An Appeal to Discretion: Sakandar Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB)

Written by Gemma Lieberman.

Background

Claimant underwent gynaecomastia surgery in March 1996, performed by a surgeon who died in April 2014. The claim was issued in July 2017 alleging the surgery was of a poor standard and undertaken using inappropriate technique as a consequence of which he alleged severe pain, chest wall distortion and significant scarring.

Details of the judgement can be found here.

First Instance In a Sentence

The Claimant succeed at the trial of the preliminary issue of limitation before His Honour Judge Rawlings who held that although the primary limitation period had expired in March 1999 because the Claimant had the necessary knowledge for the purposes of s.14 of the LA 1980 in 1998, it was equitable on the facts before him to give the Claimant permission to pursue his claim applying s.33 LA 1980.

First Instance In More Depth

The Judge considered each of the statutory circumstances set out in s.33(3) noting that the burden was on the Claimant to satisfy him that the discretion should be exercised in his favour but there was an evidential burden on the Defendant in relation to the prejudice said to have been caused by the delay, in the sense that it was the Defendant who would be likely to have evidence as to the extent of the prejudice caused to it by that delay.

Under S.33 (3) (c) & (d) The Judge found no conduct on the part of the Defendant which could be relied upon, nor did the Claimant have any disability that would have prevented him from bringing proceedings. He also found that the Claimant did not act promptly in obtaining medical and legal advice after he raised the possibility of having the surgery redone in 1998. It should have been in his mind that there was some question as to whether the original operation has been carried out in a correct and professional manner.

In respect of an allegation of that the surgeon had failed to obtain appropriate informed consent the Judge found that there might well be significant prejudice to the Defendant if this head of claim were to proceed as there could be no direct evidence from the late surgeon as to whether the downsides of the surgery, or other options were adequately discussed, or as to what his usual practice would be. This element of the claim did not receive permission to proceed.

However, the Judge found that absence of live evidence from the late surgeon would not prejudice the Defendant. He would have been very unlikely recall the operation even if it had been brought within the 3 year limitation period. The evidence as to what was done in the operation and how well it was done, remains the effect in the appearance of the Claimant’s chest. This had been reviewed by the Claimant’s own expert and could be so by the Defendant’s. Both experts would be relying on the contemporaneous notes to opine on both the technique which was performed and competence with which it was carried out.

On Appeal Before Mr Justice Saini:

Basis of appeal:

• Ground 1: The loss of the operating surgeon’s evidence was the “very epitome” of forensic prejudice and the Judge had been wrong to find otherwise.
• Ground 2: The Judge had not performed the necessary balancing exercise when considering s.33. LA 1980 factors, namely that the delay had been 18 years, no reasons for the delay were advanced, other than the Claimant had accepted from the operating surgeons that the outcome was reasonable, there was no conduct on the part of the Defendant, and the Claimant had no disability, and there was an absence of promptitude on his part.
• NB: No error of law was advanced; the Appellant reliant on the “narrow and confined bases upon which an appellate court can interfere with discretionary assessment of the Section 33 LA 1980 type” (Paragraph 46).  

Appealing Discretion: A Word To Those Considering

This case helpfully sets out that an appellate court will only interfere with a discretionary evaluation where an appellant can identify one or more of the following errors:

1. A misdirection in law
2. Some procedural unfairness or irregularity
3. That the Judge took into account irrelevant matters
4. That the judge failed to take account of relevant matters; or
5. That the Judge made a decision which was “plainly wrong

As to (e) above, this means a decision which “has exceeded the generous ambit within which reasonable disagreement is possible…even if the appeal court would have preferred a different answer, unless the judge’s decision is plainly wrong it will be left undisturbed”. The Appellant was gently chided that “using terms such as “perversity or “irrationality” was merely likely to cause confusion”, and that it is a high hurdle for an appellant when the challenge is to the outcome of a discretionary balancing exercise. Once a judge has had regard to the relevant considerations it will be rare that they will arrive a conclusion outside the very wide perimeter of discretion permitted by the appellate court.

Abridged Analysis of Appellate Court

There was no misdirection in law. The Judge systematically went through his own analysis, correctly directed himself on the evidential burdens, considered all the circumstances of the case and considered the leading case (Cain v Francis 2008 EWCA Civ 1451) and noted that a defendant only deserves the obligation to pay damages to be removed if the passage of time has significantly diminished its opportunity to defend itself. Accordingly, it was held that before one assessed the discrete complaint regarding the exercise of discretion, in this instance one starts from the position that the Judge’s directions in relation to the approach to the legal test were impeccable. “Once that conclusion is reached the task of the appellate court becomes heavily circumscribed: was the Judge entitled to reach the determination on the basis of the individual factors evidenced before him, stepping back and looking at the overall fairness and justice”? (Paragraph 56). At paragraph 57 the appellant is warned: this is not an opportunity to reargue the same points made at first instance.

The Appellant had not adduced any evidence of any steps that it had taken to try and trace any other witnesses it had identified, or any issues these witnesses may have had with their recall of events. The witness statement of the Appellants legal officer prepared 4 years after the first notification of the claim mad not mention of any untraced or untraceable witnesses. At paragraph 61 “These are matters which mandate evidence if a party wishes to assert prejudice given the evidential burden is on the party asserting prejudice”. Accordingly, the Appellants assertions concerning the absence of other witnesses were “pure speculation in the absence of evidence”, which the Judge was entitled to exclude from consideration, even if he did benevolently bear the point in mind to some extent. He was right to noted that other factual witnesses were unlikely to be important concerning whether the surgeon was negligent.

The Judge hadn’t found that the medical records were “detailed and impressive” but that “they appear on their face to be relatively comprehensive”. Mr Justice Saini found that even if the records contained little detail, any forensic prejudice arising would not have resulted from the delay in commencing proceedings, as it must do to weigh against the exercise of the discretion. It would be perverse for the Appellant to rely upon its own clinicians short comings in record keeping as a ground of prejudice in its favour. Even if the claim had been brought before the surgeon’s death it would have been difficult for him to add significant information which did not appear in those records because, as found, it would have been highly unlikely that he would have recalled the operation, and any such additional information should have been recorded in the records.

That the Judge disallowed the claim for lack of informed consent further illustrated the care with which he exercised his discretion.

It was not self-proving that the death of the operating surgeon was automatically prejudicial to the case. It was an important factor and could be of substantial weight, but not on the facts of this case. There was no evidence from any expert on behalf of the Appellant as to what assistance the late surgeons evidence would have provided. The Judge was entitled to find that any evidence as to the late surgeons standard practice would have been of little assistance, especially with the notes available to the court.

Ground 1 failed. The Respondent’s expert evidence was uncontradicted by any expert evidence from the Appellant. Even if a comprehensive report would have been premature on the grounds of proportionality, a report in outline terms explaining how the evidence of the operating surgeon would be relevant to the claim could have been commissioned. It was a litigation risk open to the Appellant to proceed to the limitation trial without such evidence. The Appellant had to establish its case on prejudice flowing from the surgeons death by evidence and not mere assertions.

Ground 2 failed. Throughout the material parts of the judgement the Judge performed a balancing exercise without failure by correct directions of the law, identification of the material facts, and a balancing of those matters. As per paragraph 83: “This was not a case where all the factors went one way. Even if the balance sheet weighed heavily against [the Claimant] there was no error of law in the Judge’s approach to give the lack of prejudice point significant weight. That was a matter for him”.

The Judge had not ‘opened the floodgates’ for stale claims, or where the treating clinician had died, each case turns on its own facts. The Judge had directed himself correctly in law, identified the relevant considerations on the evidence and these were the considerations which informed the exercise of his discretion.

Take Home Points

Discretion is a wide judicial privilege. In the face of a well-structured and correctly directed judgement an appeal on grounds that the Judge failed to exercise their discretion, with no error of law, or irrelevant considerations at the heart of it, is bound to fail.

Evidence must be relevant. It is the relevance of evidence available to all parties, material to the claim, which will determine the fairness or not of the exercise of the courts discretion in applying the s.33 LA 1980 criteria. Hence, the informed consent argument failed as the relevant evidence from the deceased surgeon would not be available. The Claimant’s delay therefore counted against him on this aspect of his claim.

Historic claims might surface. This is the type of judgment that might add succour to Claimants generally, and as the Appellant suggested, give rise to more historic claims. However, it remains extremely fact specific. It is a wonder that no detailed explanation appears to have been given as to the substantive cause of the Claimant’s delay, save that the he was assuaged by reassurance from the operating surgeon that the outcome was acceptable, and that he had suffered depression following the death of his daughter. The first reason is surely not uncommon, the second whilst sad and extremely unfortunate, depression and poor mental health are well known factors in claims brought well with the primary limitation period.

Don’t score an own goal. The Defendant Trust failed to adduce any expert evidence at all, either as to potentially undermine the Claimant’s expert as to negligence per se, or as to the detriment caused by the absence of any evidence from the operating surgeon. It is unclear whether this is because no such evidence could be obtained, or because it was deemed finically and tactically the correct approach at the time.