Case No: HQ03X03012
Neutral Citation Number: [2005] EWHC 531 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 05/04/2005

Before :

THE HONOURABLE MR JUSTICE HODGE
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Between :

	PETER FRANCIS MARTIN 	Claimant	
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	MR AMIR KAISARY
and 

THE ROYAL FREE HOSPITAL NHS TRUST	1st Defendant

Proposed Second Defendant	

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E.A.Gumbel QC & Henry Witcomb (instructed by Charles Russell Solicitors) for the Claimant
     Angus Moon  (instructed by Radcliffes LeBrasseur Solicitors) for the Defendant
Katie Gollop (instructed by Bevan Brittan Solictors) for the Proposed Second Defendant

Hearing dates: 23rd March 2005
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Judgment
The Honourable Mr Justice Hodge: 
1.	The Claimant, Peter Francis Martin was in 2000 Head of IT for a Life Assurance Company.   In the summer of that year he was diagnosed with cancer of the prostate.    He became a patient of Amir Kaisary, the First Defendant.   In October 2000 he was admitted as a private patient to The Royal Free Hospital in Hampstead, London NW3.   Mr Kaisary operated.   Mr Martin underwent a radical prostatectomy on 2 October 2000.

2.	At half past midnight on 3 October Mr Martin suffered a cardiac arrest.   He was resuscitated and had further surgery.   Sadly, although the prostate surgery was successful, as a result of the cardiac arrest Mr Martin has suffered serious and permanent brain damage and psychiatric damage.

3.	He now sues for negligence.   He issued proceedings against the First Defendant on 30 September 2003.   This was just inside the three-year time limit from the 3rd October 2000 the date when he suffered his cardiac arrest and so an obvious date to take as the date of the alleged negligence. He did not include The Royal Free Hospital NHS Trust as a Second Defendant.

4.	The Particulars of Claim allege that the Claimant suffered a cardiac arrest because he was not competently monitored after surgery on 2 October 2000.   The original Particulars of Claim allege against the First Defendant that he failed:

(a)	To treat the claimant with reasonable care and skill

(b)	To ensure that the claimant received competent medical and or nursing treatment and services whilst at the Hospital during surgery on 02.10.00 recommended and carried out by him and

(c)	 To ensure that the claimant received competent medical and or nursing treatment and services whilst at the Hospital on 02.10.00 and prior to 0030 on 03.10.00 particularly the treatment and services supervised by him and further

(d)	It was said the staff at the Hospital had care of the claimant in the course of their employment with or engagement by the First Defendant or they were held out as under his employment and or engagement and as a consequence the First Defendant is liable in respect of any negligent care of the claimant by those staff. 

5.	The First Defendant served a Defence on 21 July 2004.   He denied that he was responsible for the nurses and medical staff on duty in the hospital and alleged they were employed by The Royal Free Hospital NHS Trust (the Trust) even when they were attending to private patients.  Shortly thereafter, following the receipt of the Defence the Claimant applied to amend the Particulars of Claim to include the Trust as Second Defendant.   That application was made on 29 July 2004 and supported by a draft amended Particulars of Claim.

6.	It is said by the Trust that this proposed amendment was out of time.   More than three years had elapsed since the medical accident complained of.   The Claimant supported now by the First Defendant wishes to join the Trust as a Second Defendant.  The Trust says the claim is statute barred by the Limitation Act. Whether the claim can or should proceed against The Trust is the issue in this application. 

The Claimant’s Current Position

7.	The prostatectomy operation was completed at about 2.00 pm on 2 October 2000.   At some stage after the completion of the operation the Clamant began bleeding internally.   That bleeding was it appears unchecked and the Claimant will have lost a significant amount of blood.   At about 00.30 am on 3 October he suffered a cardiac arrest.   He was resuscitated by the medical staff at the Trust.   The First Defendant shortly thereafter performed a further operation and the internal bleeding was stopped.

8.	The prostatectomy was it appears in the long run successful.   However, as a result of the cardiac arrest the Claimant’s brain was deprived of oxygen.  Subsequent investigations have shown that he has suffered permanent brain damage by causing reduced cognitive function.   He has also suffered psychiatric damage and depressive illness.

9.	The Claimant went back to work for a period of approximately six months, initially part-time and then full-time between the early part of 2001 and July 2001.   He was unable to work at or to the level he had previously attained.   His employers have retired him on medical grounds his last salary payment being up to 1st November 2001.   The Claimant was born on 21 February 1946 and is now 59 years old.   He is no longer able to work but is in receipt of a pension from his permanent health insurance.

The Procedural Background

10.	The application to join the Trust by amending the Particulars of Claim was made by the Claimant on 29 July 2004.   The Claimant said that the claim against the First Defendant could not properly be carried out without adding the Trust under CPR19.5 (3)(b).   The Claimant also said the Trust should be added under CPR19.5 (4).   This requires a decision on the issue of limitation.  An application identifying the parts of the CPR relied on to justify the amendment was made by the Claimant on 16 September 2004.   That came before Mr Justice Simon on 23rd September 2004.    He rejected the Claimant’s application under CPR19.5 (3)(b).   He did not agree that the claim against the First Defendant might only be properly be carried out by adding the Trust.   The Claimant appealed that decision.   The Court of Appeal dismissed that appeal on 16 March 2005.  

11.	Mr Justice Simon had however on 23 September 2004 ordered a trial of a Preliminary Issue as follows:

 “Whether the claim against the proposed Second Defendant by the Claimant is barred by the provisions of Section 11 and/or 14 of the Limitation Act 1980 and if so whether the action should be permitted to proceed under Section 33 of the Limitation Act 1980”.

12.	In effect the Claimant is now seeking Orders that under Section 14 of the Limitation Act 1980 his date of knowledge be declared to be less than three years before the date of application and/or that the discretion in Section 33 of the Limitation Act 1980 should be exercised in his favour.   It is agreed between the parties that the limitation issue was crystallised by 5 August 2004.   If the Claimant can establish he did not know of his cause of action against the proposed Second Defendant until three years or less before that date his claim against the Second Defendant will not be barred by the Limitation Acts.   There remains the discretion under Section 33 Limitation Act 1980. Even if the claim is barred by section 11 of that Act the Court may nonetheless consider it equitable to allow the action to proceed.

Statutory Background

13.	Section 11(4) Limitation Act 1980 provides that the relevant time limit for actions in respect of personal injuries is three years from

(a)	the date on which the cause of action accrues; or
	
(b)	the date of knowledge (if later) of the person injured.

14.	The Act thereafter provides:

14.-(1) ……in sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts –

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence…or breach of duty; and

(c) the identify of the defendant; and

(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant……

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(3) For the purposes of this section a person’s knowledge includes knowledge, which he might reasonably have been expected to acquire –

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

15.	Further Section 33 of the Act provides….

	33(1)	If appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which – 
	
	(a) the provisions of  section 11 …of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this sub-section would prejudice the defendant or any person whom he represents; 

The court may direct that those provisions shall not apply to the action or shall not apply to specified cause of action to which the action relates…

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11,……

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant of the plaintiff’s cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; 

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

Mr Martin’s Evidence

16.	Mr Martin has filed two statements.   The first is dated 7 March 2004 and the second 14 September 2005.   He gave evidence before me.   His evidence, which I accept, is that after his operation in October 2000 he went back to work in January 2001.   He worked at first part-time for a month.   He then worked full time for six months.   He was unable to cope and a claim was made on his permanent health insurance.   He appears to have stopped actually working at the end of July or the beginning of August 2001.   He was fully paid by his employers until 1st November 2001 and thereafter was medically retired.

17.	I accept the claimant’s evidence that the first defendant explained to the claimant’s wife whilst he was still in hospital that the surgery had gone very well but Mr Kaisery inferred that the drug Heparin was the cause of the bleeding. I also accept his evidence that after his admission to the ward that evening he understood he was supposed to have been “specialled by my own nurse”. He continued to believe thereafter that he had been nursed by his own nurse and told his solicitors of that.

18.	It is clear that the claimant had bled internally after his operation was concluded.   That bleeding had not been noticed or checked.   It had led to the cardiac arrest. The claimant spent nearly three weeks in hospital in October 2000. The claimant’s wife regarded him as “not quite right” for some time after the operation.   However he went back to work in January 2001 thinking, “in time I would improve and get back to how I was before”.

19.	The claimant and his wife were working on the hypothesis gathered from the first defendant that the administration during or immediately after the operation of the drug Heparin had made him bleed.   They consulted the claimant’s GP, Dr Cameron, on 20 January 2001.   They followed that up with a letter asking for various information.  In particular the claimant said “I am also keen to know how much Heparin was administered, how it was administered and the number of units of blood I received.”   On 27 March 2001 the first defendant wrote to Dr Cameron sending a memorandum concerning the usage of Heparin, properly described as Enoxaparin.   The first defendant said, “This is the drug that I believe led to the bleeding problems I had with Peter Martin.” 

20.	The claimant’s evidence is that he saw other specialists at about this time.  Dr Perry’s report concentrated on the issues around blood clotting and the use of Enoxaparin. Dr Schapira gave an interim report suggesting an MRI scan was necessary. 

21.	On 26 June 2001 the claimant saw his GP and heard the results of the MRI scan that had been carried out in April of that year.   In evidence the claimant confirmed that when the scan was reported to him on 26 June 2001 and reference was made to an abnormal signal he was not sure what that meant although he knew he was not well by then but remained thinking that he would get better. He continued to believe then that the postoperative bleeding was caused by a reaction to Heparin. On his evidence it was not until he received expert evidence in March 2003 that he realised his cardiac arrest was due to haemorrhaging from the operation site and was not caused by Heparin.

22.	On 20 August 2001 the claimant was seen by Professor Schapira the neurologist who had conducted the MRI scan.   The results of that scan were explained to the claimant and he was referred to Dr Lloyd, a psychiatrist.   It was immediately after that that the claimant first consulted solicitors Portner & Jaskel in respect of investigating a claim. 

23.	In his first statement dated 7 March 2004 at paragraph 24, the claimant said he had been left to speculate about the true cause of the damage to him.   He described the process he went through as follows.

•	“I initially thought I might have been overdosed on Heparin.
•	For some reason I haemorrhaged into my peritoneum.
•	Then because I was not being monitored properly this was not detected.
•	As a result of my blood loss I collapsed and arrested.
•	Because I was not being monitored properly I was not resuscitated properly
•	As a result I suffered an anoxic infarction and consequent brain damage.”

24.	It was suggested to the claimant in evidence that he had adopted this line of thinking in effect prior to August 2001.  It was also put to him that in 2001 he thought the bleeding that he had suffered from was because of problems with the clotting of the blood.  He thought that was something to do with Heparin and not any observations by any nurses.

25.	I have considered the evidence and heard and seen the claimant.   I regard the process that he describes in his witness statement of 7th March 2004 as set out above as having been arrived at well after August 2001.   I am satisfied that certainly until after 5 August 2001, the limitation date agreed to by consent in these proceedings, the claimant himself believed that the reason for his ill health was something to do with the administration of the drug Heparin (Enoxoparin).   

26.	I also note that the claimant did not consult solicitors until 22 August 2001.  At that stage he made a telephone contact.   He had also immediately prior to that date on 20th August 2001 seen Dr Schapira, the neurologist, and had the effects of the MRI scan explained to him. I consider from that date he was aware that he had suffered some form of brain damage as a result of the problems arising from the operation of the 2nd October 2000.    

Evidence of Miss Prior

27.	Miss Prior is the solicitor who had conduct of this case at the time of the issue of the proceedings on 30 September 2003.   She had taken over the file when working at Portner & Jaskell at the end of June or the beginning of July 2003.   She left to join Charles Russell, the claimant’s current solicitors on 21 July 2003 and the file was transferred with her.    

28.	It appears and I accept that there was considerable difficulty in obtaining medical records from both the first defendant and the proposed second defendant.   There was confusion as to the distinction between private and NHS medical records.  There were clearly notes kept by both the first defendant in his capacity as treating the claimant privately and by the hospital.

29.	The solicitor’s evidence was that she had always been led to believe that the first defendant had employed a special nurse at the hospital during the time of the claimant’s operation. I am satisfied on the evidence that she had been told that by the claimant.   There was a scarcity of records at the Trust and with the First Defendant and the identification of parties had been difficult.   The medical records were sparse.  

30.	The solicitor herself had only taken over the file shortly before proceedings were issued.   She was unable to explain why no letter before action or any pre-action protocol had been served.   It appears clear that the solicitor instructed counsel to draft the Particulars of Claim and he included in those particulars all the information he had been able to acquire from the files and from the exchange of information between the parties.   It is however also clear that when she served those Particulars of Claim she was proceeding on the basis that the first defendant was responsible both for the conduct of the operation the claimant had undergone and contractually for providing competent medical nursing treatment services throughout the claimant’s stay in the hospital post-operatively.  She proceeded on the basis that the staff at the hospital who had care of the claimant were employed and/or engaged by the defendant. She had accepted the information given to her by the claimant that he had been “specialled by my own nurse”.   It is also now clear that these assumptions were mistaken.   

The Claimant’s Submissions

31.	It is the claimant’s case pursuant to section 14 Limitation Act 1980 that his state of knowledge in respect of his claim against the Trust depends on the date on which he ascertained that the injury he had sustained was significant; that the injury was attributable to the acts or omissions now alleged to be negligent and the identity of the defendant.

32.	The key damage to the claimant is the brain injury he suffered arising from and associated with his cardiac arrest.   On the claimant’s evidence in June 2001 he had reported to him the result of his MRI scan.   But he was not fully aware of the effects of this until they were explained by Professor Schapira on 20 August 2001.

33.	The acts and omissions which are now relied upon by the claimant as constituting breach of duty by the second defendant’s employees are the failures in monitoring the claimant’s condition, failure to see that the claimant was examined by a doctor and failure of the medical team to identify bleeding which required further emergency surgery to prevent a respiratory arrest.   These were all failures which occurred after the conclusion of the prostate operation and at times between 8.00 pm on 2 October 2000 and 0030 am on 3 October 2000.

34.	The claimant started investigating the reason for his internal bleeding, which he believed, was caused by the drug Heparin (Enoxaoparin).   It is his case that he could not be said to be aware that the acts or omissions in respect of monitoring might be the cause or partial cause of his injury.   Certainly he was unaware of those matters until after 5 August 2001.   Indeed it is his case that only on and after 23rd March 2003 was he aware of the position.   At that time he received the report of Professor Aitkenhead. Dr Stevens summarises some of Professor Aitkenhead’s conclusions as follows: “none of the observations made prior to the cardiac arrest (which occurred at 0030 hours on 03.10.2000) mentioned any change in Mr Martin’s abdomen, notwithstanding the fact that subsequently his girth has been noted to have increased and a substantial amount of free blood was found within the abdomen when surgery was eventually performed” This may well point to the acts or omissions of the proposed second defendant’s employees as constituting negligence.

35.	Further it is submitted on behalf of the claimant that the court is required, in analysing the claimant’s date of knowledge, to take into account knowledge that he might reasonably be expected to acquire “from facts ascertainable with the help of medical or appropriate expert advice which it is reasonable for him to seek” (section 14(3) Limitation Act 1980).   The claimant was until August 2001 at the very least seeking help focusing on the use of the drug Heparin.   His case is that it cannot be said that all he needed to know was that he had suffered a post-operative cardiac arrest.   Indeed his brain injury was not noted on the MRI scan until June 2001 and not reported to him in any detail until 22 August 2001.  His case therefore is that it was not reasonable for him to have ascertained through expert evidence by 5 August 2001 that the cardiac arrest was or might have been due to negligent acts or admissions of the staff of the proposed second defendant.
 
The Submissions of the First Defendant

36.	The first defendant, the surgeon Mr Kaisery, now supports the application to add the proposed second defendant as a party.   It is the first defendant’s case that the claimant probably had knowledge – either constructive or actual that the care of the second defendants employees had something to do with his problems when the claimant went to solicitors on or about 22 August 2001.   So he contends that the claimant did not have the requisite knowledge until after 5 August 2001 because the claimant thought he knew the acts or omissions he should investigate, the administration of the drug Heparin and its effects. But he was in fact “barking up the wrong tree” until after 5 August 2001.  The claimant believed until after that date that an adverse reaction to heparin was the cause of his ill health.   Therefore up until that date at least he satisfies the fourth principle in North Essex District Health Authority v Spargo [1997] 8 MED LR 125.

The Proposed Second Defendant’s Case

37.	The second defendant argues that the limitation period expired on 2 October 2003, three years after the date of the medical accident.   The claimant was able to issue proceedings in time, was able to formulate his claim in detail and did serve proceedings in time.   These of course were all against the first defendant.   The Trust argues that the only reason why a later commencement date of on or after 5 August 2001 is argued for is that the claimant’s advisers made a fatal mistake by failing to sue the Trust as well as the first defendant.   They agree that the key point is the date of knowledge for the claimant.   i.e. the date on which he knew “that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty” (section 14(1)(b) Limitation Act 1980).

38.	The proposed second defendant argues that the injury suffered by the claimant is attributable to the fact that bleeding continued unchecked for hours until he lost so much blood that he had a respiratory arrest and came close to bleeding to death.    It was not the fact that he started to bleed which caused the cardiac arrest but the fact that he was allowed to go on bleeding.   It is not accepted that the evidence shows that the claimant thought the bleeding was caused by Heparin. He knew before he left hospital that he had suffered a significant injury.

Findings on Section 11 and 14 Limitation Act 1980

39.	This is a preliminary issue concerning limitation.   But such evidence as I have seen points very clearly to the claimant being the unfortunate victim of a medical accident which has left him incapacitated to a significant degree and unable to work.   In October 2000 he had a successful prostatectomy but has been left with brain damage caused it appears by some negligent acts or omissions which took place either during the operation or after it or on both occasions.

40.	Had the claimant been an NHS patient rather than a private patient this limitation issue would not have arisen.   The Trust would have been the sole defendant variously liable for any negligence of any of the doctors or nurses involved in the operation or the after care of the claimant.   As the claim here appears to be well founded, one or more of three parties will be liable to meet all or part of the compensation likely to be due to the claimant.   The parties concerned are the first defendant supported by his defence union, the Trust or the claimant’s solicitors supported by their insurers.

41.	It is clear in my judgment that the solicitors were mistaken in not initially adding in the Trust as a second defendant.   They assumed, wrongly, that the first defendant was responsible both for any problems within the operation and for any difficulties that occurred thereafter on the basis that staff caring for the claimant were employed by or engaged by the first defendant. They believed the claimant had been specialled by his own nurse employed by or contracted to the first defendant. The evidence now shows that that was not the case.   Commonsense would suggest that even if the first defendant had employed a specialist nurse to care for this claimant there would have been other medical or nursing staff either involved or on call within the hospital who were highly unlikely to be engaged by or be employees of the first defendant.

42.	However, that mistake does not adversely affect the claimant’s position under the Limitation Acts in relation to the proposed second defendant if it can be shown that his date of knowledge for the purposes of Section 11 Limited Act 1980 was after the agreed date of 5 August 2001.
   
43.	The evidence points clearly in my judgment to the claimant firmly believing until 5 August 2001 that the ill health he appeared to be suffering from subsequent to his operation was associated with the use of the drug Heparin. He did not know what was wrong. The first defendant in his dealings with the claimant subsequent to the operation focused clearly on the Heparin issue.   It is correct that the claimant asked his general practitioner for a haematology report but this too would relate to issues around Heparin. He asked for observation records and nurses’ reports but at that time he believed he had been specially nursed by nurses provided by the first defendant.   That request does not in my judgment detract from the focus the claimant had from January 2001 on Heparin.   Indeed, at 27 March 2001 the first defendant continued to focus on Heparin medication in his correspondence with the general practitioner. The claimant had further tests. But at that time he was back at work. He believed he would get better. He did not know that he had suffered brain damage until the results of his MRI scan were explained to him on 20th August 2001 by Dr Schapiro.  

44.	Until the claimant went to see his solicitors in August 2001 he was in my view satisfying the fourth Spargo principle. As Brooke LJ said referring to the female claimant in that case “On the other hand she will not have the requisite knowledge if she thinks she knows the acts and omissions she should investigate but in fact is barking up the wrong tree” The claimant here thought he knew the acts or omissions he should investigate viz the use of heparin in his operation. He thought he had been specially nursed by nurses provided by the first defendant.   But he was in fact “barking up the wrong tree”.   Heparin was not the cause of the internal bleeding, which led to the cardiac arrest. As against the second defendant in my judgement he did not know in broad terms the facts on which any complaint against the Trust might be based until after 5th August 2001. It is not therefore necessary to decide if his actual state of knowledge for the purposes of this application was as late as March 2003. I conclude the claimant's date of knowledge for the purposes of his potential claim against the second defendant was after 5th August 2001. Therefore for the purposes of s11 (4) limitation Act 1980 I regard this claim against the second defendant as being in time. 

Section 33 Limitation Act

45.	There have been delays, procedural disputes and an appeal in this case.   None of this is the responsibility of the claimant personally.  He no doubt merely wishes to have it ascertained who is responsible for his undoubted injuries and to receive relevant compensation for them.   He is likely to consider that somebody is liable for his losses and he would suffer extreme prejudice were he unable to make any recovery.   

46.	The first defendant is by his defence denying liability in negligence or that he was in breach of contract.   He also denies liability in respect of the actions of other doctors or nurses.   It has also been suggested on his behalf that he will issue a claim for contribution or indemnity against the Trust using CPR part 20.   No assurance or undertaking has been given that this will be done and a final decision is no doubt dependent upon the result of this application.   The first defendant’s Counsel in submissions said  “on the balance of probabilities” a part 20 claim will be issued.   On that basis there appears to be a clear likelihood that the Trust will in any event be joined to this litigation.

47.	All three parties dealt with section 33 in detail in their skeleton arguments.   They made submissions on section 33 before me.  In deference to those matters I thought it right even having regard to my decision set out above to indicate the position I take on the section 33 application	It is necessary under section 33(3) to have regard to all the circumstances of the case before it can be regarded as equitable to allow the action to proceed having regard to the matters set out in section 33(1).   

The Length and Reasons for the Delay

48.	The claimant asserts the length of the delay in issuing proceedings against the proposed second defendant is short.   The original proceedings were issued in time against the first defendant.   They were served within the four month time limit thereafter.   The defence denying liability for the actions of doctors and nurses at the Trust was served in July 2004, some six months later.   Immediately thereafter it was indicated to the Trust by the claimant’s solicitors that they proposed to apply to add them as a defendant.   The 5 August 2004 has been fixed by agreement as the relevant date for calculating the limitation period if that is necessary.   The three years limitation period expired on 2 October 2003.   The delay here therefore is about ten months, which the claimant describes as “relatively short”.

49.	The claimant further describes the reasons for delay as a genuine mistake by the solicitor as to who was responsible for the nursing and medical staff when the treatment was private treatment.    In particular the claimant believed he was allocated a special nurse by the first defendant, which goes some way to justify the assumption by the claimant.

50.	The Trust asserts that as the claim was issued and pleaded in full within three years of the operation so the only reason for the delay in issuing against the Trust was error on the solicitor’s part.   I accept that such fault cannot be attributed to the claimant for the purposes of section 33 (see Das v Ganju [1999] Lloyds Law Report.. medical 198; Corbin v Penfold [2000] Lloyds Law Rep.. medical 247 and Steed v Peverel [2001] EWCA Civ 419. But the Trust says that as the Court has to have regard to “all the circumstances of the case” regard must be had to the fact that the claimant will if need be have an unanswerable case in negligence against his solicitors.

51.	In my judgment the delays cannot be described as lengthy.  There were delays by the proposed second defendant in providing information to the claimant’s solicitors of at least some six months.   He himself did have significantly difficulties in obtaining information about the cause of his cardiac arrest.   In my judgment the balance of prejudice to the claimant in potentially having to issue further proceedings against his solicitors weighed against the prejudice to the defendant in being party to these proceedings when there is every likelihood that will happen because of a CPR part 20 claim points clearly to exercising discretion in favour of the claimant.

Cogency of the Evidence

52.	I have noted that the relevant theatre staff left the employment of the Trust in 2001/2 and the nurses were agency nurses.   However the first defendant has now identified the names of the nurses and taken steps to contact them.   Indeed one has been found.   They will in any event no doubt rely for their evidence on medical notes made at the time.   I do not consider that the short delay in this case will in any sense reduce the cogency of the evidence available.

The Conduct of the Defendant in Response to Requests for Notes

53.	It is the claimant’s case there was a delay of six months in the medical notes being obtained and an MRI scan result was not obtained until significantly later.   There was it is said confusion over the storage of private patient’s notes and the responsibility for private patients within the Trust.   This delay of six months is said to be relevant in the particular timescales under consideration in this case.  Again in my judgment the balance of prejudice comes down in favour of the claimant under this head.   

The Duration of any Disability after the Accrual of the Cause of Action

54.	The claimant was hospitalised for nearly a month after the operation.   He was able to return to work.  He spent the first half of 2001 thinking he was to recover.  It appears that the likely extent of his problems were only begun to be explained to him in August 2001.   His disability of course continues to this day.   Again weighing up the early period during which the claimant was unaware of the proceedings that might or could be issued against the delay I conclude that the balance of prejudice comes down in favour of the claimant’s case.

The steps taken by the Claimant after he knew the acts or omissions of the Second Defendant might be capable of giving rise to an action

55.	The claimant made enquiries through his general practitioner with the first defendant from January 2001 onwards.   He consulted solicitors in August 2001 and began seeking to obtain medical records in December 2001 after which there was a delay.   There was a delay in finding a medical expert to further assist.   The eventual report on which the claimant’s case appears to be based was obtained from Professor Aikenhead in March 2003.   Throughout this time there was confusion in respect of the employment of nurses for a private patient including a belief on the part of the claimant that a special nurse had been employed by the first defendant to assist.   There was some delay on the part of the second defendant over the relevant period. If the claimant ought properly to have realised that the time limit ran from 3rd October 2000 I regard the steps he took to ascertain the true position to be understandable and the consequent delay as understandable. Again conducting the balancing act required I consider the claimant’s position on this issue means the degree of prejudice against him outweighs that against the Trust.

The Balance of Prejudice

56.	The first defendant considers the claimant will be seriously prejudiced if the Trust is not joined because it is possible the claimant will fail to recover anything at all.   On the other hand it is said the Trust would not be prejudiced by being joined because it is likely that it will be joined by the first defendant under part 20 CPR in any event.  As the first defendant regards the post-operative observations on the claimant as being inadequate he considers there is a real risk that a court might find that the fault if any lay with the nursing and other staff and not with the surgeon.    The claimant would therefore not obtain any compensation for his serious injuries if the Trust were not a party.  

57.	The Trust accepts it is relevant to consider the strength of the claimant’s claim against the Trust.   No nursing expert report has been disclosed although it appears there is one held by the claimant.   The Trust regards the prospect as almost negligible of a judge finding the operating consultant with overall care of this patient as not negligent.   And even if the Trust were added and found liable the lions share of the blame would be apportioned to the first defendant.  Further the Trust asserts the claimant’s costs are already disproportionate.  A large number of additional experts will be needed at substantial costs and the addition of the Trust will in essence only increase the overall costs.

58.	There must be some risk that the claimant loses his claim against the first defendant and recovers nothing.   There is a clear likelihood that the Trust will be involved in any event given the likelihood of CPR part 20 proceedings.   If the Trust successfully defends the claim, there is insurance in place under which the claimant will be able to meet the Trust’s costs.   In any event disproportionate costs claims will be subject to taxation.   It is not right to visit any faults on the part of the claimant’s lawyers onto the claimant himself.   Without the involvement of the Trust there must be a risk that the nurses and medical staff employed at the time of the operation by the Trust will not be available to give evidence.

59.	It seems to me having regard to all the circumstances of the case, weighing up the relative prejudice to the claimant and the Trust, in exercise of my discretion, had it been necessary, I would hold it equitable to allow the action to proceed against the Trust.