PI Brief Update

A Limitation Conundrum without a Precedent: Shaw v Maguire [2023] EWHC 2155 (KB) - Amy Lanham Coles, Temple Garden Chambers

30/09/23. The case arose out of a deeply unhappy set of circumstances, as well as an unhappy procedural history. The Claimant was the widow of a man who had died of metastatic melanoma in 2014. It was alleged he had died as a consequence of clinical negligence, as he had been seen in 2007 by a Consultant Pathologist (the Defendant) who had wrongly concluded - despite samples confirming otherwise - that his complaint was benign. This had come to light in November 2009, when the malignant melanoma returned. However, his condition had been treated immediately at that stage. Unfortunately and notwithstanding, the Deceased deteriorated dramatically in later years and became aware in June 2013 that his condition was terminal. He died on 9 January 2014. The Claimant then instructed legal professionals in November 2014 who failed to pursue her fatal accident claim, such that she pursued a professional negligence claim against her former solicitors. The result of this was an agreement that the Claimant’s former solicitors would indemnify her for pursuing an out of time fatal accident claim against the Defendant. Proceedings were therefore issued against the Defendant on 10 August 2022.

The issues to be determined (by reference to ss. 11, 12, 14 & 33 Limitation Act 1980) were:

• when the limitation period had expired;
• whether the court ought to (or indeed was able to) exercise its discretion under s. 33 Limitation Act 1980 so that the case was not time barred.

The Defendant’s primary position was that the relevant date of knowledge was November 2009 and therefore the Deceased’s cause of action had already expired at the time of his death in 2014 and therefore the Claimant could not pursue a fatal accident claim at all in line with s. 12(1) Limitation Act 1980. Further, the Defendant argued that there was no scope for the exercise of discretion under s. 33 Limitation Act 1980 in those circumstances as this was expressly prohibited by s. 12(1). The Claimant argued that her date of knowledge was either the date of death or afterwards, and therefore the limitation period expired at the earliest on 9 January 2017 (three years after the Deceased’s death). She contested the Defendant’s approach to the application of s. 33 Limitation Act 1980.

On the facts, Master Cook (“the judge”) concluded that the date of knowledge for both husband and wife could be taken as identical, because of their very close relationship (para 35). Further he determined that they had not considered the injury significant until they were told he was terminally ill and therefore he did in fact have vested in him a personal injury claim at the time of his death so the limitation period expired on 9 January 2017 (paras 52 & 53).

In light of the above findings, the judge’s conclusions on the interaction between s. 12(1) and s. 33 Limitation Act 1980 were obiter but nonetheless of note. The judge concluded the passage in Kemp & Kemp relied upon by the Defendant was misleading (para 51). There was not an absolute bar to the application of s. 33 in circumstances where an injured person with capacity dies three years or more after the accident or date of knowledge without commencing proceedings (paras 48 & 51). The judge agreed with the Claimant and ostensibly the commentary in Clerk & Lindsell (quoted at para 46). Essentially, s. 12(1) dictates that when considering if a Deceased person had a personal injury action vested in them at the time of their death one should disregard any hypothetical reliance on s. 33 they may have pursued. However, this does not prohibit claimants under related fatal accident claims seeking to rely on s. 33 and indeed that may be their only option (para 48).

The judge exercised his discretion under s. 33 by reference to the guidance given at para 42 of Carroll v Chief Constable of Greater Manchester [2017] EWCA Civ 199 (para 54). On these facts, he noted that the Claimant had instructed solicitors, but through no fault of her own the claim had become time barred (paras 56-60). He found her delay in instructing a solicitor from June 2013 until November 2014 entirely understandable, given these were her husband’s final months (para 74). He noted that delay could negatively impact the cogency of evidence but that in clinical negligence claims, where much turned on contemporaneous records and samples, liability would be primarily assessed by reliance on expert evidence, not the testimony of the Defendant (paras 63 & 77). Equally, the Claimant’s evidence would speak primarily to quantum and would also be heavily reliant on documentary evidence (para 64). He considered that whilst it was relevant that the Claimant may have a remedy against her former solicitors, this remedy was itself far from guaranteed and would necessarily be less favourable to the Claimant as it constituted a loss of a chance claim (para 73). He considered that the Claimant would have no adequate alternative remedy if he refused to disapply the limitation period (para 75). He noted that the Defendant had previously been informed that the case against her would not proceed but found that whilst this was relevant and significant, it was only one factor to consider. Accordingly and having undertaken a balancing exercise of all the relevant circumstances, the judge concluded it was equitable to disapply the statutory time bar.

The case is a welcome comment on the interaction between s. 12(1) and s. 33 Limitation Act 1980 where there is a lack of judicial precedent.

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