This hearing involved an attempt to re-open a clinical negligence claim over fifteen years after it had originally been discontinued during a hearing before another High Court judge.
JA was born in 1997 and suffers from severe cerebral palsy. He was delivered by Caesarian section at Leighton Hospital in Crewe, at 36 weeks, following a fall suffered by his mother at home. Legal proceedings were first commenced in August 2004 and focussed upon alleged delays in delivery, both in terms of the time taken by hospital staff to decide upon a section and the period between decision and birth.
As is standard, both claimant and defendant obtained reports from clinical experts. These were initially supportive of the respective cases, but two of the claimant’s experts then amended their views, which meant that his lawyers were far less confident than they had been previously as to their client’s chances of success. However, they made a conscious decision not to add a claim in respect of the development of hypoglycaemia after birth, which was a possibility on their evidence, because that would have been contrary to the views of their paediatric expert.
On behalf of JA an application was made to the High Court to adjourn the trial and to seek a fresh obstetric opinion. On 8 June 2006, Swift J. heard the application and, having weighed up the arguments, declined it. She considered that there were no exceptional circumstances and that an expert changing views was not unique. Following a short adjournment, the claimant’s legal team concluded that it was impossible to carry on with the claim and undertook to discontinue it. They also decided that any appeal against the judge’s order was unlikely to succeed, so did not pursue one.
In 2013, some seven years later, the claimant’s solicitor reflected on a 2008 decision of the Court of Appeal (Bailey v. Ministry of Defence) and thought it might provide a tenable basis for arguing that the defendant’s alleged negligence made a material contribution to JA’s condition. A letter was sent to the trust in September 2014 to this effect, and the trust’s solicitors responded that liability remained in dispute. No further contact was made by JA’s solicitor for several years, as a result of which NHS Resolution closed our file for a second time in 2015.
In January 2021, after a further six years, JA’s solicitor made an application to the High Court under Civil Procedure Rule 38.7 for permission to reinstate the claim on an extended basis. This included an allegation that the trust had not obtained appropriate consent for the decision to take stock rather than deliver as an emergency, and alleged negligent failure to allow JA to develop hypoglycaemia after his birth.
Mr. Justice Eyre stated that factors in favour of allowing the claim to be revived included the catastrophic effects of JA’s cerebral palsy, the fact that any award would make a real difference to his life and that of his family, and that a successful claim would be a vindication of the family’s position. On the other hand, the claim was discontinued on the first day of a High Court trial, there was an absence of any appeal against Swift J’s ruling, and the amount of court resource already taken up by the case was considerable. Further, the ruling in Bailey did not constitute a change in the law, which might have strengthened the claimant’s argument, and if the case were allowed to proceed the trust would be faced with a much broader claim than it did in 2006. On balance, the arguments advanced on behalf of JA were insufficient to overcome the court’s disinclination to permit reintroduction of the claim, and the application would therefore be refused.
Claims that are revived after seemingly falling away are by no means uncommon. However, what was unusual about this case was the fact that it had actually proceeded as far as a High Court trial before being abandoned. That was the reason court permission was required to resurrect it, coupled with the fact that it involved the same facts as those of the first claim. No-one on the defence side had anything but great sympathy for JA and his family, given his serious condition, but litigation is intended to be final. Only in the most exceptional circumstances will the courts permit seemingly resolved cases to be brought afresh. Examples might include important new evidence coming to light or a retrospective change in the law. It is normally in the public interest, taken as a broad concept, for litigation not to be perpetuated.