Lee Witcomb v J Keith Park Solicitors
[2023] EWCA Civ 326
Karen Shaw v Brigid Maguire
25 August 2023
[2023] EWHC 2155 (KB)
High Court
A woman sued a doctor for misdiagnosing her late husband's cancer. The lawsuit was late, but the judge allowed it because the delay wasn't her fault (her first lawyer messed up) and there was still enough evidence to have a fair trial. The judge decided it would be unfair to stop her from suing now.
Key Facts
- •Laurence Shaw (deceased) was a consultant gynaecologist who died of metastatic melanoma in January 2014.
- •Brigid Maguire, a consultant pathologist, reviewed Shaw's cell samples in 2007, reporting them as benign.
- •In 2009, Shaw's lesion returned, revealing malignant melanoma; the 2007 samples were also confirmed malignant.
- •Shaw's widow, Karen Shaw, instructed solicitors in 2014, issuing proceedings in 2017 but these were not served.
- •New solicitors were instructed in 2020 and proceedings were issued against Maguire in 2022.
- •Maguire argued the claim was statute-barred under the Limitation Act 1980.
Legal Principles
Limitation Act 1980, sections 11 and 12: Special time limits for actions in respect of personal injuries and actions under Fatal Accidents legislation.
Limitation Act 1980
Limitation Act 1980, section 14: Definition of date of knowledge.
Limitation Act 1980
Limitation Act 1980, section 33: Discretionary exclusion of time limit for actions in respect of personal injuries or death.
Limitation Act 1980
The court's discretion under s.33 is unfettered and requires a balance of prejudice; the claimant must show their prejudice outweighs the defendant's.
Carroll v Chief Constable of Greater Manchester [2017] EWCA Civ 199
Delay caused by the claimant's solicitors may be excusable.
Corbin v Penfold Metallising Co Ltd [2000]
In a Fatal Accidents Act claim, if the deceased's claim was time-barred at death, the court can still exercise its discretion under s.33 to disapply the limitation period.
Clerk & Lindsell on Torts
Outcomes
The claim was not statute-barred.
The court found the claimant's date of knowledge was June 2013, and exercised its discretion under s.33 of the Limitation Act 1980 to disapply the limitation period. The prejudice to the claimant outweighed any prejudice to the defendant. The delay was largely due to the claimant's previous solicitors' negligence and the claimant's focus on her husband's terminal illness.