Martin v Kaisary (No 1)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE SMITH,LORD JUSTICE WALL,LORD JUSTICE BROOKE |
| Judgment Date | 16 March 2005 |
| Neutral Citation | [2005] EWCA Civ 594 |
| Docket Number | A2/2004/2110 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 March 2005 |
[2005] EWCA Civ 594
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (MR JUSTICE SIMON)
Lord Justice Brooke
(Vice President of the Court of Appeal, Civil Division)
Lady Justice Smith
Lord Justice Wall
A2/2004/2110
MR M BARNES (instructed by Charles Russell) appeared on behalf of the Claimant
MR A MOON (instructed by Radcliffes Le Brasseur) appeared on behalf of the First Defendant
MS K GOLLOP (instructed by Bevan Brittan) appeared on behalf of the Second Defendant
This appeal raises the issue of when it is appropriate for the court to permit a party, pursuant to CPR part 19.5 subrules (2) and (3) to join or substitute a party to an existing action after the expiry of the primary limitation period upon which the added or substituted party would be entitled to rely. The claimant seeks to add the Royal Free Hospital Trust ("the Trust") as a defendant to the action he has already commenced against Mr Amir Kaisary. The judge, Simon J, refused permission to add the Trust as defendant and the claimant appeals that refusal with the leave of the Court of Appeal.
The claimant underwent an operation for the removal of his prostate gland on 2nd October 2000. The surgeon was Mr Kaisary, who is a consultant urologist employed by the Trust. However, Mr Kaisary also operates on private patients at the Royal Free Hospital and the claimant was such a patient.
The pleadings in the existing action allege that the operation lasted from about 11am until 2pm. It was uneventful. Immediately after the operation, the claimant was given an anticoagulant drug to guard against the well-recognised post-operative risk of venous thrombosis. He was taken to the recovery room and his condition was monitored. In due course, he was transferred back to his room and monitoring continued. At some time during the evening, Mr Kaisary went home but remained in telephone contact with the hospital. The nursing staff continued to make observations on the claimant and spoke to Mr Kaisary on at least one occasion. A nurse also spoke to an on call doctor in the hospital about the claimant but the claimant was not examined by any doctor during that evening.
At about 30 minutes after midnight on the following day, 3rd October 2000, the claimant suffered a cardiac arrest. He was given emergency treatment and his heart was restarted. It seemed that the cardiac arrest was due to internal post-operative bleeding and emergency surgery took place. According to the letters written by Mr Kaisary to the claimant's general practitioner, no obvious cause was found for the post-operative bleeding and it was attributed to the claimant's reaction to the anticoagulant drug he had been given. The claimant recovered and left hospital but it was found that he had suffered some permanent brain damage which appears to have been caused by oxygen deprivation during the cardiac arrest. The claimant has been unable to cope with the demands of his job and has been retired early as a result. He also suffers from depression and has sustained loss of amenity.
On 30th September 2003, two to three days before the primary limitation period expired, the claimant's solicitor began proceedings for damages against Mr Kaisary. The solicitor had not complied with the requirements of the pre-action protocol. Detailed particulars of claim were not served until January 2004. When served, allegations of negligence and breach of duty were made against Mr Kaisary personally, and against the medical and nursing staff at the hospital. It was alleged that Mr Kaisary was vicariously liable for the acts and omissions of the nursing and medical staff. The gist of the claimant's case was that Mr Kaisary and the staff had failed to heed the signs that the claimant was suffering from internal bleeding. It was said that the medical and nursing staff had not monitored the claimant's condition as regularly as they should have done, but that such observations as were recorded in the medical records showed the claimant's blood pressure was low, his pulse rate high and his central venous pressure low, and also that there was a marked disparity between the fluids being put into his body, by infusion, and the amounts of fluid which were being excreted. It was alleged that these signs should have made Mr Kaisary and/or the medical and nursing staff realise that the claimant might have internal bleeding. Mr Kaisary or some other doctor should have taken action before the claimant suffered cardiac arrest.
Mr Kaisary's solicitor asked for an extension of time for the service of the defence. This was granted and the defence was served on 21st July 2004. It denied liability and also denied that Mr Kaisary was responsible for the acts or omissions of the medical and nursing staff at the hospital. He was, it was said, liable only for his own actions. A few days later, the claimant applied to the court to amend the claim, pursuant to CPR 19.5, to add the Trust as second defendant. In September 2004, before that application had been heard, a further application was lodged in which the claimant sought to disapply section 11 of the Limitation Act 1980 in a new claim against the Trust as second defendant.
The claimant's solicitor filed a statement in support of the applications. She said that the claimant had made various allegations again Mr Kaisary but that Mr Kaisary was now questioning the care provided by the nursing and other staff at the hospital. That was not what the particulars of claim said; there it was the claimant who was questioning the care provided by the nursing and medical staff. Be that as it may, the solicitor said that it was difficult to tell from the invoices received from the Trust (relating to the claimant's stay in the hospital) whether or not the entries related to the payment for nursing services. She had asked for further information from the defendant but, until that information was to hand, it was necessary for her to protect the claimant's case by issuing proceedings against the Trust. In respect of the limitation issues, she said that it was not until the claimant had obtained expert evidence in March 2003 that he knew his condition was attributable to the acts or omissions of the medical and nursing staff at the hospital in respect of a failure to monitor the claimant's condition and treat him appropriately. In the alternative, the claimant invited the court to exercise its discretion under section 33 of the Limitation Act 1980.
Both applications came before Simon J in August 2004, apparently as urgent vacation business, which they were not. He dealt with the first limb of the application and ruled against the claimant. For want of time, he adjourned the second limb of the application to another date.
CPR Part 19 makes provision for changes in the parties to an action after the action has begun. Rule 19.5 makes provision for the addition or substitution of a party after the end of a relevant limitation period. This rule was made pursuant to the provisions of Section 35 of the Limitation Act 1980:
"(3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.
For the purposes of this subsection, a claim is an original set-off or an original counterclaim if it is a claim made by way of set-off or (as the case may be) by way of counterclaim by a party who has not previously made any claim in the action.
(4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.
(5) The conditions referred to in subsection (4) above are the following—
(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and
(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action."
So far as relevant, CPR 19.5 subrule (1) provides:
"This rule applies to a change of parties after the end of a period of limitation under—
(a) the Limitation Act 1980 … "
Subrule (2) provides:
"The court may add or substitute a party only if—
(a) the relevant limitation period was current when the proceedings were started; and
(b) the addition or substitution is necessary."
Subrule (3) provides, so far as is relevant:
"The addition or substitution of a party is necessary only if the court is satisfied that—
(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party;
(b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant."
Subrule (4) makes provision for the additional substitution of a party where the court has made a direction under the Limitation Act disapplying the primary limitation provisions. It is that provision which will be...
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