The case of Aderounmu involved a preliminary issue on limitation for a claimant who was alleged to lack the mental capacity to manage the litigation. The Court had to decide whether he was under a disability, if not when his date of knowledge arose, and if it was more than 3 years before the proceedings commenced, whether s.33 of the Limitation Act 1980 should apply so as to let the action proceed.
On the 23rd of November 2009, the Claimant suffered a stroke and serious neurological injury as a result. Four days prior, on the 19th of November 2009 the Claimant had consulted with his GP, the Defendant. It is accepted that during this consultation the Claimant was not speaking clearly.
The Claimant alleged the Defendant negligently failed to exclude a stroke; and failed to refer the Claimant for urgent investigation. The Claim was belatedly issued on the 10th of October 2017, just under 8 years from the date of the injury. In the Claimant’s Particulars of Claim, the Claimant asserted he was a protected party.
The Defendant disputed the alleged lack of capacity and averred that at all material times he had the capacity to conduct litigation with respect to the criteria established in the Mental Capacity Act 2005 (MCA). Consequently, the Defendant raised a limitation defence, averring that any cause of action accrued on or around 23rd November 2009, and that the action was almost 5 years out of time.
In response, the Claimant argued that should he be found to have had capacity; his secondary position is that he did not have the requisite knowledge for the purposes of s14A of the LA more than three years prior to the 10th of October 2017. Lastly, in the event the date of knowledge was adjudged to be more than three years, the Claimant sought the disapplication of the LA provisions by exercise of the court’s powers under s33 LA.
S2(1) of the MCA sets out the first test for capacity. A person lacks capacity if “at the material time” he is “unable to make a decision for himself in relation to the matter because of an impairment” or “a disturbance in the functioning of, the mind or brain”. If this test is satisfied, the second limb under s3(1) provides:
“For the purposes of s2, a person is unable to make a decision for himself if he is unable:
(a) To understand the information relevant to the decision,
(b) To retain that information,
(c) To use or weigh that information as part of the process of making the decision, or
(d) To communicate his decision…”
When considering the issue of capacity, the court followed the approach taken in Saulle v Nouvet [2007]. The court was not bound by expert evidence; it was at liberty to consider all the available evidence.
Master Cook found the principal issue to be the extent to which the Claimant could hold and retain information pertinent to his decision-making. Specifically, whether the despite the Claimant’s impairment in “expressive and receptive language he can retain information in order for him to make appropriate decisions in this litigation” (para 96).
Master Cook noted that no concern was raised about the Claimant’s mental capacity by treating health professionals familiar with the issue of mental capacity in patients following a stroke during either his four-month hospitalisation or subsequent 9 years. Master Cook also accepted evidence from the Defendant’s psychiatry expert that during this time the Claimant apparently made decisions about complex issues, including immigration, housing, and pecuniary matters. Master Cook cited entries from the Claimant’s GP records in which he asked for early repeat medications as evidence of his capacity to plan by identifying a potential problem and taking remedial steps to address it.
In conjunction, with an expressed preference in favour of the Defendant’s experts, and significant factual evidence illustrating that the Claimant appeared not to lack capacity, Master Cook was satisfied the that the Claimant was, with support, able to deal with issues and decisions concerning the liability of the GP, was able to give instructions about his losses so as to enable a particular of damages to be drafted, and was able to weight the pros and cons of settlement offers. In light of these factors and in the absence of any material deterioration, Master Cook was satisfied the Claimant “had capacity to litigate at all material times” (para 99).
The Defendant relied upon entries from the Claimant’s medical records to demonstrate he was aware of the alleged failure by the Defendant to refer him for treatment in December 2010. Master Cook found no indication that the Claimant was prevented from pursuing his complaint; rejecting the submission that the Claimant could not be fixed with constructive knowledge at any time prior to late 2016 early 2017.
The Claimant’s notes in 2010 recorded that he felt the Defendant had “destroyed [my] life” and these were relied upon by Master Cook as demonstrating knowledge that his injury was attributable to an omission on the part of his GP and that “this was probably a breach of duty” (paras 101, 107). Master Cook consequently found the Claimant had actual or constructive knowledge for the purpose of s14 LA no later than the 20th of December 2010.
Finally, Master Cook turned to the application of s33 LA in which the court had to “balance the prejudice to the Defendant by losing a limitation defence” with “prejudice to the Claimant caused by the loss of the action” (para 109). When considering the length of and reasons for the delay by the Claimant Master Cook accepted the delay in contracting solicitors until January 2017 was explainable by a combination of the Claimant’s Christian principles; and immigration litigation finding there to be a difference between “making a complaint to the GP…and taking legal advice to bringing a civil claim” (para 111).
Master Cook did not find the cogency of the evidence at trial would be significantly affected by delay; noting that the medical records remained “readily available” (para 114) and that the defendant GP had prepared a statement detailing her recollection of contact with the Claimant. Finally, although noting that taking no steps for approximately seven years must count against the Claimant and that there was a degree of over-exaggeration in the Claimant’s cognitive impairments, on balance Master Cook adjudged that such exaggeration did not “go to the merits of the claim and is easy to discern”.
Considering the overall prejudices to both parties, Master Cook considered that the balance fell in favour of the Claimant. Satisfied that a fair trial of the issues was possible Master Cook adjudged it would be equitable to allow the action to proceed.
Nathan Tavares
Nathan Tavares QC, a barrister in Outer Temple’s clinical negligence team, comments on the case as follows:
There are no novel points of law or legal principle in this case, but it is a good example of the application of the Mental Capacity Act in action with a brain injured claimant with a complex presentation. It also demonstrates how the court currently approaches limitation issues. Master Cook found the expert evidence to be of limited assistance in determining the Claimant’s capacity. He was highly critical of the joint statements, which were overly long and too legalistic asking many questions which were nothing more than cross examination or improper attempts by the parties to advance their position.
Of the 41 questions posed to the neuropsychology experts, he found that only about two were of assistance to him in understanding the issues on which they were agreed, upon which they disagreed, and the reasons for their disagreement. His criticisms echoed those Of Yipp J. in Saunders v Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 who had to deal with a 60-page joint statement which did nothing to narrow the issues. Practitioners and experts need to remember that joint statements are meant to be for the benefit of the court and their function is not as a proving ground for parties’ respective cases.
Where the court had preferred one parties’ expert over another it was clear that this was because the expert had considered the available factual evidence more thoroughly in forming his/her view – evidence such as documents relating to the Claimant’s immigration case and all of his medical records. This is a reminder that it is necessary to ensure that one’s experts have seen, and if necessary commented on, all of the relevant documentation. However long an expert spends with a claimant during an assessment, it can only be a snapshot, so a review of historical records can be invaluable. Any expert who has not shown an adequate analysis of available evidence is at an immediate disadvantage as compared with the expert who has.
The evidence which most assisted Master Cook’s determination of capacity was the factual (mostly documentary) evidence relating to what the Claimant had been doing and coping with since the stroke. This demonstrated a relatively high level of capacity to manage his affairs and, indeed, to instigate complicated immigration appeals. As with any claimant’s mental capacity, the most probative evidence is how they cope day to day in the real world, and the Master analysed this evidence in detail in reaching his conclusion. Practitioners need to ensure that as much “real world” evidence as possible is available for the experts and the court to consider.
Having determined that the claimant had capacity and that the claim was out of time, the issue for the court to determine was s.33 of LA. The more recent authorities on this issue stress the importance of addressing the extent to which it is still possible for a fair trial to take place, rather than taking a punitive approach because of the delay (see Cain v Francis [2008] EWCA Civ 1451). In most clinical negligence claims, the most important evidence (for the defendant at least) will come from contemporaneous medical records, whilst the medical practitioners concerned will often be unable to recall individual patients even a few months after the events in question. In such circumstances there may be relatively little prejudice from an extended delay to the proceedings and defendants may therefore need to be somewhat circumspect about taking limitation to a preliminary issue hearing even where they may win on capacity and date of knowledge.
