When can you revive a discontinued claim?

Background

The applicant and prospective claimant, Jason Astley, was delivered by caesarean section after his mother fell when she was 37 weeks pregnant. He was left severely disabled with cerebral palsy due to oxygen deprivation.

The applicant originally brought proceedings against Mid-Cheshire Hospitals NHS Foundation Trust (“the Trust”) in 2004. 

The main allegations in those proceedings were that:

• The decision to deliver by caesarean section was taken too late
• Delivery should have taken place within 30 minutes of that decision

“But for” those delays it was claimed the applicant would have avoided permanent brain damage.

Those proceedings were due to come to trial in June 2006. Shortly before trial, the applicant’s two independent experts attended an expert meeting and their evidence shifted significantly.

The applicant’s solicitors, considering that the new expert evidence effectively destroyed his case on “but for” causation, applied for permission to seek fresh expert evidence – when this was refused, the applicant discontinued the claim.

CPR 38.7

CPR 38.7 states that where a claim is discontinued after a defence is filed, the claimant needs the court’s permission to make another claim against the same defendant arising out of “facts which are the same or substantially the same as those relating to the discontinued claim”.

The White Book elaborates, stating that permission is likely to be given:

“…for example, where the claimant was misled or tricked by the defendant, where important new evidence has come to light or where there has been a retrospective change in the law (e.g. a Supreme Court case overruling a Court of Appeal decision which had led the claimant to discontinue).”

Bailey v Ministry of Defence

The 2008 Court of Appeal case of Bailey v Ministry of Defence held that, in a case where medical science could not establish causation on the usual “but for” test, it was enough for a claimant to show that a negligent cause made a “material contribution” to their injury.

Relying on this case, in September 2014 the applicant’s solicitors wrote a Protocol letter to the Trust outlining that the applicant may have a tenable case applying the “material contribution” test from Bailey. 

The Trust’s solicitors wrote back disputing liability. Correspondence between the parties then ceased as the applicant’s team had difficulties obtaining litigation funding.

However, in January 2021 the applicant applied for permission to revive his claim based on a “retrospective change in the law” as described in the White Book, relying heavily on the contention that Bailey had changed the law.  

The applicant’s evidence for this was primarily the change in practice of clinical negligence lawyers following that case, and the new understanding of “material contribution” in causation.

The court’s approach to Bailey

The court in Astley held that Bailey was not a change in the law, only a clarification of existing and long-standing case law. While the absence of clarity prior to Bailey may have explained why the applicant’s lawyers acted as they did in 2006, Bailey was not a change in the law akin to the White Book’s example of the Supreme Court explicitly overturning a Court of Appeal authority.

More importantly, the court considered this a moot point. The examples in the White Book, including the “retrospective change in the law”, do not have the force of statute or Rules – they are merely examples.

The test for reintroduction of a claim

The court confirmed that the true test for re-introduction of a claim was as described in Hague Plant Limited v Hague and others, namely whether, “…a sufficient explanation was offered for its re-introduction to overcome the court’s natural disinclination to permit a party to re-introduce a claim which it had after careful consideration decided to abandon.”

This test takes the form of a balancing exercise, considering the public interest and all of the relevant factors “in the round”.

Relevant factors

The judgment in Astley helpfully broke down what the court considered the “relevant factors” in this application, which may be useful in assessing other applications under CPR 38.7.

The factors in favour of reviving the claim were:

• The severity of the claimant’s injury.
• The lack of a legal determination of whether the Trust was negligent.
• The realistic prospect of success of the claim.
• The likely size of the award (and the benefit this would have to the claimant’s life).
• The claimant’s genuine efforts to bring the claim promptly once the argument for revival was identified (prevented only by funding difficulties).

The factors against giving permission were:

• The applicant’s choice not to appeal the original judge’s decision but instead to discontinue.
• The time and resources already spent on the claim.
• The inherent detriment to the Trust of having to defend the revived claim.
• The wider scope of the revived claim (now including new allegations and Montgomery v Lanarkshire consent issues) compared to the original.
• The unavailability of one of the Trust’s original experts.
• The Trust’s belief (which they were entitled to rely on) that the matter was ended in 2006, and again in 2014 when they received no reply to pre-action correspondence.

The court also stated that the presence or absence of any other form of redress (for instance, a claim in negligence against the original solicitors who advised discontinuing) could generally be a factor, but in this case the original solicitors’ negligence (or lack of) was a dispute between the parties which the court could not determine on the application for re-introduction.

Having undertaken this balancing exercise, the High Court refused permission to re-introduce the claim, despite its sympathy for the applicant’s position.

Comment

The High Court’s decision in Astley is significant mainly because the alternative outcome – a finding that Bailey changed the law and “material contribution” could be used to revive claims discontinued before 2008 – could have led to a wave of historic claims.

As things stand, the decision in Astley (subject to appeal) provides useful clarification on how the courts will approach an application under CPR 38.7. It suggests that judges will remain reluctant to grant such applications, even in cases such as Astley where they are clearly and understandably sympathetic to the applicant.