The Issues:

The Claimant brought the action for clinical negligence against three Defendants relating to treatment that took place in 2013.  The Claimant agreed extensions of time in relation to limitation in respect of the first two Defendants. There was no agreement with the third Defendant.

The Claimant’s solicitor told the 3^rd Defendant that they were  “released from this matter”. Fresh advice was obtained from new counsel and a further expert’s report was obtained. In January 2017 the Claimant’s solicitors advised the 3^rd Defendant that he would be pursuing him after all. The third Defendant pleaded a defence of limitation and the Claimant made an application under Section 33 of the Limitation Act 1980.

Held:

The High Court disapplied Section 33 of the Limitation Act 1980 so as to allow the Claimant to proceed against the third Defendant even though the Claimant had previously told that defendant that he would not be sued. The High Court also held that the case law in relation to relief from sanctions was irrelevant as far as Section 33 applications were concerned.

There was no identifiable prejudice to the third Defendant in allowing the claim to proceed, whereas the Claimant would be left with potentially an uncertain claim against his own lawyers if not able to pursue his claim against the third Defendant.

Comment:

The Court held that “Denton” sanctions do not apply to Section 33 applications and that the correct guidance (for Section 33 applications) is found in The Chief Constable of Greater Manchester Police v Carroll [2017] EWCA Civ 1992. The Court’s discretion under Section 33 is unfettered and requires the Court to look at the matter broadly so what is required is a balance of prejudice.

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