Under the Limitation Act 1980 an injured Claimant has three years in which to commence legal proceedings to pursue a claim. Claims often settle by negotiation before the expiry of three year period and in those cases it is not necessary to issue Court proceedings.

 

When does the three year period commence? The rule is that the three year period starts to run from “the date on which the cause of action accrued” or  “the date of knowledge (if later) of the person injured“. Often the start date is obvious as the injured person knows when the accident was. But in some cases, such as medical negligence cases it is not always so obvious. For example if surgery is carried out negligently, then negligence is the cause of action, but a patient might not be aware that the surgery was carried out negligently until some time later which might be more than three years from the date the surgery was carried out. This is why the Limitation Act provides that the three year period is from the “date of knowledge” so that if you are not aware of a claim until some time later then the start date commences from the date of knowledge, rather than the date that the negligent surgery was carried out.

 

What then if the three year limitation period is missed? In these circumstances the Court has a discretion in personal injury claims to still allow the action to proceed. The court will take a number of factors into account when deciding whether to exercise its discretion.

 

In a recent High Court judgement in the case of The Estate of Mr Mohammed Mossa v Babara Wise [2017] EWHC 2608 )qB), the Court considered the factors to be take into account when deciding whether to exercise its discretion to allow the claim to proceed after the three year time period had passed.

 

The basic facts of the case were that Mr Mossa was a consultant gynaecologist and operated on Barbara Wise (the Claimant) in January 2007. In July 2011 she was investigated for complications and in September 2011 underwent corrective surgery. She had further surgery in January 2013, but has ongoing residual symptoms. In December 2014 an expert medical report was obtained and a claim was issued against Mr Mossa on 17 July 2015 alleging that he failed to obtain proper informed consent to carry out the procedure; he failed to provide adequate information about a surgical product used in the operation (the product had eroded and the corrective surgery was carried out in September 2011); and that he failed to advise properly as to alternative treatment options.

 

When the Claim Form was served Mr Mossa was sadly in the final stages of a terminal illness and he died shortly after. The claim continued against his estate.

 

A limitation defence was raised arguing that the claim had been issued after the expiry of the three year limitation period. The defence argued that the cause of action arose in January 2007 and that the Claimant’s date of knowledge was no later than 22 August 2011. The Claimant responded contending that her date of knowledge was not until December 2014 when the expert medical evidence was received. In the alternative if it was found that her date of knowledge was earlier and the that three year limitation period had expired then she asked the Court to exercise its discretion to allow the claim to proceed.

 

The Court found that the date of knowledge was September 2011 and that the claim had therefore been brought outside the three year limitation period. The High Court Master at an initial hearing concluded that looking at all the circumstances of the case and balancing the prejudice on each side he would exercise his discretion to allow the claim to proceed.

 

The Defendant appealed that decision and at the appeal the High Court considered the following factors were relevant. The potential prejudice caused to the Defendants is stark, Mr Mossa died shortly after the proceedings were served and had no opportunity to provide his legal team with his response to the allegations. Had the claim been brought by September 2014 (ie 3 years from the date of knowledge) the probability is that he would have been able to provide information and his responses. The High Court Master when hearing the original arguments had not ignored this prejudice resulting from being unable to seek evidence from Mr Mossa.

 

The burden was on the Claimant to show that it would be equitable to exercise the discretion in her favour.

 

It was first necessary to consider the length of the delay and the reasons for it before looking at the impact on the Defendant’s evidence. The Court identified the prejudice to the Defendant and the detrimental effect of the cogency of the evidence, but concluded that the fact of the surgeons  death could not be determinative of the issue in the claim. The Court went on to examine the context of the claim and the availability of other evidence to address the issues which were likely to arise at trial. The crucial question is whether it is still possible to have a fair trial of the issues on the available evidence. There was a careful analysis by the Court of the evidence still available and regard was had to the likely position had the claim been brought in time. Mr Mossa was unlikely to have any detailed recollection of the Claimant or his dealings with her. The Court had weighed up all the evidence and evidential gaps resulting from Mr Mossa’s death before reaching the conclusion that a fair trial was still possible.

 

The Court was required to have regard to the prejudice to the Claimant if she was unable to proceed and it recognises that there needs to be a balancing of the relative prejudice a decision either way cause to each party. In the exercise of the Court’s discretion the claim would be allowed to proceed.