Prejudice – A defendant’s burden

The recent case of Azam v University Hospital Birmingham NHS Foundation Trust (in the High Court, on appeal from the County Court) explores the issues of limitation and prejudice. It outlines once again that the burden is on the defendant to prove actual prejudice to their case, as a result of the claimant’s delay.

Case background

The claim related to surgery carried out in 1996 for the correction of Mr Azam’s gynaecomastia. This surgery was carried out by Mr Campbell who was, at the time, senior consultant surgeon at Selly Oak hospital. Following the operation, a letter written to the claimant’s GP stated that the surgery had left an ‘acceptable cosmetic appearance’ and that the claimant’s ‘scars have healed well’.

There was evidence within his medical records that Mr Azam was dissatisfied with the outcome of his surgery as early as 1998. His GP had indeed enquired with Mr Campbell’s office about the possibility of getting the operation re-done. The notes suggested that the GP had been advised that Mr Azam would need to be re-referred if he wished to pursue this course of action. Whilst it does not appear that any action was taken by Mr Azam, this entry indicated that he must have been dissatisfied with the surgery as early as two years post-operation.

In 2014, Mr Azam attended another surgeon at Sandwell hospital. He was offered revision surgery but significant concerns were raised regarding the potential difficulties in performing a satisfactory correction and potential adverse consequences. Mr Azam did not take up the offer of revision surgery .He did go on to seek legal advice, entering into a Conditional Fee Agreement with solicitors in April 2015.

The claim was denied on the basis that the primary limitation period had expired in 1999 and due to the death of Mr Campbell in 2014, the defendant was said to be severely prejudiced as a result of the claimant’s delay in bringing the claim.

First Instance

Limitation was tried as a preliminary issue on 2 September 2019. His Honour Judge Rawlins, sitting in the County Court at Birmingham, held that the claim was statute barred but allowed the claim to proceed using his discretion under s.33 of the Limitation Act 1980.

The Judge noted that it was up to Mr Azam to satisfy him that discretion should be exercised in his favour. He also noted an evidential burden on the defendant as to the prejudice caused by the delay. In considering this the Judge asked whether it was likely that Mr Campbell would have been able to comment on all of the intricacies of the operation, even if it had been brought within the thee year limitation period. He found that this was unlikely. In any event, the evidence as to what was done in the operation and how well it was performed, remained in effect the appearance of Mr Azam’s chest.

The medical records relating to pre and post operation were also available and seemed to the Judge, to be relatively comprehensive. Evidence was therefore available to the defendant’s medical expert to provide an opinion to the court as to whether the operation was negligent. The Judge did not feel that Mr Campbell’s evidence would have provided anything to the court beyond that the defendant’s medical expert could provide.

Having considered the points raised in s.33, the Judge exercised his discretion and allowed the claim to proceed. The Trust appealed.

The Appeal

The Appeal was heard before The Honourable Judge Mr Justice Saini on 7 December 2020.

Counsel for the Trust submitted that the Judge had erred when assessing forensic prejudice and had failed to perform the balancing exercise on the basis of all the factors outlined in s.33 of the Limitation Act 1980.

Mr Justice Saini rejected both grounds of appeal. He found that the Judge had clearly considered and balanced all of the factors and the appeal was said to be a thinly veiled attack on the Judge’s exercise of his discretion.

Mr Justice Saini’s judgment identified key areas where the Trust could have adduced evidence to prove that they were significantly prejudiced as a result of the claimant’s delay.

Firstly, the Trust submitted that the evidence adduced or likely to be adduced at court was less likely to be cogent as a result of the delay. Mr Justice Saini said that this could not be made out on the basis of bare submissions. There had to be some evidential or sound inferential basis to make such a finding. Apart from the absence of Mr Campbell, the Trust had adduced no evidence of any steps it had taken to try and trace any potential witnesses. Without such evidence their submissions were pure speculation.

Mr Justice Saini agreed that, even if the claim was brought prior to Mr Campbell’s death, it would have been difficult for him to add any significant information to assist the trial Judge. He would be unlikely to recall that specific operation. Any material information should be contained within the medical records. It would be wrong in principle for the Trust to rely on its own clinician’s shortcomings in record keeping as a ground of prejudice in its favour.

Mr Justice Saini concluded that prejudice was not self-proving following the death of a witness. He commented that this was even the case in abuse claims where the alleged perpetrator was deceased. It was not a trump card for a defendant.

Keoghs comment

This judgment acts as a strong reminder of the burden on defendants to adduce evidence to support submissions about prejudice – something seen in recent asbestos limitation cases such as Gunn and Gregory.

Defendants should serve a detailed witness evidence outlining the investigations carried out to locate documents and witnesses. Expert evidence will often be useful to demonstrate the effect of gaps in evidence on the issues in the case.

The more evidence to support submissions regarding prejudice, the better the prospects of success!

For more information, please contact Jennie Witherington.