Antcliffe v Gloucester Health Authority

I will ask Lord Justice Scott to give the first judgment.

This is an appeal from the judgment of Mr. Justice Schiemann on 31st July 1991 whereby he dismissed an appeal by the defendants from the refusal by the district judge of the defendants' application to have the action dismissed for want of prosecution. The action is one of medical negligence.

On 30th September 1981 the plaintiff underwent an operation for the the removal of an infected kidney. The operation was conducted at Gloucester Royal Hospital. The operation was performed by a surgeon from the United States of America who has since returned to his home country. Efforts to trace him have failed. There is nothing to suggest that renewed efforts will have any real chance of success. On 14th December 1983 the plaintiff underwent an operation for a psoas abscess resulting from the surgery in 1981. On this occasion the surgeon who carried out the treatment was a Mr. Thompson, an English surgeon. This operation too was carried out at Goucester Royal Hospital. Following the second operation the plaintiff continued to suffer pain and discomfort, and on 19th February 1984 she was admitted to the John Radcliffe Hospital in Oxford where remedial surgery was performed which was successful. Subsequently information was given to the plaintiff in connection with her treatment at the John Radcliffe which led her to believe that the treatment she had received in the first operation operation in 1981 and the second operation in December 1983 were negligently carried out.

It is accepted that for Limitation Act purposes time began to run in February 1983 for the purposes of the plaintiff's negligence action. In April 1984 the plaintiff instructed solicitors with a view to making a claim for negligence. The proposed defendants were the Gloucester Health Authority, the defendants in the proceedings and the appellants before us. The authority is responsible for Gloucester Royal Hospital. In July 1984 the plaintiff's solicitors obtained the relevant hospital records, medical notes and the like from the health authority. In January 1985 she obtained legal aid for the purposes of bringing the negligence action. On 19th February 1986 the writ was issued. As yet no notification of a claim had been given to the health authority. In March 1986 the health authority was informed for the first time that a claim was about to be made by the plaintiff, but no details were given. It was not until 15th April 1986 that the writ and statement of claim was served. The first period of delay in the prosecution of the action was therefore from February 1984 to April 1986. On 4th July 1986 the defence and a request for further and better particulars of the statement of claim were served. The particulars requested were not served by the plaintiff's advisers until 8th September 1987. The fourteen months it took to produce the particulars requested is another relevant period of delay.

Under the Rules of the Supreme Court pleadings were deemed to be closed on 18th July 1986. A summons for directions ought to have been taken out by 18th August 1986, but nothing was done on the plaintiff's side to progress the action until, on 11th February 1991, the plaintiff's solicitors wrote to the defendant requesting that the plaintiff's medical notes be forwarded to an orthopaedic expert proposed to be instructed on behalf of the plaintiff. This letter prompted the defendants to take out a summons on 27th March 1991 seeking the dismissal of the action for want of prosecution. R.S.C. Order 25, rule 1, and the inherent jurisdiction of the court were relied on. The period of delay from September 1987, when the further and better particulars of the statement of claim were served, to March 1991 is the third period of delay in the prosecution of the action.

Mr. Baker, counsel for the plaintiff before this court as I think he was counsel below, has explained that over the period from the service of the writ and statement of claim in 1986 down to the letter to which I have referred in March 1991 a number of inquiries were being conducted on behalf of the plaintiff with a view to seeing whether various physical symptoms which she was suffering might be attributable to the negligent treatment that she claimed to have received in 1981 and 1983. It was eventually determined as a result of expert advice that the symptoms were not attributable to the treatment she received in those two operations, but the delay was caused by endeavours on her behalf, carried out by her advisers, to be clear as to the extent of the claims that she might be able to make in the action.

There can be no criticism of the plaintiff's advisers in endeavouring to be clear as to the extent of the claims open to her in her negligence action, but, as Mr. Baker has accepted, what ought to have happened is that a summons for directions should have been taken out and an application made for the case to be allowed to stay on the back boiler while the requisite inquiries were being undertaken. If that had been done, the defendants would have known where they were and the application to dismiss for want of prosecution would not then have been made. But in the event the defendants were left in ignorance as to whether the claim was being seriously pursued until they received the letter in March 1991 to which I have referred.

On 10th May 1991 a summons for directions was taken out, prompted perhaps by the defendants' summons to strike out for want of prosecution which had been issued on 27th March of that year. On 11th July 1991 District Judge Barrington Ward refused to strike out the action. On 31st July 1991 Mr. Justice Schiemann upheld that refusal, but gave leave to appeal to this court. Mr. Justice Schiemann accepted that the delays on the plaintiff's part in prosecuting the action had been "inordinate and inexcusable when looked at in their totality". There is no challenge to that part of his judgment. It is therefore the basis upon which a consideration of his decision not to strike out the action for want of prosecution must be undertaken. The learned judge concluded that the defendants had not suffered sufficient prejudice by reason of the delay to warrant the striking out of the action.

It is accepted on the authorities that on a striking out application the defendant must show, as well as inordinate and inexcusable delay, either some prejudice caused by the delay in the prosecution of the proceedings or that a fair trial would no longer be possible: see Birkett v. James[1978] A.C. 318. In the present case there is no separate point to be made on the question whether a fair trial of the action is still possible. The striking out application is based on prejudice said to have been caused to the defendants by the delay in the prosecution of the action. The prejudice contended for below and in this court falls under three headings. First, it is said that the memories of important witnesses, and in particular the surgeons who operated on the plaintiff in 1981 and in 1983, must have become less reliable over the period of the delay. As to this, the learned judge said that he was not satisfied that any deterioration in the ability of Mr. Thompson (the English surgeon who operated in 1983) to recollect the circumstances of the treatment he gave the plaintiff would prejudice the defendants in their defence. The judge also said that in his opinion the recollection of the American surgeon was not in point for the reason that he could not be traced and so would not be a witness in the case.

Notwithstanding the criticisms advanced by Mr. Coghlan (counsel for the defendant), I find myself in broad...