Mossa v Wise

This is an appeal brought by the Defendant against an Order made by Master Cook on 10^th May 2017 whereby the Claimant was allowed to pursue her claim for personal injury pursuant to section 33 of the Limitation Act 1980 (‘the Act’) and the Defendant was ordered to pay the Claimant’s costs of the determination of limitation as a preliminary issue.

For convenience I shall refer to the Appellant Defendant as the Defendant and the Respondent Claimant as the Claimant.

Mr Mossa was a consultant gynaecologist who practised at Benenden Hospital in Kent. In January 2007, he performed surgery on the Claimant to treat her urinary stress incontinence. He used TVT Secur Gynaecare vaginal tape, a product manufactured by Johnson & Johnson.

It is the Claimant’s case that, while she initially had an improvement in her symptoms, she suffered a relapse after about 6 months. She then developed increasing pain and other unpleasant symptoms. In July 2011 she suffered sudden heavy vaginal bleeding and pain. Investigations revealed that she had suffered erosion of the TVT tape into the vagina. She underwent corrective surgery in September 2011. Subsequently, in January 2013, she had a hysterectomy and colposupension procedure. She has ongoing residual symptoms.

On 2^nd September 2014, the Claimant commenced a product liability claim against Johnson & Johnson. That followed from her hearing of a case in Scotland involving the use of TVT tape which led her to make enquiries and discover that the same product had been used in her case. She instructed solicitors and an expert medical report was obtained in December 2014. Following consideration of this evidence in conference with counsel, a claim was issued against Mr Mossa on 17^th July 2015, alleging that he failed to obtain proper informed consent to the procedure. It is said that he failed to provide adequate information about the TVT product and the procedure used and that he failed to advise properly as to alternative treatment options.

The claim form was served on 24^th July 2015, I am told at Mr Mossa’s home address. Sadly, he was by then in the final stages of a terminal illness. His wife forwarded the proceedings to Benenden Hospital but Mr Mossa died a short time later without being aware of them.

A defence was served on behalf of Mr Mossa’s estate on 30^th March 2016 and raised a limitation defence. In essence, the Defendant said that the causes of action in tort or contract accrued in January 2007 and that the Claimant’s date of knowledge was no later than 22^nd August 2011, therefore the claim was statute barred. The Defendant applied for limitation to be tried as a preliminary issue and directions to that effect were given.

By way of a Reply dated 3^rd June 2016, the Claimant contended that her date of knowledge was not until December 2014, when the expert medical evidence was obtained. In the alternative, she asked the court to exercise its discretion pursuant to section 33 of the Limitation Act 1980 to allow the action to proceed.

The hearing of the preliminary issue came before Master Cook on 22^nd March 2017. He heard evidence from the Claimant, who was cross-examined and also considered the statement of the Defendant’s witness, Miss Davies, together with relevant extracts from the Claimant’s medical notes.

In a reserved judgment dated 2^nd May 2017, Master Cook found that the Claimant’s date of knowledge was September 2011. (I note that there is an error at paragraph 36 of the judgment so that there is a reference to September 2014 but it is apparent from other parts of the judgment that this should read 2011). The Claimant does not challenge the finding of the Master that her date of knowledge was September 2011. It follows that it is no longer in dispute that the claim was brought outside the limitation period as provided for by sections 11 and 14 of the Act.

Having reached that conclusion, Master Cook went on to consider the exercise of his discretion under section 33 of the Act. This is dealt with at paragraphs 38 to 57 of his judgment. His conclusion was that, looking at all the circumstances and balancing the prejudice on each side, it would be equitable to allow the claim to proceed.

It is the Defendant’s position that the Master’s decision in relation to the exercise of his discretion under section 33 was wrong and ought to be set aside.

The Master then had to decide on the appropriate costs order in light of the outcome of the hearing of the preliminary issue. This was dealt with at a further hearing on 10^th May 2017. The Claimant’s position was that she had succeeded in relation to the issue of limitation and therefore should have her costs. The Defendant contended that, although the Claimant had succeeded in relation to section 33, she had lost on the issue of date of knowledge and therefore the court should make an issues based order and order the Defendant to pay the Claimant’s costs of the section 33 issue but order the Claimant to pay the Defendant’s costs of the date of knowledge issue.

Both Counsel provided clear and well-focused submissions, both in their Skeleton Arguments and orally at the hearing of the appeal. There is no dispute about the legal framework to be applied.

The Master was exercising a discretion both when he decided to allow the claim to proceed under section 33 and when he made the costs order that he did. In accordance with the well-known principles set out in Tanfern Limited v Cameron MacDonald [2000] 1 W.L.R. 1311 at paragraph 32, the appellate court should interfere only where the decision at first instance has “exceeded the generous ambit of discretion within which a reasonable disagreement is possible.” I am, of course, conscious that I am confined to reviewing the decisions of the Master and am not making the decisions myself afresh.

Looking at the decision under section 33 first, Ms Ferguson makes it clear in her Skeleton Argument (paragraph 13) that there is no challenge to the Master’s summary of the legal framework to be applied. In those circumstances, the appellate court will be very slow to interfere with the exercise of discretion under section 33, that being a discretion which is unfettered, see Nash v Eli Lilly & Co. [1993] 1 W.L.R. 782. However, the Defendant says that Master Cook “failed properly to take into account material factors and gave inappropriate weight to other factors such that the exercise of discretion resulted in a decision that was wrong/exceeded the generous ambit within which a reasonable disagreement is possible.”

There can be no doubt that this is a case where the potential prejudice to the Defendant resulting from the delay in bringing the action is particularly stark. Mr Mossa died just after the service of the proceedings in July 2015 without having any opportunity to give instructions upon them. Had the claim been brought by September 2014, the probability is that he would have been able to provide instructions. Realistically, the trial could not have come on before his death but he might have been deposed and could probably at least have provided a witness statement. Had the Master ignored the prejudice resulting from being unable now to seek evidence from Mr Mossa, he would plainly have fallen into error. However, he did not do so.

Having correctly set out the relevant statutory provisions, the Master accurately (it is agreed) summarised the allegations against Mr Mossa. He reminded himself that the burden of showing that it would be equitable to disapply the provisions of section 11 of the Act rested upon the Claimant. He then worked through the factors to which the court is directed to have particular regard to under section 33(3). He first considered the length of the delay and the reasons for it before looking at the impact of the delay on the Defendant’s evidence. At paragraph 44, he said this: “I readily accept that the fact of Dr Mossa’s death is a matter which would cause both prejudice and have a detrimental effect on the cogency of the evidence …”

Having clearly identified then the prejudice to the Defendant and the detrimental effect on the cogency of the evidence, the Master, correctly in my judgment, said that the fact of Mr Mossa’s death could not be determinative of the issue and went on to examine the context of the claim and the availability of other evidence to address the issues likely to arise at trial. He expressed the crucial question as “whether it is still possible to have a fair trial of the issues on the available evidence.” It is not suggested that this was wrong. Rather, what Ms Ferguson contends is that when considering section 33(3)(b), he did not properly balance the relevant factors. The criticism is that too much weight was given to some matters whereas too little account was taken of others. The Grounds of Appeal conveniently summarise how the balancing exercise is said to have been wrong. In oral submissions, Ms Ferguson suggested that, had the Master given proper weight to the various factors on both sides, this would not have led to a delicate balance where there was a difficult decision to be made but rather would have pointed one way, that is to refusing to allow the claim to proceed.

As the case against Mr Mossa is founded on lack of properly informed consent, the principles set out in Montgomery v Lanarkshire Health Board [2015] UKSC 11 will apply. This, says Ms Ferguson, puts consideration of the dialogue between doctor and patient at the heart of the case and means that an informed consent case is one where the oral evidence of the clinician is likely to be of very great importance.

I am satisfied though that Master Cook had the principles in Montgomery firmly in mind when looking at the prejudice caused by the delay. It seems to me that he conducted a careful analysis of the evidence still available and had regard to the likely position had the claim been brought in time.

The Master acknowledged that the Defendant’s evidence was less cogent without the availability of Mr Mossa. However, he considered that it was unlikely that he would have had “any detailed recollection of the Claimant or his dealings with her”. That seems to be a fair observation based upon experience of other clinical negligence actions and the evidence of Mr Mossa’s former colleague Miss Davies, who had seen the Claimant at an earlier consultation but confirmed she had “no independent recollection of Mrs Wise”. The parties took me through various considerations as to what Mr Mossa may or may not have been able to say. It is right that he could have given evidence as to his usual practice and might have been able to give some evidence relevant to causation based on his observations of the Claimant. The truth is we cannot know whether he would have had any recollection at all beyond what was recorded in the medical notes. However, the conclusion that it was ‘unlikely’ (not ‘impossible’) that he would have had a detailed recollection cannot properly be challenged on appeal. In acknowledging that the Defendant was prejudiced by the death of Mr Mossa, plainly the Master did have in mind that he was likely to have been able to give some evidence going beyond the records.

It was also perfectly fair, in my view, to observe that Mr Mossa would not have been able to give evidence at trial. Of course, there was the theoretical possibility of him being deposed before then. Perhaps more likely, a statement would have been taken and admitted under the Civil Evidence Act 1995. Again, the Master had clearly acknowledged that the Defendant’s evidence would be less cogent after Mr Mossa’s death. I do not believe it was incumbent on him to spell out all the possibilities as to how additional evidence might have been placed before the Court and the detail as to what that evidence might have been.

It is said by the Defendant that the Master gave too much weight to the evidence that was available. At paragraph 44 of his judgment, he said “It is also relevant that there is a written record of the consent procedure.” Ms Ferguson says that the consent form is not good evidence of the dialogue needed to obtain informed consent. The documentary evidence does not have to be considered in isolation though. The Defendant had also obtained evidence from Miss Angharad Davies. She had been the consultant in charge of the Continence Care Clinic before Mr Mossa. He took over upon her retirement. The Claimant had originally been seen by her. She is able to provide some evidence as to general practice within the unit and to put the consent form completed by Mr Mossa into context. The Master had also heard oral evidence from the Claimant. He found her to be a credible and truthful witness. He noted that her evidence broadly accorded with that of Miss Davies and that within the records. He also recorded evidence from her as to the consent procedure that went beyond the records. Therefore, he clearly had in mind all the factual evidence. It is relevant to bear in mind that medical professionals are under a duty to keep accurate clinical notes. It would be difficult for a doctor to allege that he had provided significant information by way of dialogue which went well beyond what was recorded.

Ms Ferguson suggested that the Master gave too much weight to the availability and effect of independent expert evidence in relation to the issue of consent. She said that this could establish what should have been said but could never ‘plug the gap’ in relation to what was in fact said. While this is fair comment, I do not believe the Master was suggesting that expert evidence would determine the factual issue of what the Claimant was told. At paragraph 46 he said “the issue which will arise at trial will probably depend primarily on an assessment of the relevant expert evidence and the implications of the new case law on consent.” In my judgment, Master Cook was setting out the framework into which the factual evidence was to be presented. Having properly identified how the available evidence fitted into that framework, he said at paragraph 53: “The crucial question … must be whether it is still possible to have a fair trial of the issues on the available evidence.”

In my judgment, he was right to ask that question. He may not have specifically set out each and every consideration he made. However, that is not required. The judgment is sufficiently clear and thorough as to make it clear that the Master had weighed all the evidence and the evidential gaps resulting from Mr Mossa’s death before reaching the conclusion that a fair trial was still possible.

The Master was entitled, indeed required, to have regard to the prejudice to the claimant if she was unable to proceed. What is required under section 33(1) is a balancing of the relative prejudice a decision either way would cause to each party. The Master plainly recognised the careful balancing act he was required to carry out. He gave careful attention to the fact of Mr Mossa’s death and the impact on the cogency of the defence evidence. I do not accept he gave any inappropriate weight to the prejudice to the Claimant if she were not able to proceed with her claim. In those circumstances, I conclude that he properly exercised his discretion and there is no basis for interfering on appeal.

Turning to the issue of costs, that was another discretionary decision. The Master was invited by the Defendant to make an issue based order acknowledging that the Claimant had ‘won’ overall but had been unsuccessful on the date of knowledge issue.

Issue based orders have become increasingly common since the implementation of the Civil Procedure Rules. In A.I.E. Rediffusion Music Ltd v Phonographic Performance Ltd, Lord Woolf M.R., explained that the new rules contained a significant change of emphasis requiring courts to more readily make separate orders which reflect the outcome of different issues. The rationale was explained at 1522 H: “It is now clear that too robust an application of the “follow the event” principle encourages litigants to increase the costs of litigation, since it discourages litigants from being selective as to the points they take.”

A reminder was also given (at 1523 C) that an appellate court should be slow to interfere with a first instance decision on costs and should do so only when it is “shown that the judge has either erred in principle in his approach, or has left out of account, or take into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.”

It is of course accepted that the Claimant succeeded overall on the issue of limitation which had proceeded as a preliminary issue. It is not uncommon in personal injury actions for defendants to reserve their position in relation to date of knowledge but nevertheless concede the limitation defence on the basis that it is open to the court to exercise its discretion under section 33. Had the Defendant taken that course no preliminary hearing would have been required.

The evidence which the Master heard from the Claimant was relevant to the exercise of his discretion under section 33. Knowing the circumstances in which she acquired her knowledge was relevant to understanding the reasons for her delay in bringing the claim.

Master Cook gave a relatively brief, ex tempore judgment on costs. That was entirely appropriate. It cannot sensibly be suggested that he did not have the relevant principles in mind when exercising his discretion. To pick over the precise detail of the wording of the judgment now would be unfair. It is perfectly apparent that he regarded the issues as being interconnected and not appropriate for the making of an issue based order.

I do not accept Ms Ferguson’s submission that the Master fettered his discretion by deciding that, in light of the overlap, the date of knowledge issue could not be described as ‘truly discrete’.

Ms Ferguson referred to the decision of Arnold J in Hospira UK Ltd v Novartis AG [2013] EWHC 886 (Pat) in which he suggested there were three questions to be asked: “first, who has won; secondly, has the winning party lost on an issue which is suitably circumscribed so as to deprive that party of the costs of that issue; and thirdly, are the circumstances (as it is sometimes put) suitably exceptional to justify the making of a costs order on that issue against the party that has won overall.” Her criticism of the Master’s approach was that ‘truly discrete’ was not the same as ‘suitably circumscribed’.

I do not consider that argument has any merit. In my judgment, the Master exercised his discretion in a perfectly sensible and straightforward way. He conducted the limitation hearing and had in mind all the evidence and submissions presented to him. As an experienced Master used to dealing with issues of costs, he considered that it would be difficult to assess the costs attributable to the date of knowledge issue as discrete from the section 33 issue.

In my judgment, the Master’s costs order was entirely appropriate. It was certainly one open to him in the exercise of his discretion.

It follows from the above that I dismiss this appeal both on the substantive issue and in relation to costs.