Rogers v East Kent Hospitals NHS Trust

By a claim form issued on 31 May 2006, Mrs Jacqueline Anne Rogers [“The Claimant”] claims against the East Kent Hospitals NHS trust, as the employer of Mr Martin Lock, a consultant orthopaedic surgeon, damages for personal injuries and losses arises from negligent medical treatment that she received whilst a patient at the William Harvey Hospital between December 1995 and January 1998 to correct a Hallux Valgus deformity in her left foot. In its defence, the Health Authority pleaded that the action was commenced more than 3 years after the claimant’s date of knowledge - as defined by section 14 of the Limitation Act 1980 (“the Act”), that the Health Authority’s alleged omissions involved negligence and/or breaches of duty and so the action was statute barred, in accordance with the provisions of section 11 of the Act. The claimant in her Reply pleaded that her first date of knowledge was in 2005/6 upon receipt of medico-legal evidence (sic) from Mr R A Wilkes, a consultant orthopaedic surgeon. The limitation issues were tried as a preliminary issue on 29 November 2007 at the Canterbury County Court by His Honour Judge Mitchell who held that the cause of action was statute barred and declined to exercise the court’s discretion under section 33 of the Act in the Claimant’s favour. The claimant appeals against those rulings by leave of Eady J.

The claimant is now 60 years old, having been born on 1 May 1968. In 1995, when she was living with her children in Ashford, Kent, she was suffering from Hallux Valgus deformity of the left foot and was referred to the William Harvey Hospital where on 12 December 1995, she was examined by Mr Shafquat, a locum registrar. He noted an obvious Hallux Valgus on her left foot with the big toe pushing the second toe underneath the third toe; the third toe was noted to be overriding the second toe and there was probable sub-luxation at the metatarso-phalangeal joint. She had a very prominent bunion which was tender to touch. Mr Shafquat formed the opinion that the problem could be corrected surgically by a Mitchell’s Osteotomy. On 22 July 1996, the claimant was admitted for day surgery to be carried out by Mr Lock. He formed the view that the Hallux Valgus was of such severity that a ‘Roger Mann’ procedure should be carried out. There is no complaint of that decision or of the surgical procedure. It is common ground that Mr Lock informed the claimant that there was a risk in 10/15% of cases that the procedure may not correct the deformity.

Over the following months, the claimant’s second and third toes became increasingly painful and deformed, the second toe began to under-ride the third toe and there was dislocation of the metatarso-phalangeal joint of the third toe. The claimant was seen on 14 January 1997 by Mr Sanjiv Manjeure, an orthopaedic registrar. She was complaining of pain over the second and third toes, of being unable to wear shoes and being unable to walk. Mr Manjure discussed his findings with Mr Lock who decided that she should be put on the waiting list for amputation of the left second toe at the metatarso-phalangeal joint and for a proximal hemi-phalangectomy of the third toe. He referred the claimant to the surgical fitter for metatarsal arch support.

On 14 April 1997, the claimant underwent amputation of the left second toe and hemi-phalangectomy of the third toe. The operation was conducted by Mr Lock and there is no complaint about the operation itself.

The operation was not successful and the claimant developed progressive valgus drift of the great toe with a recurrent bunion. She began to suffer severe pain, together with pins and needles in the toe due to traction on the digital nerve consequent upon the progressive Hallux Valgus. In addition, the claimant suffered significant transfer metatarsalgia under the second and third metatarsal heads as a result of the uneven weight distribution consequent upon the amputation of the second toe.

There followed many consultations with the claimant’s general practitioner and at the hospital until May 2000, when the claimant moved to live in Staffordshire. In Staffordshire, she consulted her general practitioner about her residual complaints of pain and disability; her general practitioner referred her to a consultant orthopaedic surgeon, Mr Mark Price. She was seen in the Podiatric Surgery Department at Cannock Chase Hospital on 9 January 2003 when a decision was taken to continue with conservative care. She was seen by Mr Price on 13 October 2003, when she was still in pain with her left foot. Mr Price discussed with her the alternatives to the surgery which had been carried out on 14 April 1997 as well as the surgical options which were then available to address her continuing pain and disability. Mr Price recalls that the claimant said at that meeting that she was going to contact solicitors regarding the possibility of legal action. The claimant's case is that it was at this consultation that she first found out about the omission of Mr Lock to tell her about the alternatives to amputation. It seems to be generally accepted that on her case that was the date at which she had knowledge that “the injury was attributable to the omission alleged”: section 14 (1(b)) of the Act – see below. The claimant immediately consulted solicitors and those solicitors in due course instructed Mr R A Wilkes, a consultant orthopaedic surgeon. Mr Wilkes advised there had been a failure on the part of Mr Lock to implement the fitting of a toe spacer and surgical shoes and there had been delay in performing the necessary corrective osteotomy (which was in fact carried out subsequently on 22 October 2004).

The claim form was issued on 31 May 2006. At the trial of the preliminary issue, the claimant contended that her claim had been commenced within 3 years of her date of knowledge, that being 14 October 2003 in respect of the failure of Mr Lock to advise her as to the alternatives to amputation and 2005/6, when she received the medico-legal opinion of Mr Wilkes as to the failure to perform a scarf osteotomy and the failure to implement shoe modification and to fit a toe spacer. By the defence, the Health Authority claimed that there were the six occasions, particularised in paragraph 21, when the claimant ought reasonably to have questioned the treatment given by the Trust. (See paragraph 9 below).

The Limitation Act 1980.

At the trial of the preliminary issue, the Health Authority contended that on 14 January 1997, when the Claimant attended an outpatient appointment following the first operation on 22 July 1996, she ought reasonably to have been aware that that first operation had not corrected the bunion deformity and the deformity of the third toe. It was contended that she ought reasonably to have questioned the treatment (i) on 10 June 1997, after the second operation, when it was confirmed that the bunion had returned and further surgical treatment was recommended; (ii) on 12 August 1997 at a further outpatient appointment where her condition was discussed and it was confirmed that the second operation had not achieved the desired outcome; (iii) on 22 October 1998, when she attended her GP who noted that the support she was wearing didn’t seem to be helping and she needed surgical shoes; (iv) on 7 September 2000 when she again attended her GP and they discussed a referral to a local chiropodist because none of the treatments given by the Health Authority had worked and her pain was continuing and (v) on 7 February 2003 when she had her first appointment with Mr Price in Staffordshire and he discussed with her the possibility of further surgical intervention.

Counsel for the claimant referred the learned judge to Driscoll-Varley v Parkside Health Authority [1991] 2 Med LR 346 and Smith v West Lancashire Health Authority [1995] PIQR 514. Counsel cited part of the judgment of Hidden J in Driscoll-Varley –v- Parkside Health Authority at page 357: -

“In my view, in looking at the provisions of section 14 (3) of the 1980 act, it is necessary for me to ask the question: was it reasonable for this plaintiff to seek advice before the issue of the writ,that is to say before May 4 1989? Put another way, that question can be resolved: was it unreasonable for her not to seek advice?”

In Smith –v- West Lancashire Health Authority, the plaintiff had attended at accident and emergency department complaining of an injury to his right hand; an X-ray was undertaken and a diagnosis of an uncomplicated fracture of the base of the ring finger made and conservative treatment prescribed; some six weeks later it was appreciated that the fracture required open reduction and internal fixation. Counsel cited a part of the judgment of Russell J : -

“As earlier indicated, the omission alleged in this case was essentially an omission to operate promply. It was that omission which allegedly constituted negligence, together with the failure to properly diagnose. When did the plaintiff first have knowledge of that omission? The reality is that he did not know that there had been an omission to operate at all until he was so advised by Mr Downie to that effect. True he knew that he had not had an operation on or about 12 November 1981 but that knowledge cannot, in my judgment, be knowledge of an omission “which is alleged to constitute negligence”. One cannot know of an omission without knowing what it is that is omitted. In this case that was an operation to reduce the fracture dislocations, as opposed to conservative treatment. Simply to tell the plaintiff that the first course of treatment had not worked, is not the same as imbuing the plaintiff with a knowledge of an omission to operate Accordingly, in my judgment, the plaintiff never had actual knowledge of ‘the fact that his injury was attributable to the act or omission which he alleges constituted negligence’ within the terms of section 14 (1) (b). The learned judge held the necessity for an operation in January 1982, coupled with the plaintiff being told that his earlier treatment had not worked put the plaintiff on notice… I do not agree and this being the ratio of the judgment, I consider the judge fell into error”.

Counsel for the Health Authority referred the learned judge to a part of the speech of Lord Mance in HAWARD v FAWCETTS [2006] 1 WLR 682, at paragraph 126 on page 724: -

“The language of section 14 A thus recognises a range of different states of mind: (a) actual knowledge of the material facts about the damage and other facts relevant to the action (including therefore knowledge that the loss was capable of being attributable to an act or omission alleged to constitute negligence); (b) knowledge that a claimant might reasonably been expected to acquire (from facts observable by himself or ascertainable by him or with the help of appropriate expert advice which it would have been reasonable for him to seek); and (c) ignorance. Actual knowledge within (a) involves knowing enough to make it reasonable to investigate whether or not there is a claim against a particular potential defendant: see para 112 above. Constructive knowledge within (b) involves a situation where, although the claimant does not yet know sufficient for (a) to apply, he knows sufficient to make it reasonable for him (by himself or with advice) to acquire further knowledge which would satisfy (a)”.

Counsel also referred the learned judge to that part in the judgment of Leveson LJ in Kew –v- Bettamix and others [2006] EWCA Civ 1535 where, after referring to the above cited passage from the speech of Lord Mance, the Lord Justice said (para 15): -

“Applying that analysis to the circumstances of personal injury litigation, an injured person must know sufficient to make it reasonable for him (by himself or with advice) to acquire further knowledge of the link between his injury and his prior working condition”.

In this court, Counsel for the Health Authority relied also upon a Lawtel report of the decision of the Court of Appeal (Civil Division) on 26 November 2008 in White –v- Eon & others [2008] EWCA Civ 1463 (26.11.2008). There is no transcript of the judgments yet available but the facts would appear to be that the appellant issued proceedings against a number of employers for whom he had worked between 1962 and 1996 seeking damages for vibration white finger and carpal tunnel syndrome caused by excessive levels of vibration from tools used in his work as a lightening conductor fitter. His case was that his date of knowledge had been in the summer of 2003 when he saw an advertisement for a claims company. As the employers contended that his date of knowledge was much earlier so that his claim was statute-barred, the existence of the limitation defence was determined as a preliminary issue. The judge found that while the appellant had not actually known that his condition was attributable to negligence, he had constructive knowledge pursuant to section 14 (3) of the Act by the time he left his employment with S in 1996 because by then “it had been reasonable to expect him to have sought medical advice in respect of his combination of systems which would have led to the necessary link between his condition and the vibrating tools”. The Lawtel headnote reads:

“The judge had asked himself the question whether, having regard to the symtoms W was experiencing in 1996, it would have been reasonable to have expected him to seek specific advice from his doctor. It had never been suggested that that was the wrong question to ask ADAMS v BRACKNELL FOREST BC [2004] (UK HL 29 [2005] 1 AC 76 applied it had been for the judge to decide what was or was not reasonable for W to have done in the circumstances. His finding that it would have been reasonable for W to have sort medical advice was a finding of fact open to him on the evidence before him and not the sort of finding that the court of appeal ought to interfere with. It had not been illogical to find that W had constructive knowledge by the end of 1996: the judge’s finding to that effect had been both obvious and logical and could not be criticised.”

His Honour Judge Mitchell considered the issue of the claimant’s knowledge in paragraphs 66 – 75 of his judgment: -

“66.

Now to my mind the factual situation which presents itself in this case in relation to Mrs Rogers, differs from the case of Driscoll-Varley and Michael Smith. In this case, after the first operation, the claimant describes how her foot became painful and how the operation did not seem to have helped at all. After the first operation she said the bunion came back, she still had pain and was still dissatisfied.

67.

As I have already dealt with in the factual matrix, she had not attended an appointment, although I do not hold it against her and it may be that there was an administrative error, but she had attended at the accident and emergency department and was referred to the foot clinic which she declined to attend.

68.

Now she also said she was angry that she had had two operations which were not successful. In my judgment there was every reason for Mrs Rogers to go back to the medics whether it be her own GP and I appreciate she did attend her GP but be referred back to the clinic and she was given really an indication that they would be pleased to see her again, and to discuss matters further with the medical staff.

69.

The second operation took place on 14^th April 1997, and indeed she said in 2000 that she was dissatisfied. That would, I think, still have been within the limitation period. She said in evidence she did not know the doctors could be sued (for this sort of thing).

70.

In my judgment it cannot be said, as Mr Wright submits, that had she seen the doctors in the orthopaedic team or her GP and discussed the matter that it would not have gone anywhere. In my judgment the reason that it would have got somewhere is that this case is very different from those on which he relies, and the reason they are different is this: that when the claimant did chose to go to her GP and be referred to Mr Price in Staffordshire, within a matter of months the fact that she may not have been properly advised emerged, and it emerged because she was simply discussing the factual situation that had existed in 1997, and I am quite satisfied that had she raised the matters with the medics the position is that the advice which she had or had not been given would undoubtedly have been revisited. And it had been the case in 1997 or 1998 that she had discovered that she had not been given all the options, then I have no doubt that she could and probably would have taken legal advice at that stage

71.

I take the view that the factual situation here is more covered by the situation described by Lord Mance in the judgment to which I have referred and applied by the Court of Appeal in the case of Kew –v- Bettamix Ltd.

72.

To my mind, as I say, it was incumbent upon her to seek further advice and given the way in which this case has developed I am quite satisfied that had that been done in 1997 the situation which she alleges would have emerged.

73.

Now I am well aware that I am not deciding the issue of what advice was actually given, but I have listened carefully to the evidence given by both the claimant and indeed her daughter, and also by the consultant orthopaedic’s version Mr Lock. Now as I have already indicated in this judgment, he said it was his usual practise to give patients the option and to discuss the options and effectively let them choose, and give them the benefit of his advice.

74.

Now at the same time, Mrs Rogers, whilst being clear that she was never given that option, did have some difficulty on occasions in recollecting, and that is not a criticism of her, but it is simply a reflection of the problems that any of us would face if we were trying to trawl our memories for things that happened 10 years ago. Or even if one looks at the time of the discovery of knowledge as the claimant is saying, she would have been looking back for some 6½ years.

75.

Now it seems to me that, having heard that evidence, that it would not be an unreasonable finding to say that quite simply Mr Lock may well have followed his usual practise and the claimant is simply wrong in her memory because of the sheer lapse of time in thinking that she had not been so advised. Now I make it clear that I do not make that finding but I have heard the evidence and it seems to me that such a finding at the end of a trial on the merits of the issue would not be by any means unthinkable, and I simply make that comment because it perhaps reflects the potential reality of the position on the merits of the claim”.

Having decided that the claimant had knowledge in 1997 or 1998, the learned judge then considered whether the limitation period should be dis-applied in accordance with section 33 of the Act. The section, in its relevant parts, is as follows: -

“33.

Discretionary exclusion of time limit for actions in respect of personal injuries or death

(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, 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—

the length of, and the reasons for, the delay on the part of the plaintiff;

On behalf of the claimant, it was acknowledged that the Court’s view as to the exercise of its discretion depended on its findings as to the claimant’s date of knowledge but it was contended that the Health Authority has not been prejudiced because the relevant treating doctors have been traced and the evidence of the only untraceable doctor Mr Shafquat (who obtained the claimant’s consent for the first operation) is unnecessary because Mr Lock acknowledged it was his practise to inform a patient of the procedures before a junior doctors obtained that patient’s consent. It was contended that the comprehensive medical notes are still available and as Mr Wilkes had no difficulty in preparing an expert report from those notes, they provide the necessary detail of the claimant’s treatment.

Citing Horton –v- Sadler [2006] 2 WLR 1346, counsel for the Health Authority recognised the difficulty in showing prejudice but contended that the claimant and her solicitor had not progressed the claim expeditiously (there had been no letter of claim and it took almost 2 years for proceedings to be issued), there would be the inevitable problems for witnesses who have to recollect events of over 10 years ago and there is the unavalability of Mr Shafquat. The learned judge, after referring to the provisions of section 33 (3) of the Act, said: -

“77.

Well in my judgment there are a number of issues. So far as (f) is concerned, I have indicated that under the limitation, the three year limitation period, one would have expected the claimant in this case to seek advice from the medics, from which I readily infer the situation would have been unfolded, giving rise to questions, and perhaps within a short period of time a claim, if necessary, or seeking legal advice if necessary

78.

I will deal with the prompt reaction, because in my judgment there is criticism made by the defendant’s counsel Mr Colin in his skeleton argument about the fact that once this had emerged the claimant’s solicitors really did not get on with it and I have to say there is, in my judgment, some substance in that. Whether it was caused by Legal Aid or whatever I do not know but he also submits that there is prejudice to the defendant in this case because of the delay.

79.

Mr Wright for the claimant said there was no prejudice because all the treating doctors had been located. Well that is right, but we are dealing as well with the issue of consent, and according to the consent on the second occasion, the claimant was signing to the effect that she had in fact been given all the options. As I said in my judgment, I did not anticipate she read the small print, but that was signed by a doctor called Shenaun who has not been traced.

80.

Mr Collin also submitted that the X-rays are probably destroyed because that is the usual course of action and I agree with his submissions rather than those of Mr Wright that in fact that would be valuable material because one is starting with the building blocks of these operations as to what should have been done in the first place and doctors would be no doubt commenting, should the matter have gone to trial on the treatment that was presented.

81.

And there is of course the other doctor who signed, I think who signed one of the other consent forms. He has not been traced either, and he is Mr, I think, whose name escapes me for the moment. But the fact in my judgment is that the hospital have got some difficulty. Mr Lock, who did his best with the notes was saying in terms he could not remember a great deal about this case, and it seems to be that there would be prejudice to the defendants, and in my judgment the (b) and (c) of the 33 (3) are applicable here.

82.

But it seems to me that the difficulties have been compounded by the failure to get on with it by the claimant’s solicitors. She sought advice, it is quite clear, after the meeting on the 14 October 2003 with Mr Price. The fact is, according to Mr Colin’s criticisms that they were saying to the claimant, please get on with this, and pestering, rather than the claimants making the running. As I say, whether it is problems with the Legal Aid or whatever I do not know, but those criticisms made in paragraph 4 of his skeleton are, in my judgment, of some substance. Solicitors have got a duty to get on with cases, particularly where limitation is an issue. The purpose of the Limitation Act is to ensure matters are tried close to event so that memories are not altogether wiped out and we are not having to rely perhaps on a paucity of evidence when a more generous amount would have been available had it been nearer the time.

83.

In my judgment the claimant and her solicitors have not acted with reasonable expedition. There are other matters which I have referred to specifically but it seems to me that in those circumstances it is not appropriate for me to exercise my discretion under section33.”

There was an additional point taken by Mr Colin on behalf of the Health Authority relating to the late service of the particulars of claim which I shall consider that at the end of the judgment. [see paragraph 28 below]

The Appeal

In the course of her submissions, Mrs Coe referred me to the headnote to Horton –v- Sadler above, which reads: -

“On its true construction section 33 of the 1980 Act conferred a wide and unfettered discretion empowering the court to dis-apply the application of section 11 where it appeared equitable to allow an action to proceed, having regard to the degree to which the parties would be prejudiced and taking into account all the circumstances of the case and the matters listed in section 33 (3)”.

She also cited the observations of Lord Hoffman at pargraph 44: -

“… The practise of the Courts has been regularly to exercise discretion in favour of the plaintiff in all cases in which the defendant cannot show that he has been prejudiced by the delay. No matter how negligent the claimant’s solicitors may have been in the simple skills of keeping a diary, the plea of limitation which the statute confers upon the defendant is, in the absence of forensic prejudice, described as a windfall of which he can fully be deprived.”

Lord Hoffman said those observations reflected “many years of settled jurisprudence” (paragraph 49).

On behalf of the Health Authority, Mr Colin submitted that the decision of His Honour Judge Mitchell was neither wrong in law nor wrong in principle, that he had the benefit of seeing and hearing the witnesses called to give evidence at the trial of the preliminary issue, and it cannot be argued that his findings of fact were neither reasonable nor logical. Mr Colin submitted that the judgment indicates “a pragmatic, correct and robust approach to this case by an experience Circuit Judge”.

I reject the complaint that the learned judge should have made a more specific finding as to the claimant’s date of knowledge – in some cases that is necessary but there are cases, particularly where the issue is one of constructive knowledge, when the evidence does not make that possible. I do not accept that, having decided that the claimant’s date of knowledge was in 1997/1998, the learned judge should have limited her knowledge to such facts as would have revealed upon enquiry that there were alternatives to amputation and that her date of knowledge of the need for shoe modification and to fit a toe spacer and of the failure to perform a scarf osteotomy were later. My conclusion is that once the claimant was put on enquiry which would have led to her actual knowledge that there had been alternatives to amputation surgery, it is probable that she would have received advice similar to that which she received later, first from Mr Price and then from Mr Wilkes. I agree with the learned judge’s conclusions in that regard. The real issue is whether the learned judge was correct in his conclusion that the claimant’s date of knowledge was in 1997/1998; for the reasons which follows, I have concluded he was not.

Before I consider the substance of the appeal, I have to express my disquiet and concerns about two parts of the learned judge’s judgment. First, I do not understand why he thought it necessary to distinguish between the authorities relied on by the claimant and those relied upon by the Health Authority (see paragraphs 10-13 above). The principles to be applied are well known – see the cited passage from the speech of Lord Mance above – and every case is fact sensitive. In fact, my view is that the factual situation in the present case, contrary to what the learned judge said, is similar to the factual situations in both Driscoll-Varley –v- Parkside Health Authority and Smith –v- West Lancashire Health Authority - in both those cases, the claimants underwent incorrect medical procedures. The impression is given (undoubtedly not intended by the learned judge), that he did not consider those authorities as relevant, when they were relied upon by the claimant for the statements of principle therein. I am also concerned that the learned judge considered at some length in the judgment the evidence as to whether the claimant was given proper advice by Mr Lock. Although the learned judge said that he was well aware that he was not deciding the issue of what advice was actually given, he said in terms that were he deciding it, he would prefer the evidence of Mr Lock. Again, while the impression was not intended by the learned judge, it may well be thought that his conclusions on the Limitation Act issue were coloured by those comments.

The learned judge’s findings that the claimant knew the operation had not been successful, that if she had raised her concerns with her GP or the orthopaedic team “the advice which had or had not been given would undoubtedly have been revisited” and that it was incumbent on her to seek further advice, in my judgment, are not supported by the evidence. He at no time addressed her evidence that, following the amputation, she was reassured that the pain would go and given no explanation as to why her bunion was returning or for the ongoing pain. She stated “I just thought this was something that I simply had to live with. I did not think to question the doctors in this regard or as to whether I had been provided with the appropriate treatment. I was in the doctor’s hand’s, I trusted them and thought that they knew what was best for me”. The learned judge does not appear to have had regard to the evidence of Mr Lock that he had told her at the time of the first operation that there was a 10/15% risk of failure. That information may well have influenced the claimant in her approach to the doctor’s following the second operation. The learned judge referred to the claimant’s evidence that she was very angry that she had had two operations which were not successful and said that in his judgment there was every reason for her to go back to the medics. He acknowledged that that is what she did, by regular attendances upon her GP and references to the orthopaedic clinic. He accepted her evidence that she was given an indication that they would be pleased to see her again and to discuss matters further. In my judgment, it must follow from those findings that in her discussions with her GP and members of the orthopaedic team nothing was said to put her on notice that there had been alternatives to amputation surgery. In the circumstances, I consider that the learned judge was wrong to reject the claimant’s submissions that had she voiced her concerns, the matter would not have gone anywhere. The learned judge did not direct himself that he should have regard to the claimant and her attitude towards the doctors who were treating her. I have concluded that the learned judge did not have sufficient regard to the claimant’s evidence that she went along with the doctors because she didn’t know any different, that she assumed that it would take time for her condition to resolve and that she had no thought of litigation.

I am satisfied that the learned judge’s conclusion that the claimant had knowledge in 1997/1998 was not a reasonable conclusion on the evidence. It overlooked the evidence of the claimant to the effect that her health was in the doctor’s hands, that she went along with what they said, that had an alternative to amputation been offered she would have taken it, that she was under the impression that it would take time for her condition to settle, that whilst she was aware the operations had not worked, she had learned to cope with the pain and she was interested in getting resolution for her pain rather than questioning why the previous surgery had not worked. He failed, in particular, to address how this claimant viewed doctors and the advice she was receiving. He failed to have regard to how her circumstances would have changed when she moved to Staffordshire and came under the care of different doctors. The evidence of Mr Mark Price was to this effect – she was first referred to the podiatric surgery department on 13 March 2002 with ongoing concerns about her left foot and with a history of previous surgery. She was seen on 19 January 2003 when she was complaining of pain and following a period of conservative care was seen by Mr Price on 13 October 2003. The notes record that at that consultation the claimant said that she was going to contact solicitors regarding the possibility of legal action. In his evidence, Mr Price said that it was at that meeting that options other than amputation were discussed. He also said “from what I can recall, she never really mentioned much about the surgery that she had had, she was always actually quite complimentary about the treatment that she had in Kent in terms that she was well looked after and cared for and they were all very nice” (my emphasis). In my judgment the reasonable and proper conclusion in this case was that her first date of knowledge was at that meeting on 13 October 2003. I observe that the learned judge made no reference to the evidence of Mr Price in his judgment.

I can consider the section 33 issues briefly. Had I upheld the learned judge’s decision on the limitation point, I would nonetheless have exercised the court’s discretion to dis-apply the limitation period. Any delay, even within the limitation period, may cause prejudice but the court is concerned to ensure fairness. Mr Colin conceded that it is difficult to show prejudice and I am not persuaded he has demonstrated any/or sufficient prejudice which would prevent the exercise of the court’s section 33 discretion. I accept the submissions of Mrs Coe (see paragraph 17 above).

Mr Colin submitted that the claim is in any event time-barred as a result of the late service of the Particulars of Claim and the claimant’s non-compliance with CPR 6.7 which provides that a document served by fax which is transmitted after 4pm is deemed to have been served on the business day after the day on which it was transmitted. On the evidence, the Particulars of Claim and Preliminary Schedule of Loss were transmitted at 1601 hrs on 6 October 2006 (a Friday) and so are deemed to have been received on the following Monday and out of time.

The history of this aspect of the case is set out in the witness statement of Fiona O’Neill. The claim form was issued on 31 May 2006 and by a letter dated 13 June 2006, the claimant sought the defendant’s agreement to an order enabling the claimant to serve the Particulars of Claim, Schedule of Loss and supporting medical evidence by 6 October 2002. The defendant agreed and signed a consent order to that effect. An application on 3 October 2006 for a further extension of time was refused and so it was that the Particulars of Claim and Schedule of Loss were received by fax at 1601 hours on 6 October 2006.

Mrs Coe submitted that the defendant must be deemed to acquiesced in the late service of the Particulars of Claim because no point was taken at the time, no point was taken on 29 June 2007 when the Deputy District Judge gave the claimant leave to amend her Particulars of Claim and no point was taken in the Defence which was issued on 12 July 2007. On any view no prejudice to the defendant has been demonstrated. My conclusion is that if the defendant’s acquiescence is not of itself sufficient to deprive them of the right to make this application, I would exercise the court’s powers under CPR 3.3 to grant the necessary extension of time of 72 hours for the service of the Particulars of Claim. This was a technical point taken, as I understand it, for the first time at the appeal hearing and in my judgment has no merit.

For all the above reasons the appeal is allowed.