In Azam, Saini J dismissed the Defendant NHS Trust’s appeal, and as such the Claimant’s claim was allowed to proceed under s.33 Limitation Act. This was despite the fact that the claim had been brought c. 18 years outside the primary limitation period, and where the surgeon who had performed the index operation had died.
The Claimant underwent gynaecomastia surgery in March 1996, performed at the Defendant Trust’s hospital by a consultant surgeon, Mr. Duncan Campbell. In July 2017 the claim was issued, however, in the interim Mr. Campbell had died. The Claimant brought claims alleging that he had (1) been inadequately consented for the operation and (2) that the operation had been performed in a negligent manner.
In September 2019, at a limitation trial, HHJ Rawlings held that the Claimant’s actual date of knowledge, pursuant to s.14 Limitation Act 1980 was proximate to the date of surgery. Whilst the judge was not prepared to extend time to bring the consent claim (which may well have turned on the quality of evidence given by the Deceased surgeon), he was prepared to extend time under s.33 Limitation Act 1980 on the allegations relating to the quality of the surgery, which could be determined by reference to the notes and expert evidence, without any real prejudice to the Defendant (para 35).
The grounds for appeal in the present case centred upon an assertion that HHJ Rawlings had erred in his assessment of ‘forensic prejudice’ faced by the Trust in defending the claim. The unavailability of clinicians involved in Mr. Azam’s care in conjunction with the stagnation of Mr. Azam’s own evidence were according to the Defendant’s counsel not adequately factored into the judge’s assessment of limitation issues.
In response to the Defendant counsel’s submissions, Saini J rejected any notion of ‘forensic prejudice’, finding this submission tantamount to a disguised attack on judicial exercise of discretion (para 81). The judge reminded himself that “The appellate court’s role is to police a very wide perimeter and it will be rare that a judge who has exercised a discretion having regard to relevant considerations will have come to a conclusion outside that perimeter” (para 52). Where the judge had applied the law correctly, it was difficult to mount a successful challenge to the exercise of his discretion. As such, HHJ Rawlings conclusions under s.33 Limitation Act were allowed to stand.
Ben Bradley, a barrister in Outer Temple’s clinical negligence team commented on the case as follows:
At first blush, it seems surprising that a claim that was so historic was allowed to proceed. The case appears to demonstrate two core principles: (1) where a Defendant faces no real prejudice in defending a claim that would be otherwise out of time, it is open to the Court to exercise its discretion and extend time; and (2) where the Court does exercise its discretion in such cases, it will generally be difficult to challenge that exercise of discretion on appeal.
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