By Peter Yates
The High Court upheld a Master’s decision to allow a clinical negligence action to proceed pursuant to section 33 of the Limitation Act 1980.
The Defendant to the action was the estate of Mr Mossa, a consultant gynaecologist. In January 2007 he had operated on the Claimant with a view to resolving her urinary stress incontinence. Mr Mossa used TVT Secur Gynaecare vaginal tape.
The Claimant claimed that her symptoms relapsed after about six months. In July 2011 she suffered heavy vaginal bleeding and experienced pain. It became apparent that she had suffered erosion of the TVT tape into the vagina. After corrective surgery in September 2011, the Claimant underwent a hysterectomy and colposupension procedure in January 2013.
The Claimant launched a product liability case against the makers of the TVT tape – Johnson & Johnson – in September 2014. An expert medical report was obtained in December 2014. In July 2015 the Claimant launched a claim against Mr Mossa. She alleged that he had failed to obtain proper informed consent to the procedure, and failed to provide adequate information about the TVT product and alternative treatment options.
Mr Mossa’s estate (he died shortly after the issue of proceedings) filed a Defence raising a limitation defence. It alleged that the Claimant’s causes of action in tort or contract accrued in January 2007 (the date of the initial operation) and that the Claimant’s date of knowledge was no later than August 2011 (in between the development of her symptoms in July 2011 and the corrective surgery in September 2011). In her Reply the Claimant contended that her date of knowledge was not until December 2014, when she obtained her expert medical evidence. Alternatively, she invited the court to exercise its discretion under section 33 of the Limitation Act 1980 and allow the action to proceed.
Limitation was tried as a preliminary issue. The Master found that the Claimant’s date of knowledge was September 2011. There was no appeal against that finding; the claim was brought out of time. The Master then decided to exercise this section 33 discretion in favour of the Claimant, allowing the claim to proceed. The Defendant appealed against that decision, alleging that it was wrong and ought to be set aside.
The discretion under section 33 is unfettered: Nash v Eli Lilly & Co.  1 W.L.R. 782. Yip J set out the issues:
“17. There can be no doubt that this is a case where the potential prejudice to the Defendant resulting from the delay in bringing the action is particularly stark. Mr Mossa died just after the service of the proceedings in July 2015 without having any opportunity to give instructions upon them. Had the claim been brought by September 2014, the probability is that he would have been able to provide instructions. Realistically, the trial could not have come on before his death but he might have been deposed and could probably at least have provided a witness statement. Had the Master ignored the prejudice resulting from being unable now to seek evidence from Mr Mossa, he would plainly have fallen into error. However, he did not do so.
18. Having correctly set out the relevant statutory provisions, the Master accurately (it is agreed) summarised the allegations against Mr Mossa. He reminded himself that the burden of showing that it would be equitable to disapply the provisions of section 11 of the Act rested upon the Claimant. He then worked through the factors to which the court is directed to have particular regard to under section 33(3). He first considered the length of the delay and the reasons for it before looking at the impact of the delay on the Defendant’s evidence. At paragraph 44, he said this: “I readily accept that the fact of Dr Mossa’s death is a matter which would cause both prejudice and have a detrimental effect on the cogency of the evidence …”
19. Having clearly identified then the prejudice to the Defendant and the detrimental effect on the cogency of the evidence, the Master, correctly in my judgment, said that the fact of Mr Mossa’s death could not be determinative of the issue and went on to examine the context of the claim and the availability of other evidence to address the issues likely to arise at trial. He expressed the crucial question as “whether it is still possible to have a fair trial of the issues on the available evidence.” …
Given that the case against Mr Mossa was based on an allegation of lack of properly informed consent, the principles in Montgomery v Lanarkshire Health Board  UKSC 11 applied. The Defendant consequently argued that the evidence as to what was said by Mr Mossa would be of critical importance.
Yip J concluded that the Master had acknowledged that the Defendant’s evidence was “less cogent without the availability of Mr Mossa”. She went on:
“However, he considered that it was unlikely that he would have had “any detailed recollection of the Claimant or his dealings with her”. That seems to be a fair observation based upon experience of other clinical negligence actions and the evidence of Mr Mossa’s former colleague Miss Davies, who had seen the Claimant at an earlier consultation but confirmed she had “no independent recollection of Mrs Wise”.”
The Master had not been required “to spell out all the possibilities as to how additional evidence might have been placed before the Court and the detail as to what that evidence might have been”.
The Defendant complained that the Master had given too much weight to the available evidence, which included a consent form. As Yip J observed, however, he also had available to him evidence from a Miss Davies, who had run the clinic prior to Mr Mossa’s involvement, and who had originally seen the Claimant. She was able to give evidence as to the general practice within the clinic, and to put the consent form into context. The Master had also heard evidence from the Claimant, whom he had found to be honest and credible. Yip J noted:
“It is relevant to bear in mind that medical professionals are under a duty to keep accurate clinical notes. It would be difficult for a doctor to allege that he had provided significant information by way of dialogue which went well beyond what was recorded.”
The crucial question, said the Master, was whether it was still possible to have a fair trial of the issues on the available evidence. This was the right question to ask. It was not necessary for him to have set out each and every consideration he made. Moreover, the Master was required to have regard to the prejudice to the Claimant if leave to proceed was refused. “What is required under section 33(1) is a balancing of the relative prejudice a decision either way would cause to each party.”
The Defendant’s appeal failed. The Master had also ordered the Defendant to pay the costs of the limitation trial; this too was upheld on appeal.