Byrne v Sefton Health Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE CHADWICK,LORD JUSTICE LONGMORE |
| Judgment Date | 22 November 2001 |
| Neutral Citation | [2001] EWCA Civ 1904 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2000/0190 |
| Date | 22 November 2001 |
[2001] EWCA Civ 1904
Lord Justice Peter Gibson
Lord Justice Chadwick
Lord Justice Longmore
B2/2000/0190
IN THE SUPREME COURT OF JUDICATUREIN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(Mr Recorder Braithwaite QC)
Royal Courts of Justice
Strand
London WC2
MS TRACEY MCLEVY (Instructed by Quinn Melville Solicitors, 120–122 Cherryfield Drive, Kirkby, Merseyside, L32 8AA) appeared on behalf of the Appellant
MR JAMES MCKEON (Instructed by Hill Dickinson, Pearl Assurance House, Derby Square, Liverpool, L2 9XC) appeared on behalf of the Respondent
I will ask Chadwick LJ to give the first judgment.
This is an appeal from a costs order made on 2 November 1999 by Mr Recorder Braithwaite QC sitting in the Liverpool County Court. The order was made against a firm of solicitors, Messrs Dooley & Co, in proceedings brought by Mr Gerard Byrne against South Sefton Health Authority. The proceedings had been commenced by the issue of a county court summons on 2 July 1998. It is a striking feature in this appeal that the solicitors, Dooley & Co, had ceased to act for the claimant, Mr Byrne, in May 1996 that is to say, some two years or more before the commencement of the proceedings in which the costs order was made against them.
The underlying facts may be summarised as follows. Mr Byrne received injuries to the head in the course of an assault upon him in the early hours of 18 May 1989. He was then aged 19 years. He did not, at the time, regard the injuries as serious; and he did not seek immediate medical treatment. But, over the next days and weeks, he suffered from headaches of increasing intensity and he consulted his general practitioner. On 25 June 1989 his father had become so concerned about his condition that he took Mr Byrne to the Accident and Emergency Department at the Walton Hospital; a hospital for which the defendant health authority had responsibility. Mr Byrne was seen there by a Dr De Vitt, who was, I think, a house officer in the Accident and Emergency Department. On examination Dr De Vitt thought that he had identified a possible papilloedema that is to say, a swelling of the optic discs in Mr Byrne's left eye. Dr De Vitt sought a further medical opinion within the hospital. That opinion refuted the presence of papilloedema. Mr Byrne was sent home on 25 June 1989 without treatment.
Mr Byrne's condition did not improve. He re-attended at Walton Hospital on 12 July 1989. He was examined then by a third doctor who diagnosed disc blurring caused by myopia. Co-dydramol was prescribed, and Mr Byrne was discharged.
Six days later, on 18 July 1989, Mr Byrne attended the Casualty Department at St Paul's Hospital. He was then found to be suffering from “bilateral barn door papilloedema”. He was referred immediately to the neurosurgical unit at Walton Hospital. By the afternoon of the next day he had undergone neurosurgery to relieve the pressure behind his eye. He was discharged on 24 July 1989; but required further surgery over the next month or so to remove an infection. He was finally allowed home on 18 August 1989. His persistent headaches cleared up after a further 12 months.
On or about 18 September 1989 Mr Byrne consulted solicitors, Dooley & Co. The solicitors say and there is no reason not to accept that they were consulted primarily with a view to a claim for criminal injuries compensation in respect of the assault in May 1989. Be that as it may, by February 1990 a claim against the Health Authority for damage was in contemplation. On 14 February 1990 Dooley & Co wrote to the medical administrator at Walton Hospital in these terms:
“We act for Gerard Byrne” [giving his address] “who was on 18th August 1989 discharged from Walton Hospital, Liverpool pursuant to treatment administered to him for a blood clot.
On our present instructions our client is likely to be a Plaintiff in subsequent legal proceedings in which a claim in respect of personal injuries to him is likely to be made against you.”
Dooley & Co asked for disclosure of the records and notes that a hospital might be expected to have in a case of this nature; and they set out the grounds upon which it was alleged that the hospital had been negligent in failing to make a correct diagnosis of papilloedema in June 1989. 8. There is little evidence of further progress thereafter. Mr Byrne's claim for criminal injuries compensation was refused by the Criminal Injuries Compensation Board. The claim was pursued to an appeal. That appeal was unsuccessful. Dooley & Co billed Mr Byrne for fees in relation to that claim and the appeal. Those fees were unpaid. It appears that Dooley & Co obtained judgment and a warrant of execution against their client. It is, perhaps, not surprising in those circumstances that Mr Byrne did not maintain contact thereafter with his solicitors in relation to his personal injury claim.
In the meantime with some difficulty and after some delay Dooley & Co obtained a medical report from a consultant neurosurgeon, Mr Leggatt. That was received in June 1994. Counsel was consulted and advised that the evidence then available was not sufficient to support a claim for clinical negligence. He recommended that a further medical report be obtained. Legal aid funding was obtained for that purpose. A medical report which provided support for Mr Byrne's claim was received from Mr Bache, a consultant in accident and emergency care, in July 1995. By that time, of course, the primary limitation period of three years prescribed by section 11 of the Limitation Act 1980 had long since expired.
In February 1996, following receipt of the report from Mr Bache, Mr Byrne consulted new solicitors, Messrs Steinberg & Co. It took a little time for the legal aid certificate to be transferred from Dooley & Co to Steinberg & Co; but that was effected by the beginning of May 1996. Thereafter Dooley & Co have not acted for Mr Byrne.
Steinberg & Co obtained a further medical report from Dr Vakil, a consultant neurologist. That report is dated 23rd February 1997 and supports a claim for damages arising out of the negligence identified in Mr Bache's report of July 1995.
In August 1997 the solicitor at Steinberg & Co who had had conduct of Mr Byrne's case against the Health Authority a Mr Price left his employment with Steinberg & Co and moved to another firm, Messrs Carter Hodge. The legal aid certificate was transferred to Carter Hodge by the end of that month. Thereafter Carter Hodge acted for Mr Byrne in place of Steinberg & Co. On 3rd April 1998 the new solicitors, Carter Hodge, wrote to the solicitors for Merseyside Regional Health Authority, with a copy of a letter before action addressed to South Sefton Health Authority. That was followed by the issue of the summons, to which I have already referred, on 2nd July 1998. That was some nine years after the cause of action accrued; and three years, almost to the day, after the report of Mr Bache had been received in July 1995. It is, therefore, no surprise to find that in paragraph 17 to the particulars of claim served with the summons there is an allegation that the claimant did not know that his injury was significant or that it was attributable to the acts or omissions of the servants or agents of the Health Authority -until receipt of Mr Bache's report on 3rd July 1995. Paragraph 18 of the particulars of claim assert that, notwithstanding that the relevant period of limitation under section 11 of the Limitation Act 1980 might have expired, it would be equitable for the court to permit the claim to proceed in the exercise of the power conferred by section 33 of that Act. Nor is it a matter of any surprise to find that the Health Authority took a limitation defence although, in fairness, it should be noted that they also denied negligence.
On 26th October 1998 the county court ordered that the limitation defence should be tried as a preliminary issue. That issue came before Mr Recorder Braithwaite QC on 27th April 1999. After referring to section 14 of the Limitation Act 1980, which defines the date on which a person has knowledge for the purposes of section 11 of that Act, the Recorder held that the claimant had had the relevant knowledge in September 1989 when he first consulted solicitors; in the alternative, that he had had that knowledge in February 1990 when Dooley & Co wrote the letter before action to the hospital to which I have referred; and, in the further alternative, that he had that knowledge in June 1994 when Mr Leggatt's report had been received. Whichever of those three were the correct date, the three-year limitation had expired before the proceedings were issued in July 1998. The Recorder held also that this was not a case in which he should exercise the discretion conferred by section 33 of the Limitation Act 1980 to allow the proceedings to continue notwithstanding that the limitation period had expired. He then considered the question what order as to costs he should make. He made an order in these terms, so far as material:
“the Defendant's costs to be paid on scale 2, such costs to be paid by the Plaintiff's solicitors (either Dooley & Co or Messrs Steinberg but not Carter Hodge) unless the aforementioned show cause within 56 days as to why they should not pay such costs personally.”
A curiosity of that order is that the solicitors who have to show cause why they should not pay the defendant's costs are not the solicitors who took the decision to commence the proceedings which failed. The solicitors who did take that decision were not at...
To continue reading
Request your trial
-
The Creative Foundation v Dreamland Leisure Ltd and Others
...in this context by Morritt LJ in Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232 at [28] and by Chadwick LJ in Byrne v Sefton Health Authority [2001] EWCA Civ 1904, [2002] 1 WLR 775 (in which Globe v Globe was not cited) at [35]. It is not necessary for the purposes of the pre......
-
Medcalf v Mardell (Wasted Costs Order)
...of audience but not involving advocacy in open court. If one might have thought subsection (13) to be unnecessary, the facts of Byrne v Sefton Health Authority [2002] 1 WLR 775 show that it was not. The construction of paragraph 606 of the Code of Conduct 21 As is evident from the quotation......
-
Goodwood Recoveries Ltd v Breen
...costs were all incurred in obtaining that benefit." Mr Graham relied on this passage. 62 On the other hand Mr Bacon relied on Byrne v. Sefton Health Authority [2001] EWCA Civ 1904, [2002] 1 WLR 775, where Chadwick LJ said this (at para 35): "It cannot be right to make an order under sectio......
-
Andrew William Shaw v Solicitors Regulation Authority
...exceptional and require very strong facts, including that additional wasted costs are incurred by the conduct in question (see Byrne v Sefton Health Authority [2001] EWCA Civ 1904 at [35]). 99 Again, this point does not advance Mr Shaw's position. In very general terms, it can be understood......