and her statement contains material that Dr Marsden at this remove, would have no recollection of. She must, therefore, rely on the notes, where there is no reference to the curling hand and, more particularly, nothing to assist as to the alleged question re a possible stroke and failure to examine on 11^th December. The two factual accounts of the Claimant and Dr Marsden cannot, therefore, be fairly matched and the facts are critical in this case.

Further, in a submission which relates both to cogency under S. 33(3)(b) and to the general equity of the case, Mr. Moon placed great reliance on the following. He submits that, after the first action was struck out in January 2006, Dr. Marsden was entitled to believe that she was no longer going to have to face the stress and anxiety of a claim for damages against her for professional negligence relating to events which occurred during her professional training. As is pleaded in paragraph 8(iii) of the Defence, she sought to erase the memory of events in December 2000 from her mind and, in so doing, her recollection will have been further dimmed, thereby affecting adversely the cogency of her evidence.

I am prepared to accept, without any evidence from Dr Marsden herself, that in January 2006 she had hoped that this case was over, had sought to put the matter behind her, and that she has been upset and disappointed by the commencement of this second claim and the uncertainty which has ensued. Mr. Moon put it too high, however, in relying in this respect on the words of Lord Denning in 1978 in Biss v Lambeth Health Authority [1978] 1 WLR 382 at 389, likening the prejudice caused to Dr Marsden to the “prejudice to Damocles when the sword was suspended over his head at the banquet” which was “a tantalising torment to him”. So expressed these observations seem to me to belong to a different era, when professional negligence claims brought against doctors were rare, and they no longer fit happily with recognition of such litigation as one of the features of modern professional life. In any event it is clear from page 389H that the context for Lord Denning’s observations in that case was the Claimant’s inordinate and inexcusable delay since the issue of the writ, which is what led the Court of Appeal to factor in this kind of prejudice to a defendant, above and beyond that caused by fading memory or the loss of records and disappearance of witnesses. That, however, is not this case.

Whilst I recognise general prejudice of the kind I have identified, and I will return to that below, Mr. Moon is on less firm ground in advancing submissions, without any evidence to support them, as to Dr Marsden’s dimming recollection and inability to give cogent evidence about these events, above and beyond that which would have applied in any event if this action had been brought in time. There is no witness statement from her setting out particular difficulties in this respect or the extent to which she considers she is now prejudiced; nor is there any statement responding to the Claimant’s factual allegations, which might be expected to reveal any areas of factual dispute which could not now be fairly resolved on the evidence.

Mr. Moon relied on a sentence in Haynes v Atkins in 1983 (unreported: 11^th October 1983 – Cumming-Bruce LJ and Drake J) in which Drake J said he did not think it necessary, in order to apply principles of the Biss kind, for the Court “to have an affidavit from the Defendant deposing to the fact that he feels oppressed or prejudiced by the delay. I think the Court is entitled to make its own judgment from the facts before it.”

At this point, however, I am concerned with submissions as to the particular effects of the delay upon Dr Marsden’s ability to recollect and the cogency of her evidence, and there is little material before me to support Mr. Moon’s submissions. It is not pleaded on her behalf in her Defence that she does not recall the case or anything about it. Nor is she asserting that she did not have a recollection when she first committed her response to writing, or when she made and signed her witness statement. She would wish, naturally, to erase the memory of these events from her mind, but such a statement, without further explanation, does not assist me as to cogency.

Her Defence in fact contains a detailed response to each pleaded allegation, including positive denials based on the contents of the contemporaneous medical notes, and which must have been advanced on instructions. Forensic experience recognises this as standard territory for clinical negligence disputes, where busy professionals rarely have recollections of consultations occurring even a few months previously, and understandably rely on their notes and on what would have been their usual practice in such circumstances. The courts are well used to dealing with these cases on that basis and there is no evidence from Dr Marsden which shows any particular evidential difficulty arising for her in this respect.

It is, of course, unfortunate that Dr Marsden herself was not notified of this claim until January 2003, but the administrative error at the Centre is not to be laid at the Claimant’s door. Dr Marsden was apparently able to set out her recollection of events on 22^nd January 2003 and she signed a witness statement, first requested from her in February 2003, on 4^th May 2004. No notes were ever made of the tutorial discussions between Dr Marsden and her supervisor, Dr Cembrowicz, and he has set out his recollection of events on 5^th March 2003. There is no evidence served from him for this hearing.

By the expiry of the limitation period in December 2003, therefore, Dr Marsden had long since committed her account to writing. The letter of claim had set out the gist of what happened on 2^nd December and the alleged events of 4^th and 11^th December 2000. The allegations of negligence were clearly spelled out and allegation number 4, referring expressly to the Claimant’s curled hand, provided the essence of the case alleged against her. The letter omits only the Claimant’s alleged question as to a possible stroke. Given the reference to a curled hand, that omission in my view is not such as to enable Dr Marsden now to assert that the case she would have to meet today was not before her in all essential details when she saw the letter of claim in January 2003 and subsequently provided a written response.

Mr. Oppenheim also pointed to references in the notes which could be said to be supportive either of the Claimant’s case as to matters drawn to Dr Marsden’s attention or of the Defendant’s case to the contrary. These included, for example, the reference to loss of power in the Claimant’s right arm in the note for 2^nd December; the reference in the same note to tests for tenderness between the shoulder blades said to indicate a complaint of central back pain; and the reference to the difficult clinical picture. On the other hand the notes refer, on 3^rd December, to the Claimant reporting that she was feeling better and, on 4^th December, to the Claimant’s right arm improving. There is also the obvious point, fairly accepted by Mr. Moon, that the absence of references, for example, to a curled hand, might be said to be helpful to Dr Marsden in contending that such a feature had not been drawn to her attention at that time. Whatever the merits of these observations however, and I express no view upon them at this stage, I agree with Mr. Oppenheim that Dr Marsden is not in a worse position, evidentially, than she would have been in if this claim had been brought within the limitation period. The trial judge would determine the facts on the basis of the evidence, Dr Marsden’s account being heavily dependent on the contemporaneous notes and her usual practice, as is usually the case in litigation of this kind. Whether her advice and treatment can be said to be such as to meet the required standard of care would then fall to be determined with the assistance of relevant expert opinion, as would causation of injury.

As far as the Trust is concerned, breach of duty was admitted in relation to the Claimant’s primary allegation and no evidential prejudice is claimed in that respect. In relation to the secondary allegation, the failure to ensure prompt review of the Claimant on admission, the second witness statement of Ms. Linehan (Bevan Brittan), dated 16^th January 2008, confirms that the nurse who triaged the Claimant on her admission has now been identified, but that “at the moment she has been unwilling to assist.” Ms. Linehan fairly accepts that it is not known whether she would have been willing to assist if proceedings had been properly served the first time. She states, however, that in the absence of evidence from that nurse, the Trust has been unable to identify anyone who can advise as to the relevant triage protocols and appropriate waiting times in 2000. The allegations of evidential prejudice previously set out in paragraphs (b) and (c) on page 4 of her first witness statement are now no longer pursued.

Mr. Porter submits that the cogency of the Trust’s evidence as to the secondary allegation of negligence is likely to be imperilled as a result of this difficulty. The allegation was first made more than six years after the events complained of and well outside the limitation period. It raises for the first time the competence of the first nursing assessment. The triage nurse cannot be blamed for being unwilling to co-operate at this distance, when she will have no recollection of the Claimant or of her level of pain on admission.

I have sympathy for the Trust in this situation and have looked carefully at the evidence which is available or likely to be available on this issue. The Claimant’s case is that she was in severe pain on admission and that this mandated medical review within one to two hours. The medical record shows that the pain score was not completed. If the triage nurse decided to assist she would no doubt rely entirely on her usual practice in such cases. The Court would have to determine the Claimant’s level of pain on admission as a matter of fact and would then consider, with the assistance of expert opinion, whether the pain score should have been completed and, if so, what it would probably have shown. This, as it seems to me, would be no different from the situation which would have arisen if this claim had been brought in time. A triage nurse will perform many such triages, often in the course of a single shift, and it would be unrealistic to expect her to have any recollection of this particular case, even a short time after it occurred.

In the nurse’s continued absence, however, it appears from Mr. Hockley’s evidence that Dr Lloyd, the A and E consultant, was advising the Defendants from an early stage. Mr. Hockley refers to a letter from Dr Lloyd dated 8^th October 2001 being amongst those documents before him when he prepared his report of June 2003. In his covering letter of 26^th June 2003 he refers to criticisms of the Claimant’s management made by Dr Lloyd in respect of her first hospital visit. Dr Lloyd’s criticisms appear at page 5 of Mr. Hockley’s report. Mr. Oppenheim submitted that Dr Lloyd would be able to advise the Trust as to the relevant triage protocols and waiting times in December 2000. Mr. Porter submitted that Dr Lloyd was not there at the time of the Claimant’s admission and that it is no longer possible to know, for example, how busy the A and E department was on that morning.

I note that on page 4 of her first statement Ms. Linehan stated:

“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.

I therefore find, in this case, that the cogency of the evidence to be adduced or likely to be adduced by both Defendants is, in my judgment, unlikely to be adversely affected by events since the end of 2003. Further, notwithstanding the concerns referred to above, the continued availability of all the relevant medical records, the opportunity afforded to each Defendant within the limitation period to investigate the allegations fully and to take relevant witness statements means that a fair trial of this action is clearly still possible.

I turn finally to the general matters raised, in addition to those listed under section 33(3), in order to decide whether in all the circumstances this Claimant has shown that it would be equitable to disapply the limitation provisions. All matters are common to both Defendants, save the particular point concerning disclosure of Mr. Hockley’s report, which the Trust alone rely on as causing them irreparable prejudice.

The Defendants make the following submissions in relation to prejudice:

In disputing the validity of all these grounds Mr. Oppenheim submits that the previous use of court resources should not now stifle a valid claim, following a change in the law, when previously the Claimant had had no effective opportunity to litigate her claim against these Defendants, and when they were ready and able to meet it in March 2004. The claim is not as stale as many which come before the Courts, the prompt notification of this claim enabling the Defendants to investigate it fully and secure relevant factual evidence and medical records, on which the experts will be able to provide an opinion. On a broad view of the merits at this stage, having regard to the pleaded cases, Mr. Hockley’s observations and the Trust’s admission of breach of duty, the Claimant’s claim cannot possibly be regarded as one without merit. The terms of the indemnity are clear and the Defendants are protected in relation to costs. Dr Marsden’s disappointment at the prospect of having to address this claim once again, after she thought it had ended, must be weighed against the prejudice which would be suffered by the Claimant if she is unable to pursue her claim against those whom she reasonably sees as responsible for her serious injuries. Mr. Hockley’s report was received by Mr. Lockhart in good faith, as the Defendants accept, and he was duty bound to act upon it in relation to the claim against John Hodge until the decision was taken, following Horton,to issue this second claim against the Defendants. In any event, if it is considered appropriate, the Court can restrict its use in this action through the exercise of appropriate case management directions, to which the Claimant would have no objection. It is not correct to state that the Claimant has a cast iron case against John Hodge, given the uncertainties surrounding causation and the fact that, if she succeeded, the Claimant would recover damages representing the loss of a chance only, and not full damages for her injuries and their consequences. The balance of prejudice in this case, in relation to each Defendant, lies firmly in the Claimant’s favour. If her claim is not allowed to proceed the Defendants will have been granted a wholly unmeritorious windfall limitation defence.

In relation to the first, court resources point I refer again to the observations made above when considering this under the heading of abuse of process. I agree with Mr. Oppenheim that, at this stage, it is important to consider whether this Claimant had an effective opportunity to litigate the first claim against the Defendants. If she had had an appropriate share of resources but had failed to use them appropriately, for example, as a result of inordinate and inexcusable delay, that would be a factor to be held in the balance against the Claimant in considering the equity of the case. In the case of a Claimant whose first claim has been struck out for want of prosecution in such circumstances a Court might well conclude that it would not be equitable to disapply the limitation period for a second claim brought out of time, even if a fair trial were held still to be possible.

In the present case, I do have regard, in the Defendants’ favour, to the fact that John Hodge made a serious error of judgment in failing to serve the claim. On the other hand, however, this Claimant never had an opportunity to litigate a claim which, in March 2004, these Defendants were ready and able to meet. The Claimant’s decision then to expend resources in seeking to persuade the courts to extend time for service cannot, in my view, be regarded as unreasonable in all the circumstances. Until Horton she was, of course, bound at all times by the decision in Walkley. So far as the Claimant’s use of future court resources is concerned, even if I did not permit this action to proceed, such resources would be used in the future in any event in pursuing a claim against John Hodge. I shall deal below with the submission that she should have sued her former solicitors rather than these Defendants and with the submission that she has a cast iron claim against them.

In relation to the staleness of this claim, it is not as stale as many which come before the courts, in which experts must, and are able to, consider standards of medical practice as they were many years ago, rather than as they are now. The important points in considering the staleness of a claim are (a) when the Defendants first became aware of it; and (b) the extent to which they have had an opportunity to investigate it and secure relevant evidence. In this case the Claimant acted promptly and it is not suggested by either Defendant that any records or other relevant documents have been lost. Experts so far instructed have been able to provide an opinion as to the relevant standards of practice in December 2000. Even though there was a delay in Dr Marsden being notified of the claim, she has been able to prepare and sign a witness statement as discussed above.

Mr. Moon’s submission as to prejudice, in ground (3) above, was not expressed as an inability by Dr Marsden to deal with the allegations, rather than a belief that she had put them behind her and the uncertainty now hanging over her once again when she is even further removed from the period of her training. I accept and take into account the general prejudice likely to be caused to a medical practitioner in such circumstances, when she would reasonably have believed the litigation to have come to an end in January 2006. There is, however, no evidence from her advancing any further prejudice in this respect and certainly nothing to support the suggestion of “significant, unwarranted distress” made by Mr. Moon. Balanced against this is the Claimant’s own wish, as expressed by Mr. Oppenheim on her behalf, to pursue her claim against those whom she regards as primarily responsible for her injuries, rather than to proceed against her former solicitors. There is no evidence from the Claimant as to her particular feelings in this regard, but I am prepared to give some weight to each of these matters in relation to both the Claimant and Dr Marsden.

Mr. Porter’s complaints concerning the disclosure of Mr. Hockley’s reports and the Trust’s forensic disadvantage have some validity in my view. It is agreed that the report was disclosed, and the matter discussed between solicitors, for the sole purpose of assisting the Claimant in her claim against John Hodge; and Mr. Porter submits that, although it is not suggested that Mr. Lockhart acted in any way incorrectly, it is a fact that privileged information, obtained for one purpose, has now been used for another. He submits that Mr. Hockley’s views, as expressed in his report and covering letter, are not “hugely supportive of the Trust’s pleaded Defence”. He draws attention to those passages to which I have already referred above (in paragraphs 46 -47) and to the statement in his covering letter that more experienced advice and action on the morning of 13^th December “may have produced a better outcome”. All this, he submits, cried out for a consultation with Mr. Hockley to clarify his views on causation, applying the balance of probabilities test. Further, references to the views of Dr Lloyd, on which the Claimant now relies, could legitimately have been removed from the disclosed report. Mr. Porter submits that, if this claim is now allowed to proceed, the Trust would either have to rely on Mr. Hockley or consult a new neurosurgeon, leading to further delay and costs. The Claimant and Dr Marsden will both be able to rely on Mr. Hockley’s opinion and the Trust has suffered significant prejudice in this respect.

I note, notwithstanding these submissions, that the Trust has been able to plead a positive case on causation at paragraph 23 of their Defence (see above), namely that the admitted breach of duty in fact made no difference because the damage sustained by the Claimant had already been done. This it would seem (and Mr. Porter did not address this point) has been pleaded on the basis of expert opinion, either from Mr. Hockley or from another expert.

Whatever the position, however, the Trust’s argument that waiver of privilege was limited to the use of Mr. Hockley’s report in an action against John Hodge and was not a general waiver seems to me to have some force. However, I do not accept Mr. Porter’s submissions that it would be unrealistic now to put strictures upon its use. Appropriate case management, if this claim were allowed to proceed, could include an order constraining its use and reliance upon it by the Claimant. This would be an appropriate and proportionate way of addressing any prejudice caused to the Trust in this respect. Since Mr. Hockley includes in his report some cogent criticisms of Dr Marsden’s actions I regard the suggestion that she might want to rely upon it herself as fanciful and Mr. Moon did not advance it.

Factors (5) and (6), relating to costs and the merits of the Claimant’s case, fall to be considered together. Mr. Porter relies on the Court of Appeal’s decision in Lye v Marks & Spencer Plc (unreported: The Times, 15^th February 1988, Transcript no. 97), where the Court held at page 6G that, in relation to section 33:

“… 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.”

In Forbes v Wandsworth Health Authority [1996] 3 WLR 1108, the Court of Appeal held that the strength of the Claimant’s case was relevant to considering the exercise of the section 33 discretion, observing that at this preliminary stage the judge should take an overall view of the prospects of success. Stuart Smith LJ said this at 1121C – D:

“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.”

Mr. Moon criticises the absence, in this hearing, of any expert evidence supporting the Claimant’s case against Dr Marsden; and submits that, on a broad view, Mr. Hockley’s report is not very supportive of the Claimant’s case against her. He contrasts Dr Marsden’s position with that of the Trust, against whom he submits that there is every chance that the Claimant would recover the vast proportion of her damages.

Firstly, in relation to costs, whilst the precise terms of the indemnity are not before the Court, the statement of Frances Wright is entirely clear. John Hodge accept responsibility for the costs incurred as the result of the first claim and the Defendants are protected. Indeed in the circumstances, if this second claim were permitted to proceed, it would be open to the Court to order that these costs, or a portion of them, should be paid before it continued any further. In respect of the costs of this action it is difficult to see how the Defendants can complain about their potential liability in costs for an action which could have been properly brought against them if they had not elected to take the service point so that the claim was struck out. Counsel in Lye appears to have conceded that a Claimant’s ability to meet the Defendant’s costs will normally fall to be considered under section 33 (see page 6E), but Mr. Oppenheim makes no such concession here, where these Defendants are in exactly the same position they would have been in in the first action.

In any event Forbes makes clear that Lye applies to cases where an impecunious Claimant is pursuing a poor case wholly lacking in merit. In this case the Trust has admitted breach of duty on the primary allegation and pleads a bare denial in respect of the secondary case. Mr. Porter accepted that Mr. Hockley’s causation report was not hugely supportive of the Trust’s pleaded Defence. The Claimant’s pleaded case on breach of duty and causation against both Defendants will not have been pleaded without the support of expert opinion and there is nothing pleaded or put forward at this hearing on Dr Marsden’s behalf to indicate that the Claimant’s allegations against her are wholly lacking in merit. Mr. Moon sought to emphasise the evidence concerning the Claimant’s long-standing cervical spondylosis and to suggest that Dr Marsden could reasonably attribute the Claimant’s symptoms to that condition. Mr. Oppenheim pointed, however, to references in the records to the presence of signs of infection and to the history and nature of the Claimant’s symptoms, including weakness in her right arm and loss of sensation. Such competing observations clearly demonstrate that, taking a broad-brush view, the Claimant’s claim against Dr Marsden cannot be regarded as one which is wholly lacking in merit.

In the circumstances I do not consider that it was incumbent upon the Claimant to give advance disclosure of her expert evidence for the purposes of this hearing. I also take notice of the fact that the Legal Services Commission would not be funding this claim, in respect of allegations pursued against both Defendants, unless they were satisfied as to its having reasonable prospects of success against both. The issues in this case are such that the Claimant’s decision to proceed against both the GP and the Trust was an entirely reasonable and understandable one.

I can therefore identify no basis in this case for concluding that the Claimant’s case against either Defendant is weak or so lacking in merit as to make that, and her impecuniosity, a relevant factor to weigh in the balance against her under section 33.

The Defendants placed considerable reliance, finally, on the seventh factor, namely what is said to be the Claimant’s unanswerable claim against John Hodge, whose error has led both to the Claimant’s previous use of court resources and to the issue of this second claim. Reliance is placed on the words of Lord Griffiths in Donovan v Gwentoys at 479F that:

“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.”

The Defendants describe the case against John Hodge as one which is “cast iron” and submit that any discount likely to be required by the Claimant on any settlement is small. They point out that there would be no further delay, because the Claimant already has new solicitors acting for her and preliminary steps were taken in 2006 in relation to the claim against John Hodge. Nor would the Claimant incur any personal liability for the costs, given her personal indemnity. If, as Mr. Oppenheim submits on her behalf, she would prefer to sue the Defendants as responsible for her injuries, who would otherwise benefit from a windfall limitation defence, rather than sue her former solicitors, with corresponding consequences on their insurance premiums, the Court must weigh against that the Claimant’s undoubted anger with John Hodge, who caused the problem in the first place. An unmerited windfall benefit, it is said, would fall to John Hodge and the solicitors’ insurers, to whom premiums are paid to provide for just this sort of situation, if this action were permitted to proceed.

I agree that the existence of a claim against John Hodge is a highly relevant factor under section 33 and the case in negligence against them is strong. However, in litigation against them this Claimant would have to demonstrate the merits of the underlying action, which has not been determined by the Court. It is in my view fanciful to say that the Claimant would not then have to meet arguments that her damages should be discounted for the chance that her claim might have failed. In this respect the factual disputes in relation to her consultations with Dr Marsden, and the question of causation, given Mr. Hockley’s views as currently expressed and the Trust’s positive case pleaded at paragraph 23, would all be likely to be deployed with a view to seeking to reduce the award of damages to less than its claimed value, or to settle the claim on the same basis for the chance that the Claimant might have failed on breach of duty or causation. As a matter of law the Claimant would, in any event, recover only the full value of her lost chance to bring the claim, rather than the full value of her claim, if she succeeds against these Defendants as the primary tortfeasors.

Thus, in my view, the Claimant would not suffer “only the slightest prejudice” if she now has to sue John Hodge, but real and material prejudice. In Donovan, the context for Lord Griffith’s observations referred to above was that the Claimant’s claim had first been brought to the attention of the Defendants many years after the relevant incident and when the Defendant had had no opportunity to investigate it. This contrasts clearly with the present claim which for the reasons I have set out in full above, could not be said to be a claim that these Defendants would have “the utmost difficulty in defending”.

Given the indemnity in relation to costs and interest, it is inappropriate to suggest that John Hodge would gain any windfall benefit. In any event, I am not primarily concerned in this case with the effects on John Hodge or the solicitors’ insurers in arriving at my decision in relation to these parties under section 33. The real prejudice to these Defendants, as it seems to me, is in relation to their costs and interest, which John Hodge have agreed to meet.

I have revisited and considered carefully all the matters addressed above, including those factors listed in section 33(3) and all the circumstances of this case so far as they affect each Defendant separately, in arriving at my decision under section 33(1). I have formed a clear view that, in balancing the prejudice to the Claimant and to each Defendant, the circumstances weigh firmly in the Claimant’s favour. I emphasise that each Defendant was ready and able to meet this claim on its merits in March 2004 and overall, notwithstanding those matters addressed above, each Defendant cannot be said to be in a worse position evidentially now. A fair trial, in my judgment, is still possible. However, I emphasise that I have had regard to all those matters addressed above in concluding that the Claimant has discharged the burden upon her under section 33 of satisfying me on all the available evidence that it would be equitable to disapply the limitation period in this case and to allow the claim to proceed.

Two matters remain. I recognise the prejudice caused to the Defendants in relation to costs and, in the circumstances, I consider that the costs incurred in relation to the first claim should be paid before this action proceeds further. Given the clear terms of the indemnity as to costs and interest I see no reason why that should lead to any further delay, but I grant liberty to the parties to apply if there are difficulties in this respect relating to the making of such an order.

I have also referred above to the prejudice caused to the Trust by the disclosure of Mr. Hockley’s report and covering letter, which would otherwise have remained privileged. Whilst I have indicated that I would in the circumstances be prepared to make an order constraining the use of his report in these proceedings it is not entirely clear to me that the Second Defendants have yet decided whether they would wish me to make such an order or would wish, in the event, to retain Mr. Hockley as their expert in the case. If they do seek such an order, and since Mr. Oppenheim made clear in his submissions that he would not oppose it in the circumstances, a direction to that effect can be included in the order now to be drawn up following this judgment. I grant liberty to the parties to apply as to that, or indeed as to any further directions if necessary arising from my decision, with a view to enabling this action to proceed without further delay.