Jurisdiction, Joinder and Limitation: Spring v Ministry of Defence & Anor

In this blog post, Max Archer of 12 King’s Bench Walk considers the recent decision of Spring v Ministry of Defence & Evangelisches Krankenhaus Bielefeld gGmbH [2017] EWHC 3012 (QB). Master Yoxall considered issues of jurisdiction and joinder out of time for limitation purposes under the Recast Brussels Regulation.

Facts

In 1997, the Claimant was stationed in Germany with the British Army. The Claimant very seriously fractured his right leg and ankle whilst off duty in Germany. He was then treated at the Second Defendant’s hospital under an established arrangement for the treatment of UK service personnel between the First and Second Defendants.

The Claimant was discharged into the First Defendant’s care. Despite medical advice to the contrary he was allocated non-sedentary duties. As a consequence, the Claimant’s right leg and ankle swelled badly. He underwent a second operation at the Second Defendant’s hospital and various complications in his treatment resulted in a below the knee amputation in 1998.

Proceedings were issued in 2000 and served in 2001 against the First Defendant only. A medical report obtained in pursuit of the claim threw up the possibility of clinical negligence in the treatment at the hospital. Amended Particulars of Claim pleaded negligence by the hospital surgeons but on the basis that the First Defendant was vicariously liable for the doctor’s negligence.

The First Defendant served a defence disputing any responsibility for the acts of the doctors. In 2002 the claim was stayed pending the outcome of litigation to determine the liability of the MOD in relation to medical treatment provided by German hospitals pursuant to a contract made with a NHS trust (A (A Child) v Ministry of Defence [2004] EWCA Civ 641).

The case was transferred to the QBD in 2009, a further medical report was obtained in 2010 which was supportive of the claim against the First Defendant but unsupportive of a claim in clinical negligence. The First Defendant was then given permission to rely on its own expert evidence in 2015. The First Defendant’s expert stated that the Claimant’s loss and damage was entirely caused by the negligence of Second Defendant.

The Claimant was granted permission to add the Second Defendant to the proceedings. The Second Defendant applied to set aside the order.

Issues

The court had to consider the question of jurisdiction and joinder.

As the Second Defendant was registered in Germany, the Recast Brussels Regulation applied. As the Second Defendant was domiciled in Germany the starting point was that it had to be sued there.

The Claimant sought to rely on article 8(1) which states that where the Defendant is one of a number of Defendants, he must be sued in the courts for the place where any of them is domiciled: ‘provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings

The court held that it had jurisdiction as per article 8(1): in this case there was a risk of irreconcilable judgments on the basis that a German court and the English court might come to irreconcilable conclusions on causation of loss. As the claims were closely connected it was found that it would be expedient to hear all of the claims together so that the factual evidence and expert evidence could be heard by one court. The court noted that 8(1) mandates a broad, common-sense approach and contains no requirement that the claims have identical legal bases.

As to joinder, the question fell to be determined under CPR r. 19.5 as it concerned the addition of a party after the expiry of the limitation period under the Limitation Act 1980.

CPR r. 19.5 reflects s. 35(5)b and s. 25(6) of the Limitation Act 1980. In terms, these state that amendment to add a party will only be allowed in restricted circumstances. The restrictive nature of these provisions is a consequence of the doctrine of relation back. The effect of s. 35(1)(b) is that the new claim, if permitted, is deemed to have commenced on the date of the original action. And yet one must not deprive a Defendant of its limitation defence; if the Hospital were to prove an arguable limitation defence, joinder should not be permitted unless the claim could not properly be carried on against the First Defendant without the Hospital being added as Defendant.

The court had competing views from experts on German law on the question of whether the Second Defendant had an arguable case on limitation.

Ultimately, the court decided this in favour of the Second Defendant. It was found that under German Law the 3 year period starts running at the end of the calendar year in which the claim originated, provided that the Claimant has knowledge of the damage, the facts supporting liability and the person liable. Given that the surgery took place in 1997, and that the Claimant pleaded a form of clinical negligence against the Hospital surgeons in 2001 limitation was found to be arguable. Further, it was found that the claim against the First Defendant could be properly continued without the Second Defendant being added as a Defendant.

The court refused to follow the decision of Master Clark in Burton v Bowdery [2017] EWHC 208 (Ch). In that case the court was willing to join a party after limitation on the basis of s. 35 of the Limitation Act, holding that there was no doctrine of relation back in relation to third party proceedings, thus defeating a Defendant’s limitation defence. The court expressly disavowed the reasoning in Burton and held that the action in Burton and in the present case could not be properly regarded as a ‘third party claim’ within the meaning of RSC 0.16 of CPR Part 20.

The court therefore refused to add the Second Defendant as a party.

The effect of decision was that the Claimant was left to pursue his clinical negligence claim in Germany. It was noted by the court that an alternative might be to bring a separate claim in this country against the Hospital following Masri v Consolidated Contractors International (UK) Ltd & Ors [2006] 1 WLR 830.

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