Harris v Bolt Burdon (a firm) [2000] EWCA Civ 3037 (02 February 2000)

(Judge Cowell)

Royal Courts of Justice
London WC2
2nd February 2000

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____________________MR J JANUSZ (instructed by Messrs Wilson Barca, London N19 3TE) appeared on behalf of the Appellant
MR J EIDNOW (instructed by Messrs Barlow Lyde & Gilbert, London EC3A 7NJ) appeared on behalf of the Respondent



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    1. LORD JUSTICE SEDLEY: This appeal is the latest stage in what can be fairly called a litigation nightmare. It originally concerned the treatment by the local health authority of the claimant following the delivery of her baby in July 1982. The child will reach her majority later this year, but the claimant is no nearer a resolution of her case. This might have been a reproach to our legal system but for the fact that since April 1999, with the Court itself now in the driving seat, such cases should become increasingly rare and eventually unknown.
    2. From the immediate aftermath of the birth in 1982 the claimant was in pain, but her case is that it was not until April 1984 that she learnt that the cause was or might be an infection caused by retaining products of conception. She went to a firm of solicitors, the defendants, Bolt Burdon, in January 1987. They obtained legal aid limited to pre-action discovery, medical reports and counsel’s opinion. They arranged a conference with counsel in August of that year. It was not until April 1989, however, that the solicitors instructed a consultant gynaecologist, Mr Paterson, to advise. Then counsel advised an orthopaedic report which was obtained later that year. Meanwhile, on 20th April 1989, the defendants had issued a writ, but they let it expire without serving it. The moment of professional neglect, therefore, was 19th April 1990. But the question which seems not to have been properly addressed since then is whether the neglect was such as to amount to actionable negligence.
    3. Ordinarily in a solicitor’s negligence action it does not, in my view, lie in the defendants’ mouth to say that the claim never stood a chance. Having obtained legal aid for it, it will have been for them to advise the client and the Legal Aid Board if it was a hopeless case. These defendants did not do so. Ordinarily, therefore, I would have approached what followed, at least in relation to striking out, on the footing that by their undoubted neglect to renew or serve the writ the defendants had thrown away a cause of action which had some chance of success and therefore a value to the claimant.
    4. However, here the situation is out of the ordinary for two reasons. The first relates to limitation. The initial limitation period expired in July 1985, but it was to be the claimant’s case that she did not know the cause of her condition until April 1984. It is pleaded against her in the present action that in conference with counsel in August 1987 she recounted that the surgeon had told her in October 1982 that the problem was infection of retained matter. This was something of which she, as a trained midwife, would have understood the significance. In fact she recounted having said to the surgeon, “I told you so.” If this is factually the case, and the reply does not join issue upon it, then it was plainly not going to be possible to establish, what the reply nevertheless went on to plead, that it was only in 1984 that the claimant learnt of the significance and attribution of the injury. She was painfully aware of the condition from the start. For the purposes of section 14 of the Limitation Act 1980 it is not enough that for two years she did not appreciate that there had been negligence, so long as she knew what had happened to cause the condition, as she manifestly did.
    5. The second reason is equally fundamental to the case. By April 1990 the defendant was still without medical evidence capable of sustaining Mrs Harris’ claim. Of the two reports which we have now seen Mr Patterson’s correctly poses the question:

“Whether the retained products of conception should have been diagnosed at an earlier stage,”

    1. and concludes:

“The medical treatment she received, though not ideal in many ways, followed what would be regarded as reasonable medical practice.”

    1. In other words, the case did not in his view meet the Bolam test. He also concluded:

“It would be impossible to prove that her osteitis pubis was caused by infective products of conception.”

    1. Although the orthopaedic surgeon, Mr Bannister, made a different diagnosis, namely osteomyelitis of the symphisis pubis, and was prepared to attribute this to post-partum infection, his report can do nothing to close the gap exposed by Mr Patterson in relation to the standard of treatment. It followed that had the writ been served counsel would have found it impossible to prepare a Statement of Claim and the Legal Aid Board would have had to be told that the case did not merit further support.
    2. Mr Janusz, for the claimant, has submitted that this would not have been the end of the road. He stopped short of suggesting an expert-shopping expedition, but he submitted that the report left open questions which might well have been answered favourably to the claimant, as indeed they were in 1984 when the claimant’s next solicitors sought medical advice, and which it was therefore the defendant’s duty to canvass with fresh experts. I disagree. Of course, competent doctors can reach different views about a question of medical negligence and, of course, a deficient medical report may have to be abandoned in favour of one which adequately addresses the right questions; but this does not entitle a claimant who has received a report which does competently address the right questions and answers them unfavourably to her to shop around until she gets a favourable opinion. The reality was that by 1990 Mrs Harris did not have a viable claim for damages for medical negligence because her solicitors had obtained an opinion which contra-indicated the viability of such a claim.
    3. Even so, and even though in the present negligence action against the original solicitors it is pleaded that the case stood no chance of success for these reasons, both sides have proceeded up to today on a different footing. Following the failure of Bolt Burdon to serve the writ, the claimant went to new solicitors, Judith Walker Tayar, hereafter “JWT”, who in November 1993 issued the present proceedings in the Central London County Court against Bolt Burdon, who have since that time been represented by Barlow Lyde and Gilbert, hereafter “BLG”. They put in a holding defence when served. Their proper defence was not served until April 1994 after pressure from the claimant’s solicitors.
    4. Faced finally with a defence denying that anything worthwhile had been lost, JWT during 1994 obtained the two medical reports which are with the papers and which, if accepted, established a viable case of negligence and consequential injury and loss. The action had to be taken out of the warned list in April 1994 because the defendants were not ready. The claimant too needed more time and the rest of 1994 was spent on interlocutory matters. If there was dilatoriness, however, it was on the defendant’s side. By the end of 1995 the case was escalating into something of a different order of magnitude, and by early 1996 the defendants were proposing to call four medical witnesses.
    5. Then on 12th April 1996 the court wrote to BLG in response to an enquiry from them to say that in the judge’s view the case appeared to have been automatically struck out. When in February 1997 JWT telephoned BLG to discuss the case they were told this. They told the claimant that she should consult other solicitors. She went first to Irwin Mitchell. It took them from August 1997 to March 1998, first of all to obtain the file from JWT and then to find that because of staff problems they were unable to act. It was then that the claimant went to her present solicitors, Wilson Barca. By the end of April they had the papers from Irwin Mitchell.
    6. Wilson Barca’s first and understandable move was to get the claimant’s legal aid certificate switched to them to allow the claimant to sue JWT; but counsel, to whom they went in July 1998 for advice on the merits, advised them that the original claim against Bolt Burdon had not in truth been automatically struck out. While this meant at least that the initial backslider was still the defendant and that there was no need to start again against a second firm of solicitors, it also meant that the action was by now getting very old indeed. Moreover, it was older by the seven months, from August 1998 to March 1999, that it had taken for BLG to abandon their assertion that the action could not pursued because it had been automatically struck out in 1996. Instead BLG had by then, that is to say in February 1999, indicated that they would now be applying to strike out the action against Bolt Burdon for want of prosecution. This is the application which has now reached this Court. It was granted on 11th May 1999 by district Judge Hassan and upheld on 24th August 1999 by Judge Cowell, who himself gave permission to appeal, essentially on the ground that his conclusions that there had not been a wholesale disregard of the rules amounting to an abuse of process, but that there had been delay so serious that a fair trial was now impossible, were both borderline decisions.
    7. Within the history I have outlined, the judge identified a single spell of inexcusable delay on the claimant’s side. Following a pretrial review in August 1994, the claimant failed, until January 1995, to serve the list of documents which ought to have been served within a fortnight. Worse, it was not until February 1997 (true, rather less than the three years mentioned by the judge) that the claimant’s solicitors offered to comply with the order which had also been made on the pretrial review for the exchange of witness statements, to be followed by exchange of expert reports and schedules of damages. The two expert reports of Mr Rawson and Mr Rushman had in fact been ready by August 1994, but they could not be served until the witness statements had been. It was when JWT telephoned BLG in February 1997 to arrange exchange of the witness statements that BLG told them, wrongly as was subsequently acknowledged, that the action had been struck out. From that moment any possible progress in the action has been stalled.
    8. Prompted by this shared but erroneous belief, JWT had early in 1997, and quite rightly in the light of it, advised the claimant to consult other solicitors. I have already recounted what then happened. It was not until September 1998 that, having found solicitors able and willing to act, the claimant was advised by counsel that her claim against the defendants was still extant, and not until the next spring that the defendant’s solicitors accepted that it was so.
    9. It follows in my view that it was when in February 1997 JWT offered to exchange witness statements that the defendants ought to have moved, if so advised, to strike out for delay. Although it was of course open to the claimant’s solicitors, as it is now clear they should have done, to insist on proceeding with the claim, I do not consider that the defendants are entitled to take advantage of time subsequently lost, since it is their solicitors who, albeit understandably, spent the next two years insisting that the action was already dead when it was not. The judge give little weight to this element of delay, and I would do the same. So the issue argued before the judge came down to whether an application made in 1999 to strike out an action for a delay of some 30 months between 1994 and 1997 ought on principle to have succeeded.
    10. Although the period was characterised by the defaults I have mentioned it was not a period of inactivity on the claimant’s part. In October 1994 BLG asked for a sight of the daughter’s medical records, and a consent to this was obtained and forwarded. In January 1995 the claimant’s list of document was served, and after a long wait BLG wrote in October 1995 to say that they had recently received the daughter’s records.
    11. Then in February 1996 the defendants asked for an extension of time for the service of their expert evidence. It was two months later that the court wrote, apparently only to BLG, to say that the action had been automatically struck out, which may explain why activity on their part ceased. It was not until the following February, 1997, that JWT on telephoning were met with the news that the action was apparently at a standstill.
    12. Up to August 1994 this action had been, as I have said, prosecuted with proper dispatch. The judge considered the delay, even when viewed as Mr Janusz for the claimant asked him to view it as two spells amounting to 13 months, to be inordinate and inexcusable. Taking the view, as I do, that the time lost by JWT was in fact considerably more than 13 months, I would respectfully endorse the judge’s view. I also agree with him that it is not a sufficient answer to point out that the defendants were active during this period in preparing their case. We do not know why JWT let this time go by. The present solicitors for the claimant give no indication in their evidence of having tried to find out why, but the claimant must, I am afraid, live with the consequence of delay: that being unexplained, it is unexcused. On the other hand, I am also prepared to accept Mr Janusz’s submission that the defendants had, through the years 1994 to 1996, been conducting their case with a comparable lack of pressure.
    13. Before this Court the claimant challenges the judge’s findings that the action should be struck out because the passage of time has made a fair trial impossible. There is no respondent’s notice, but the defendant’s skeleton seeks to support this striking out on the ground rejected by the judge, that there had been disregard of the court’s process amounting to abuse. The argument, however, took place in ignorance of the then recent decision of this Court in Biguzzi v Rank Leisure [1999] 1 WLR 1926. From that decision it is plain that the legal scene has radically shifted and that Birkett v James, with its retinue of subsequent decisions, is no more than a shadow of the past.
    14. Mr Janusz claims with some justification that it would be wrong to answer this question on the premise which the judge finally adopted, namely, that the court of trial would now be considering in the year 2000 matters which occurred in 1982, 1989 and 1994 when it ought to have been able to try them out in 1995. To do this he says, and I agree, is to blame the claimant’s lawyers for five years’ delay for the whole of which they were patently not responsible. I am also very doubtful about the judge’s conclusions on the effects of the passage of time on memory in the following respects.
    15. First, the account given by the claimant in 1984 of her conversation with the surgeon in 1982 is not in issue, contrary to the judge’s view. No problem, therefore, arises about having to dredge up the surgeon’s recollection of it. Nor, secondly, can I agree with the judge that the two original doctors would be handicapped in giving their evidence at this distance of time, assuming, what I very much doubt, that the defendants felt it necessary to call them. They would in any case and at any date have been relying on their own and the hospital’s notes. Thirdly, the same is true of the later medical reports obtained on the claimant’s behalf in the present action. So far as concerns the judge’s fourth reason for holding that there would be irremediable prejudice in a trial held at this distance in time, I accept Mr Janusz’s submission that it would require evidence, and there was none, to establish that clinical practice in the material regard had changed to an extent which would make it hard to say what good practice required in 1982. On the face of it, at least, this was a case about orthodox post-partum hygiene.
    16. For the defendant Mr Eidnow submits that in the end the sheer passage of time, regardless of fault, can make a fair trial impossible. This may in some cases be true, but it would take, in my view, a more extreme case than this one to establish it.
    17. In the end I do not consider that either the ground on which the judge upheld the striking out of the action, namely that there had been such delay that a fair trial was now impossible, or the ground which he rejected but which the defendants seek to resurrect, namely that there had been a disregard of the rules amounting to an abuse of process, furnishes a sufficient basis for a strike-out under the Civil Procedure Rules on the facts of this particular case. Neither the non-compliance nor the delay nor both taken together would have made it unfair to let this case go to trial. What does in my view make it wholly unfair to let the case go on — and unfair, I would add, not only to the defendants but to the complainant — is that it is a claim which cannot ultimately succeed. Without damage there is no actionable negligence. For the reasons I have set out nothing material was lost by Bolt Burdon’s failure to serve the writ, because the materials in their hands were incapable either of overcoming the failure to issue within three years of the occurrence of the harm to the claimant, or of establishing that it was because of a failure by the health authority to maintain an acceptable clinical standard that the harm had occurred. Even if Mr Janusz were right in his submission that the medical evidence can legitimately be improved retrospectively (and I consider that he is wrong in principle about this, for actionable negligence necessarily depends on the situation at the moment of neglect) limitation was still going to be a fatal obstacle to the claim.
    18. Under the Rules of the Supreme Court there was no way for a defendant, unlike a plaintiff, to obtain summary judgment on a case which though complete on paper was plainly not going to succeed at trial. Something of the sort is now possible under Rule 24.2 of the Civil Procedure Rules. In addition Rule 3.4(2) reads:

“The court may strike out a statement of case if it appears to the court —

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of proceedings; or

(c) that there has been a failure to comply with a rule, practice direction or court order.”

    1. The present application was to strike out for non-compliance with an order of the court, and I prefer to continue to approach it on that basis.
    2. Although Mr Janusz was understandably concerned that he had been presented by the court with an unexpected issue, he was given the time he asked for to obtain and consider the original medical reports, and he has, if I may say so, dealt most capably with the point in his subsequent argument. I have, nevertheless, reached the conclusion that the unanswerable reason for upholding the district judge’s decision to strike out the claim is that it is absolutely unwinable for the reasons which I have considered. The default in compliance with the court’s direction is undoubted. It might well, had this been a viable case, not have been such a default as to justify striking out, and I have gone through the history of the case in some detail in order to explain why. But the underlying reason why the courts’ “unqualified discretion” — the phrase is that of Lord Woolf in Biguzzi at page 1993 — to strike out for non-compliance ought, quite exceptionally, to be exercised against the claimant is that to let her case go on would simply be to allow more and more money to be spent by public funds on one side and insurance funds on the other without any possible ultimate benefit to the claimant. It may be that the non-compliance of her solicitors with the court’s direction is in this situation less the reason than the opportunity for taking this step, but that seems to me to be neither here nor there.
    3. I began by calling this case a litigation nightmare. This interlocutory appeal has at least made it possible to waken the claimant from it and to enable her to appreciate that there was no reality in the proceedings. I hope too that she will appreciate that it is in the end to her advantage that it should have happened this way, rather than that case should have gone on to trial and to inevitable defeat for her. I would, therefore, dismiss this appeal.
    4. LORD JUSTICE STUART SMITH: I agree that this appeal should be dismissed for the reasons given by my Lord and I only add a few words of my own because of the rather peculiar nature of these proceedings and the way that it has come to this Court.
    5. In my judgment, it is unfortunate that when the judge was considering this appeal from the district judge his attention was not directed to the relevant provisions of the Civil Procedure Rules which are now to be found in CPR 3.4(2) and particularly sub-paragraph (c) which provides that:

“The court may strike out a statement of a claim if it appears to the court —

That there has been a failure to comply with a rule, practice direction or court order.”

    1. That rule was in force at the time when this appeal was heard by the circuit judge. Instead, however, he considered the matter, and was invited to do so by counsel, on the basis of the old law. That is quite contrary to the proper approach to the new rules as appears clearly from the judgment of Lord Woolf, MR, in the Biguzzi case to which my Lord has referred, see page 1931H to 1932E.
    2. Counsel for the appellant sought to justify both the judge’s approach and his submissions to this Court on the basis that, in essence, the Court had to decide the same questions as previously, and that the old decisions could inform the Court’s approach to the new rules. I do not agree. Of course, some of the matters will inevitably fall to be considered, for example, the reasons for the non-compliance with the rule, the length of the delay and the reasons for it, and questions of prejudice and whether or not it is possible to have a fair trial, but the essential point is that the Court should do justice and should not be bound by the technical restrictions and inhibitions that developed under the old law from Birkett v James onwards.
    3. I should add that, in my judgment, if a case is manifestly weak, although perhaps not entirely hopeless, that may be a consideration which the court can properly take into account, because it seems to me that it is greater prejudice to a defendant to have to meet a very weak claim, possibly by a legally aided plaintiff, or one from whom there is no prospect of recovering his costs, than it is to have to meet a case of substance.
    4. In this case instead of proceeding under the new Civil Procedure Rules the judge addressed the question under the old law. In my view, it is a great pity that he did so. However, as became apparent in the early stages of the argument, the real question in this case was whether or not the claimant had any prospect of succeeding at trial at all. Not only do I think that that is a consideration which can be considered under the rule to which I have just referred, but there is now provision under Part 24 Rule 2, a procedure whereby the defendant may obtain summary judgment against a claimant where there is no real prospect of succeeding in the claim. That rule provides as follows:

“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if —

(a) it considers that —

(i) that claimant has no real prospect of succeeding on the claim or issue.”

    1. Strictly speaking, in my judgment, rather than applying to strike out for want of prosecution, it might have been preferable, at any rate before the judge when these rules had come into force, for the defendant to have applied under that rule so that the real issue to which my Lord has referred could have been considered. Unfortunately, that was not done. But in my view, and particularly having regard to the court’s powers of case management, it is right that when the real issue becomes apparent to the court that it should embrace it and should take the appropriate steps.
    2. For reasons given by my Lord, I consider that this case was bound to fail both on limitation and on liability for the reasons he has given.
    3. The only other thing I want to say is this. The learned circuit judge in this case gave permission to appeal to this Court because he regarded the case as being a borderline one and one that he found difficult. In my judgment, that is not a proper reason for the judge to give permission to appeal to this Court. This was a second tier appeal and the provisions of the rules are now that permission to appeal will not be given where the two courts below have come to the same conclusion unless there is some point of principle, or a matter of importance, or for some other exceptional reason.
    4. The ironical thing about this case is that if the judge was correct in approaching the matter as he did under the old law, he ought not to have given permission to appeal. It would, however, have been open to the single Lord Justice considering the matter to take the view that the judge had proceeded on the wrong basis, that he ought to have proceeded under the basis of the Civil Procedure Rules, and in those circumstances to have granted leave to appeal so that the matter could be reconsidered by this Court.
    5. For those reasons I would dismiss the appeal, having reached my conclusion for entirely different reasons from that of the learned trial judge.

ORDER: Appeal dismissed with costs. Leave to appeal to the House of Lords refused.

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