Biss v Lambeth, Southwark and Lewisham Area Health Authority (Teaching)

JurisdictionEngland & Wales
JudgeLord Justice GEOFFREY LANE,Lord Justice EVELEIGH
Judgment Date15 November 1977
Judgment citation (vLex)[1977] EWCA Civ J1115-4
Docket NumberX 1975 B. No. 1618
CourtCourt of Appeal (Civil Division)
Date15 November 1977
Elizabeth Grace Biss (Married Woman)
Plaintiff (Respondent)
Lambeth, Southwark & Lewisham Area
Area Health Authority (Teaching) (formerly)
Lewisham Group Hospital Management Committee
Defendants (Appellants)

[1977] EWCA Civ J1115-4


The Master of the Rolls (Lord Denning)

Lord Justice Geoffrey Lane and

Lord Justice Eveleigh

X 1975 B. No. 1618

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the High Court of Justice

Queen's Bench Division

(His Honour Judge Sir Norman Richards, Q.C. Sitting as a Deputy High Court Judge)

MR. J. ROBERTS (instructed by Messrs. Lewis Silkin & Partners, Solicitors, London) appeared on behalf of the Plaintiff (Respondent).

MR. N. MERRIMAN (instructed by Messrs. Levett, Son & Baldwin, Solicitors, Bromley) appeared on behalf of the Defendants (Appellants).


THE MASTER OF THB ROLLS: Mrs. Biss suffers from multiple sclerosis. It struck her suddenly 12½ years ago. It was on Tuesday, 30th March, 1965. She awoke at home in the morning to find that she could not move her legs. She was taken to Lewisham Hospital. She lay parlaysed and helpless on her hack. She wetted the bed. Bed sores developed and were very painful. She was there for some months, then home for a while, and then back again. But on 17th January, 1966, she was transferred to a special care centre at Stoke Mandeville in Buckinghamshire. She was there for a year. They treated her so skilfully that the sores were healed, and she was able to walk again with the aid of sticks. But while at Stoke Mandeville she began to make all sorts of accusations against the nursing staff at the Lewisham Hospital. She said they had not looked after her properly: that the bed sores were due to negligent treatment: that the nurses had never turned her in bed: that they had never given her a catheter to help her not to wet the bed: and so forth. She went to solicitors. On 17th March, 1966 they wrote to the Hospital Board. On 1st July, 1966 the Solicitors for the Board, having investigated her complaints, made a reply denying her charges. I will read it, for it shows the case for the nurses: "Every possible care was taken to prevent the development of blisters, and later to cure them when they developed. Your Client was placed on a ripple mattress to help relieve the pressure areas, frequent attention to pressure areas was given, and she was advised how to lie so as to remove pressure on the blisters. However, we are instructed, and the records made at the time show, that she was very unco-operative and would not lie in the positions in which the nursing staff put her. She received occupational therapy and was provided with a wheel-chair.Splints were provided to help to support her legs, and she received daily physiotherapy. She was encouraged to walk again. She was advised against returning home - which advice she ignored. She was advised not to return home, but she went against such advice and our Client allowed her to take the wheel-chair home. She was advised to transfer to Stoke Mandeville, which she initially refused but later she went there".


Despite that detailed reply, Mrs. Biss still insisted that the nurses at Lewisham had been negligent. She got legal aid, with which a medical report was obtained and two Opinions of Counsel. These were to the effect that Lewisham Hospital were not guilty of negligence. So her legal-aid certificate was discharged. That was in 1966.


In January 1967 she left Stoke Mandeville and went home. She walked about with sticks. Despite the advice which she had received, she still persisted in her complaints about the Lewisham Hospital. She approached her Member of Parliament and the newspapers and her local Councillor. None of them took up her case. So the Lewisham Hospital quite understandably thought that the case was closed. There was no need to worry about it any more. But then about 1970 she joined the Multiple Sclerosis Society. They took up her case. Eventually a medical report was obtained from Dr. Walsh, the Director of the Stoke Mandeville Hospital. In a report of 20th July, 1973, he said: "Pressure sores commonly occur even in this country in patients suffering from multiple sclerosis and other spinal-cord lesions and injuries. These pressure sores are usually due to inadequate nursing. There is a grave nursing shortage and particularly a shortage of highly skilled adequately trained nursing staff in the field …".


Armed with that report, Mrs Biss once again applied for legal aid and got it. In due course in February 1975 she applied for leave under the Limitation Act, 1963 to bring an action against the Lewisham Hospital. It was 10 years since she left the hospital but still she applied for leave to sue them. The application was made ex parte, without the Lewisham Hospital being heard in their defence. Mr. Justice Boreham refused leave. But this court on 12th February, 1975 (basing itself on the then current interpretation of the 1963 Act) gave leave. That was, I now think, a mistake. At any rate, in pursuance of that leave, Mrs. Biss's advisers issued a writ on 18th February, 1975 against the Lewisham Hospital for damages for negligence "between about April 1955 and January 1966". So there it was. A writ issued ten years after the alleged negligence. The hospital denied negligence and relied on the Limitation Act, 1939. On 9th July, 1975, the Plaintiff delivered a Reply saying that the material facts were outside her knowledge until a year earlier than the writ: and so she was not barred by the Statute of Limitations.


Pleadings were closed on 23rd July, 1975. A summons for direction was issued: and directions given on 11th November, 1975. On 2nd December, 1975 the hospital gave particulars of their Defence and served on the plaintiff a request for further and better particulars. But the plaintiff did not comply with it. Her then solicitor did nothing. Nine months passed. New solicitors were engaged. They gave notice of change on 13th September, 1976. The legal aid certificate required them to get a further opinion of Counsel before setting down the case for trial. For this purpose the solicitors wished to get a further opinion from Dr. Walsh at Stoke Mendeville. Seeing that three years had passed since his previous opinion, Dr. Walsh wanted tosee Mrs. Biss again at Stoke Mandeville, but she said she could not undertake the journey to Stoke Mandeville. Two or three times she said so. Eventually, on 28th January, 1977 the solicitor to the hospital warned Mrs. Biss's solicitors that, if some progress was not made fairly soon, they would apply to dismiss the case for want of prosecution. On 28th February, 1977 they wrote saying: "…We are sure that our Client would not wish to take unfair advantage of a disabled opponent, but we are thinking in terms of taking instructions on whether to apply for the action to be dismissed if you do not proceed with it in the near future …".


Still Mrs. Biss had not gone to Stoke Mandeville: and Dr. Walsh had not given his further medical report. So on 22nd March, 1977, the hospital issued a summons to dismiss for want of prosecution. On 3rd June, 1977 Master Waldman acceded to the hospital's request. He dismissed the action. But on the 8th July, 1977 Sir Norman Richards held that the action was to proceed. The hospital now appeals to this court.


The argument before us turned much upon the recent decision of the House of Lords in Birkett v. James (1977) 3 Weekly law Reports 38. Mr. Jeremy Roberts for Mrs. Biss submitted that, as a result of that decision, the crucial date was the issue of the writ: and the crucial delay was the delay since the issue of the writ. He said that, in order that a case should be dismissed for want of prosecution, the delay since the writ must have been inordinate and inexcusable: and that delay must have caused serious prejudice to the defendant, or at any rate, prejudice which was "more than minimal", in addition to any prejudice that had been caused to the defendant before the issue of the writ.


Applying that proposition here, Mr. Jeremy Roberts relied on the plain fact that the writ was issued, and lawfully issued, on 18th February, 1975. He submitted that the relevant delay since that date was the nine months from December 1975 to September 1976. He admitted that that delay was inordinate and inexcusable, but he submitted that that delay did not add any extra prejudice, or, at any rate, no more than minimal. So the action could not be dismissed.


The argument is formidable. It makes it necessary to consider the principles on which the court should act. Before Pirkett v. James, there were two rival approaches to these cases about dismissal for want of prosecution. One approach was on the basis of public policy. It was in the public interest that, once a writ was issued, the action should be brought to trial as quickly as possible: and that long delay thereafter might lead to the action being dismissed. On the simple principle interest reipublicae ut sit finus litum I venture to quote what I said in Allen v. McAlpine (1968) 2 Queen's Bench at page 245: "… When the delay is prolonged and inexcusable, and is such as to do grave injustice to one side or the other or to both, the Court may in its discretion dismiss the action straightaway". I followed this up in Sweeney v. McAlpine (1974) Weekly law Reports at page 204 by saying: "The Court does not look merely at the delay since the writ. The Court inquires whether the total delay has been such that a fair trial between these parties cannot now be had". To which I added this proposition in Thorpe v. Alexander Forth Life (1975) 1 Weekly Law Reports at page 1464: "The plaintiff is not entitled to delay as of right for four years from the accident, three years before issuing; the writ and another year for service. He has no such right. He is notentitled to delay at all. It is his duty, once...

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