EH (A protected party, by her litigation friend, the Official Solicitor) v Dorset Healthcare University NHS Foundation Trust

JurisdictionEngland & Wales
JudgeMr Justice Warby,Mr Justice Jay
Judgment Date19 December 2016
Neutral Citation[2016] EWHC 3032 (QB),[2016] EWHC 3275 (QB)
Docket NumberCase No: HQ13X04241,HQ13X04241
CourtQueen's Bench Division
Date19 December 2016
Ecila Henderson
Dorset Healthcare University Foundation NHS Trust

[2016] EWHC 3032 (QB)


Mr Justice Warby

Case No: HQ13X04241



Royal Courts of Justice

Strand, London, WC2A 2LL

Nicholas Bowen QC (instructed by Osborne Clarke LLP) for the Claimant

Michael Mylonas QC (instructed by DAC Beachcroft LLP) for the Defendant

Hearing date: 23 November 2016

Judgment Approved

Mr Justice Warby

On 23 November 2016 I heard an application on behalf of the claimant for permission to amend her Particulars of Claim in this action, and a cross-application on behalf of the defendant for an order, if the claimant's application was successful, adjourning a 3-day trial fixed to start on 5 December 2016. After hearing Leading Counsel at a hearing lasting some 3 1/2 hours I dismissed the amendment application. I therefore made no order on the application to adjourn. These are my reasons.

The claim


On 25 August 2010 the claimant killed her mother. She was charged with murder. She pleaded not guilty of murder, but guilty of manslaughter by reason of diminished responsibility. Those pleas were accepted. On 8 July 2011 the claimant was sentenced to a hospital order under s 37 of the Mental Health Act, with restrictions pursuant to s 41. The claimant remains in detention pursuant to the Mental Health Act.


Long before the manslaughter, the claimant had been diagnosed as suffering from paranoid schizophrenia. At the time, she was under the care of the Southbourne Community Mental Health Team, within the defendant NHS Trust. An inquiry later made findings critical of the defendant's conduct. The core criticism was of a failure to act in a timely manner when alerted by a health worker, Ms Loyne, to a significant deterioration in the claimant's condition. In this unusual personal injury claim the claimant seeks damages against the defendant for personal injury in the form of psychiatric harm, and for the consequences of killing her mother.


Proceedings were issued on 22 August 2013. The defendant admitted liability for negligence. Judgment on liability in negligence, with damages to be assessed, was entered by consent as long ago as 12 May 2014. By an order of 17 February 2016 Master Cook directed the trial of preliminary issues which had been proposed by the defendant. That trial is listed to take place over 3 days in the week commencing 5 December 2016. The preliminary issues concern the extent to which the claimant's claims for damages are barred by the rule of law which prohibits a person from recovering damages for the consequences of their own illegality.

The applications


It was on Monday 14 November 2016, seven working days before the start of the preliminary issue trial window, that the claimant's solicitors filed her application. It seeks permission to amend by adding (1) claims under the Human Rights Act 1998 (" HRA"), alleging infringement of the claimant's rights under Articles 3 and 8 of the Convention, and (2) a claim for an extension of time for bringing those claims, pursuant to s 7(5)(b) of the HRA. The defendant's adjournment application was filed on Thursday 17 November 2016.

Issues and conclusions


The applications gave rise to six main issues. These, and my conclusions upon them, are as follows:-

(1) Whether the proposed amendments set out adequately pleaded claims with a real prospect of success.


I could not rule out the possibility that arguable claims under Article 3 and/or 8 and for an extension of time under s 7(5)(b) could be properly pleaded in this case, but in my judgment this plainly had not been done.

(2) If not, should the court dismiss the application or adjourn it to allow the claims to be better formulated?


I concluded that the proper course was to dismiss the application. I could not grant permission without a properly formulated draft statement of case; it would not be proper to allow a claimant to advance a loose, vague and ineffective pleading, especially in a human rights claim. I declined Mr Bowen's invitation to give him more time to perfect the drafting. The claimant had had ample time and opportunity to do that. I also took into account the factors that weighed with me on the issue of discretion, as outlined at 11 below.

(3) Whether the application was subject to the restrictions on amendments that add new claims after the expiry of a limitation period which are imposed by CPR 17.4; and

(4) If so, whether the proposed human rights claims meet the threshold requirement for such an amendment, that they should "arise out of the same or substantially the same facts as are in issue on the existing claims"?


Given my conclusions on issues (1) and (2), these questions did not strictly arise. However, the new claims clearly did seek amendment after the expiry of a limitation period. I favoured the view that on the true construction of CPR 17.4, that rule did apply to this application, with the consequence that the court was prohibited from granting permission to amend unless the new claims arose from "the same or substantially the same facts as" were already in issue on the claimant's claim. I concluded that the new claims did not arise from the same facts or substantially the same facts as were already in issue. The new claims would require significant additional factual investigation.

(5) Whether the amendment if allowed would require an adjournment of the preliminary issue trial.


My conclusion was that the grant of permission would require an adjournment. It would be highly undesirable to allow the preliminary issue trial to go ahead separately from any determination of the human rights claims.

(6) Discretion: if and in so far as the issue arose, should permission to amend be granted as a matter of discretion?


The need for an adjournment was a factor that clearly favoured the refusal of the application to amend. In those circumstances the onus was firmly on the claimant to demonstrate how and why it would be consistent with the overriding objective to allow the new claims to be advanced now. The claimant had failed to do that. I would have refused permission to amend as an exercise of discretion in any event.

The procedural history


A proper understanding of the issues and my reasons requires that I set out some further detail of the procedural background. What follows is either undisputed or, where it is, represents my findings on the evidence before the court.


22 August 2013: the claim form was issued, without accompanying particulars of claim. The brief details of the claim explained that it was for

"damage for personal injury, loss and damage … under both the common law and pursuant to sections 6–8 of the Human Rights Act 1998 ( HRA) such damage suffered on 25 th August 2010 and resulting from various acts and omissions which constituted both negligence and a breach of the defendants' duties under section 6(1) HRA which constituted unjustified and unlawful violations of Articles 2, 3 and 9 of the European Convention …"


The primary limitation period for a claim under the HRA is "one year beginning with the date on which the act complained of took place": s 7(5)(a). So the human rights claims were very nearly 2 years out of time already. The court has power to substitute "such longer period as the court … considers equitable having regard to all the circumstances": HRA s 7(5)(b). No claim for such an extension was pleaded in the claim form. A claimant who needs an extension under s 7(5) must apply for one: O'Connor v Bar Standards Board [2016] EWCA Civ 775.


19 September 2013: the claim form was served.


28 January 2014: some 5 months after the issue of the claim form, a detailed letter of claim was sent. The letter, 23 pages long, set out in great detail the nature and basis of the claimant's case in the common law tort of negligence. Having done that, the letter devoted one short paragraph to human rights. It then went on to detail over 2 1/2 pages what were said to be the "consequences of the defendant's negligence". The paragraph about human rights said this:

" Human Rights Act 1998

For the avoidance of any doubt we confirm that the claimant does not concede that a claim under this heading will not be brought if liability is denied and it is necessary to serve Particulars of Claim, etc."

The wording is clumsy but its sense is clear: the claimant might pursue the human rights claim which had been set out in the claim form, if liability for negligence was denied.


12 March 2014: in a letter of response to the formal letter of claim the defendant admitted liability for negligence, stating:

" Response to allegations of negligence and causation

We are instructed to confirm that the issues of breach of duty and causation alleged against the Trust are not in dispute.

For the avoidance of doubt, breach of duty and causation in your client's negligence claim are admitted and the Trust will consent to the entry of Judgment for the claimant with damages to be assessed and/or approved …

… It follows that we accept that your client is entitled to recover damages in connection with her claim in negligence against the Trust. We invite you to particularise your client's losses …"


12 May 2014: judgment on liability for damages to be assessed was entered by consent. The order was made in a form which had been prepared by the claimant's solicitors, and sent to those acting for the defendant in early April. It was expressly agreed by the defendant's solicitors. It made no reference to the cause or causes of action in respect of which judgment on liability was being entered. But the judgment plainly stemmed from the defendant's express admission of liability in negligence. That was clearly the basis on which the claimant's solicitors sought and...

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