Cozens v North Devon Hospital Management Committee

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeThe Master Of The Rolls,Lord Justice Danckwerts,LORD JUSTICE SALMON,Lord Justice Salmon
Judgment Date24 May 1966
Judgment citation (vLex)[1966] EWCA Civ J0524-2
Date24 May 1966

[1966] EWCA Civ J0524-2

In The Supreme Court of Judicature

Court of Appeal

From. Mr Justice Thompson


The Master of the Rolls

(Lord Denning)

Lord Justice Danckwerts and

Lord Justice Salmon

Plaintiff Respondent
The North Devon Hospital Management Committee and Gordon Brook
Defendants Appellants

Mr P. Webster (instructed by Messrs Lovell, White & King, Agents for Messrs Bevan Hancock & Co., Bristol) appeared as Counsel for the first appellant, and (instructed by Messrs Hempsons) appeared as Counsel for the second appellant.

Mr D. C. Calcutt (instructed by Messrs Baileys, Shaw & Gillett, Agents for Messrs Tozers, Dawlish, Devon) appeared as Counsel for the respondent.

The Master Of The Rolls

In April 1957 Mrs Cozens went into the North Devon Infirmary in Barnstaple. The surgeon, Mr Brook, together with the staff, carried out an operation for a hysterectomy. Unfortunately "by some mistake a swab was left in her body. Three months later this was discovered. The swab was removed. But it left ill effects on her. In an attempt to correct the damage in April 1958 she went into the hospital again. Another operation was performed. But without success. The ill effects continued. Mr Brook advised a further operation but she did not have it for a long time. The reason was because her son was young and she would not leave him. In October 1964 she did have the further operation at the same hospital. It was performed by a different surgeon. This too was not successful. The surgeon told her on this occasion that a similar operation was virtually impossible and that no more could be done for her. She says that it was not till this time, October 1964, that she realised that her condition was so serious. She went to solicitors and, on their advice, wishes to bring an action for damages.


Prima facie any action is statute barred. The period of limitation in cases of this kind is three years - and three years have long since passed since the swab was left in her body. Mrs Cozens will be barred by the lapse of time unless she can take advantage of the new Limitation Act 1963. That Act was passed especially to enable a plaintiff to overcome the time bar in cases of personal injury where he or she did not know material facts until too late. Shortly stated, it is this: If he brings the action within twelve months of discovering material facts (being facts which are of a decisive character) he is not to be barred - see Section 1(3) of the Act. In this case Mrs Cozens would have to prove that she did not know the extent of her injuries until the last twelve months and, furthermore, that this lack of knowledge was of a decisive character. She would have to show that until the last twelve months a reasonable personin her place would not have regarded the injuries as so serious as to make it reasonable for her to bring an action. She says she can prove it: because it was only in October 1964 that she discovered her injuries serious enough to warrant an action.


But Mrs Cozens has to get over a preliminary hurdle before she can embark upon proof of these facts. Parliament has set up a hurdle so as to protect defendants from being harassed by actions when there is no reasonable ground for lifting the time bar. The hurdle is this: Every plaintiff who seeks to take advantage of the 1963 Act must get the leave of the Court for the purpose. Section 2(1) says that: "Any application for the leave of the Court for the purposes of the preceding section shall be made ex parte". He or she must apply ex parte to a Judge in chambers and produce evidence to show that he has a good cause of action and also that he did not know the decisive facts until the last twelve months. In short, the plaintiff must satisfy the Judge he has a prima facie case. If the Judge is satisfied that the plaintiff's evidence, if believed, is sufficient to overcome the time bar, then he must grant him leave: but otherwise he must refuse.


Mrs Cozens got over that preliminary hurdle successfully. On 28th September, 1965, her Counsel went ex parte before Mr Justice Nield in chambers and produced affidavits by Mrs Cozens and her general practitioner. She gave the history which I have recounted. Her general practitioner said that her condition is "probably irremediable and Mrs Cozens has only now become aware of this, after the unsuccessful operation of October 1964". On reading the affidavits, the Judge gave her leave for the purposes of Section 1 of the Limitation Act 1963. The defendants, of course, were not heard. It was ex parte and they knew nothing of the application.


Now the point is this: The defendants apply to set aside that leave. They say that even on those affidavits, the Judge ought not to have given leave. They say that it is afundamental rule of practice that a party affected by an ex parte order may apply to the Court to discharge it inasmuch as he has not had an opportunity of being heard. The defendants recognise that, owing to the very words of Section 2(2), they cannot give evidence to contradict the plaintiff's evidence. They must accept the plaintiff's evidence as correct. But they wish to argue that, even on that footing, leave ought not to have "been given. The Judge, they say, went wrong in law.


Now I quite agree that in general a party affected by an ex parte order can apply to discharge it. We applied this rule as of course in Peachey's case recently. But the procedure under the Limitation Act 1963 is altogether exceptional. It says in terms that an application shall be made ex parte. This is a strong indication that the Judge is to decide the application on hearing one side only. No provision is made for the defendant being heard: and I do not think we should allow it to be done at this stage. It must be remembered that, even when the Judge grants leave, there is nothing final about it. It is merely provisional. The defendant will have every opportunity of challenging the facts and the law afterwards at the trial. The Judge who tries the case is the one who must rule finally whether the plaintiff has satisfied the conditions for overcoming the time bar. He is not in the least bound by the provisional view expressed by the Judge in Chambers who gave leave — see Re Clark v. Forbes Stuart (Thames Street) Ltd., 1964, 2 All England Reports, p. 282.


Suppose we were to allow the defendant to challenge the ex parte order at this stage, we should be putting up an additional hurdle which the legislature have not put up: and I do not think we should do it. We should be requiring the plaintiff to get the view of another Judge in her favour in this way: First, there would be the Judge who grants leave ex parte; second, the Judge who reviews it on hearing the defendant's application to set aside. I do not think this second Judge should be interposed,because he would be faced with a prior decision by a Judge, made after argument, on the very point at issue. If he refused leave, the plaintiff would be out of Court. She would be barred, save for an appeal to this Court. If he granted leave, it might embarrass the: Judge at the trial.


In my opinion, therefore, the defendants have no right to apply at this stage to set aside the leave which was given ex parte, The defendants must go on to trial where everything will be open to them. The note in the Annual Practice 1966, page 1999/209E is wrong.


On this ground I would dismiss the appeal, We heard argument on the merits. All I would say is that, even if it were open to us (which it is not), I would not have disturbed the leave granted by Mr Justice Nield. There was, I think, a sufficient prima facie case to warrant the grant of leave.

Lord Justice Danckwerts

The occasion which gave rise to the proceedings in this case was the leaving of a gauze swab when an operation was performed on the unfortunate lady concerned in the case. After the subsequent discovery that the swab had been left behind, a series of operations was performed with the object of putting right the after effects of this mishap. The patient delayed taking proceedings because she disliked the idea of taking proceedings against the hospital and hoped that the subsequent operations would rectify the situation. In this way she let the normal period of the Limitation Act, 1939, pass by, and she had to seek the relief provided by the limitation Act, 1963.


The original operation when the swab was overlooked was in April 1957. In July 1957 the matter became apparent to the patient. By October 1964 it became apparent to the patient that her condition was not going to be put right. On the 28th September 1965 on an application made to Mr Justice Nield under the Act, ox parte as thereby required, an order was made by that learned Judge under Section 1 of the Act giving leave to bring the action against the North Devon Hospital Management Committeeand the surgeon who did the original operation. The writ was issued on the 29th September 1965.


The present application was made to Mr Justice Thompson to set aside the order of Mr Justice Nield under the fundamental rule of practice that any party affected by an ex parte order may apply to discharge the order on the ground that he has not had an opportunity of being heard. Mr Justice Thompson, however, held that by reason of the terms of the Limitation Act 1963 he had no jurisdiction to interfere with the order of Mr Justice Nield, and on the 25th March 1966 he refused to set aside the orders of Mr Justice Nield. There were in fact two applications and two orders, but they both involve the same point of law.


It is necessary, therefore, to examine the provisions of the Limitation Act, 1963. The point is whether, having regard to the terms of that Act, the general rule as to ex parte orders is inapplicable in the present case. The Act (Section l) applies in respect of the period of three years...

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