Limitation – Mossa v Wise

The cases of Mossa v Wise [2017] EWHC 2608 (QB) and Ellis v Iyer and others [2018] EWHC 3505 (Ch) show the hurdles Defendants face in seeking to successfully pursue a Limitation Defence.

This is Part 2 of a 3-part series and covers the case of Mossa.

Ellis was covered in Part 1 and can be found here

Part 3, a summary guide, can be found here

Mossa was an appeal brought by the Defendant against an Order made by Master Cook on 10 May 2017, which allowed the Claimant to proceed via section 33 of the Limitation Act 1980 (‘the Act’). The Defendant was ordered to pay Claimant’s costs of the limitation preliminary issue too. Mrs Justice Yip considered the appeal on 19 October 2017.

Facts

1. Mr Mossa was a Consultant Gynaecologist who practised at Benenden Hospital (a private hospital). In January 2007 he performed surgery on the Claimant to treat her urinary stress incontinence. He used TVT Secur Gynaecare vaginal tape, a product manufactured by Johnson & Johnson.
2. It was the Claimant’s case that while she initially had an improvement in her symptoms she suffered a relapse after about 6 months. She then developed increasing pain and other unpleasant symptoms. In July 2011 she suffered sudden heavy vaginal bleeding and pain. Investigations revealed that she had suffered erosion of the TVT tape into the vagina. She underwent corrective surgery in September 2011. She underwent a hysterectomy and colposupension procedure in January 2013 and suffered with ongoing residual symptoms.

Procedural position

3. On 2 September 2014, the Claimant commenced a product liability claim against Johnson & Johnson. That followed from her hearing of a case in Scotland involving the use of TVT tape which led her to make enquiries and discover that the same product had been used in her case. She instructed solicitors and an expert medical report was obtained in December 2014.
4. Following a conference with Counsel, a claim was also issued against Mr Mossa on 17 July 2015, alleging that he failed to obtain proper informed consent to the procedure. It was said that he failed to provide adequate information about the TVT product and the procedure used and that he failed to advise properly as to alternative treatment options.
5. The Claim Form was served on 24 July 2015 at Mr Mossa’s home address. At that time he was in the final stages of a terminal illness. His wife forwarded the proceedings to Benenden Hospital but Mr Mossa died a short time later without being aware of them.
6. A Defence was served on behalf of Mr Mossa’s Estate on 30 March 2016 and raised a Limitation defence, stating the causes of action accrued in January 2007 and that the Claimant’s date of knowledge was no later than 22 August 2011 (when the need for corrective surgery had been confirmed), and therefore would have expired in August 2014. It was argued the claim was statute barred. Directions were given for preliminary issue hearing on Limitation.
7. The Claimant contended that her date of knowledge was not until December 2014, when the expert medical evidence was obtained, as part of the investigation into the defective product claim. In the alternative, she asked the court to exercise its discretion pursuant to section 33 of the Act to allow the action to proceed.

The preliminary hearing on Limitation

8. The hearing of the preliminary issue came before Master Cook on 22 March 2017. He heard evidence from the Claimant, who was cross-examined and also considered a witness statement served for the Defence, together with relevant extracts from the Claimant’s medical notes.
9. Master Cook found that the Claimant’s date of knowledge was September 2011 (date of the corrective surgery).
10. Section 33 – Master Cook considered the discretion under section 33 of the Act. His conclusion was that, looking at all the circumstances and balancing the prejudice on each side, it would be equitable to allow the claim to proceed.
11. The Master subsequently ordered the Estate pay the Claimant’s costs of the Limitation trial.
12. The Estate appealed the Master’s decision in relation to the exercise of his discretion under section 33, arguing it was wrong and ought to be set aside. The costs order was also appealed on the basis the Defendant had succeeded in establishing date of knowledge was earlier than the Claimant had contended so had, to an extent, been successful in the hearing of the preliminary issue.

The Appeal before Mrs Justice Yip

13. Issues for the Claimant:

• Issuing proceedings ten months outside of the Limitation period;
• In a case relating to the principles of informed consent;
• Where the delay in issuing proceedings was the difference between the Defendant being served with proceedings before death, so having the opportunity to provide a witness statement, and not.

14. Yip J found in favour of the Claimant, stating that as in accordance with the leading case of Tanfern Limited v Cameron MacDonald [2000] 1 WLR 1311, the appellate court should interfere only where the decision at first instance has “exceeded the generous ambit of discretion within which a reasonable disagreement is possible.”
15. The Estate asserted that Master Cook “failed properly to take into account material factors and gave inappropriate weight to other factors such that the exercise of discretion resulted in a decision that was wrong/exceeded the generous ambit within which a reasonable disagreement is possible.”
16. Yip J dismissed the Appeal and concluded that Master Cook’s judgment was “sufficiently clear and thorough…” and that he had  “weighed all the evidence and the evidential gaps resulting from Mr Mossa’s death before reaching the conclusion that a fair trial was still possible.” Yip J noted that Master Cook had undertaken the careful balancing act required and had given consideration to the death of the Defendant and the impact that had on the defence evidence.
17. Yip J noted the potential prejudice to the Defendant, and that had the claim been brought in September 2014 he may have provided a witness statement. However, Yip J noted that Master Cook had not ignored that prejudice and had balanced it in the decision. The death of Mr Mossa would not be determinative of the issue, and it was necessary to examine the context of the claim as a whole.

Yip J’s more detailed observations

18. Master Cook expressed the crucial question as “whether it is still possible to have a fair trial of the issues on the available evidence.”
19. The case against Mr Mossa was founded on informed consent  (as per Montgomery v Lanarkshire Health Board [2015] UKSC 11) The Estate argued that consideration of the dialogue between doctor and patient was therefore at the heart of the case that the oral evidence (or inability to rely on the same) of the clinician is likely to be of very great importance.
20. Yip J was satisfied that Montgomery was properly considered when looking at the prejudice but that alone would not be determinative, and Master Cook had “conducted a careful analysis of the evidence still available and had regard to the likely position had the claim been brought in time.”
21. Whilst the Defendant’s evidence was likely to be less cogent without Mr Mossa he noted that it was unlikely he would have had “any detailed recollection of the Claimant or his dealings with her”. On this point Yip J noted the evidence of Mr Mossa’s former colleague Miss Davies, who had seen the Claimant at an earlier consultation but confirmed she had “no independent recollection of Mrs Wise”.
22. It was also noted that there was a consent form, and that given medical professionals are under a duty to keep accurate clinical notes she concluded that it would be difficult for a doctor to allege that he had provided significant information by way of dialogue which went well beyond what was recorded.
23. Overall Yip J held that Master Cook did not give inappropriate weight to the prejudice to the Claimant if unable to proceed with the claim and that ”… he properly exercised his discretion and there is no basis for interfering on appeal”.

I have not discussed the Appeal of the costs order in this note. In short, it too was unsuccessful.

Lessons learned

It’s hard for those representing defendants to find solace in the case law governing Section 33 of the Act and Judicial discretion.

The legal representatives for the Defendant may have struggled to find a witness able to provide a statement and it transpired the statement from Miss Davies, which was designed to show the importance of Mr Mossa’s witness evidence, may have undermined the importance of Mr Mossa’s evidence. Of note for Defendants is also the weight placed on the consent form, and the age-old issue of making sure that the contemporaneous records are full and accurate.

A final thought goes to the perils in seeking to appeal a detailed judgment. Unless there is a clear misunderstanding on the part of the Judge – or a clear error – then the Appellant will find it very hard to achieve the outcome they hope for.