This clinical negligence claim was brought by the widow and executrix of the estate of Mr Laurence Shaw, against Dr Maguire, a consultant pathologist. It was alleged that Dr Maguire negligently misdiagnosed malignant melanoma as benign in 2007, which ultimately led to the deceased's death in 2014.

At a trial on the preliminary issue of limitation, the court considered whether the claim was statute-barred under the Limitation Act 1980, and if so, then would it be equitable to extend the time limit under section 33 of the Act.

Master Cook found that the date of knowledge for both the Claimant and Mr. Shaw was June 2013 when it was confirmed that Mr. Shaw's melanoma had metastasized. The claim was out of time since proceedings were not issued until August 2022. 

However, the court found that it would be equitable to disapply the limitation period under section 33, considering the delays caused by previous legal representatives (indeed the claim was being indemnified as to costs by the Claimant’s previous solicitors) and the overall fairness of allowing the claim to proceed despite the time lapse. Importantly, key evidence remained available to the parties and the court. The claim was therefore allowed to proceed.

Facts

Mr Laurence Shaw, was initially diagnosed with a lesion on his back in October 2007, and samples were taken and reviewed by the Defendant, Dr Maguire, who reported the samples as benign. Based on this diagnosis, no follow-up treatment was provided. In November 2009, further samples revealed malignant melanoma, and it was subsequently discovered that the 2007 samples also showed signs of malignancy. Despite the seriousness of the diagnosis, it was initially hoped that Mr. Shaw would recover after the lesion was excised in 2009.

However, in April 2013, Mr. Shaw began experiencing symptoms that led to a further diagnosis of stage IV metastatic melanoma, from which he died in January 2014. The Claimant initially instructed solicitors in November 2014, but there were significant delays and issues in identifying the proper defendants, and the claim against Dr Maguire was not properly pursued until much later. Proceedings were only formally issued against Dr Maguire in August 2022, following a series of complications with her previous solicitors.

The Claimant’s case

The Claimant argued that Dr Maguire’s failure to diagnose the malignant melanoma in 2007 amounted to a breach of duty that directly caused or significantly contributed to Mr. Shaw’s death in 2014. She contended that if the malignancy had been identified in 2007, appropriate treatment could have been administered earlier, potentially preventing the disease's progression to a terminal stage. The Claimant asserted that the limitation period should be calculated from the date of death or from the date she acquired knowledge of the negligence, which would allow the claim to be pursued.

Alternatively, the Claimant argued that her reliance on her former solicitors, who failed to serve the claim on time, should not penalize her ability to pursue her claim. She argued that the court should use its discretion under section 33 of the Limitation Act 1980 to allow the claim to proceed, given the circumstances surrounding the delay and the continued availability of the critical histological evidence, which meant a fair trial was still possible.

The Defendant’s case

The Defendant’s primary position was that the claim was statute-barred under the Limitation Act 1980, as the date of knowledge for the Claimant commenced no later than November 2009 when the malignancy in Mr. Shaw's samples was confirmed. This meant that the claim should have been brought by November 2012. Further, the Defendant argued that the court should not exercise its discretion to extend the limitation period under section 33 of the Limitation Act 1980.

The Defendant argued that it would not be equitable to do so given the significant delay of over ten years between the original diagnosis and the issuing of proceedings. The Defendant contended that this delay had prejudiced her ability to recall the relevant events and defend herself effectively, particularly given that she had been previously informed that no claim would be pursued against her.

The Defendant also argued, based on commentary in Kemp, that the court did not have jurisdiction to exercise the discretion under section 33 in circumstances where the claim was already out of time for primary limitation at the time of the death of the deceased.

Findings

 

Master Cook found that the correct date of knowledge for both Mr. Shaw and the Claimant was in June 2013, when it became clear that Mr. Shaw's condition was terminal and attributable to the previously misdiagnosed melanoma.

The court held that a proper interpretation of sections 12(1) and 33(2) of the Limitation Act 1980, as outlined in Clerk and Lindsell, allows for an extension of time limits when requested by a personal representative, in cases where the claim was already time-barred before the deceased’s death.

He concluded that it was reasonable for the Claimant to rely on her initial solicitors and their subsequent mishandling of the case, including their failure to serve the claim on time, should not preclude her from seeking redress.

The judge reasoned that while there was a delay, it was not due to any fault of the Claimant, who had taken prompt steps to engage legal representation. Furthermore, the critical histological evidence (the histology sample itself and accompanying report) was still available, and the potential prejudice to the Defendant was not so significant as to outweigh the injustice of barring the claim entirely. The court found that a fair trial could still take place, thus justifying the decision to allow the claim to proceed.

Given the circumstances, the judge decided that it was equitable to disapply the limitation period under section 33 of the Limitation Act 1980, allowing the claim to proceed.

Conclusion

This case is another valuable example for personal injury practitioners when considering questions around the limitation periods. It illustrates how the courts may exercise their discretion under section 33 of the Limitation Act 1980 to permit claims outside the primary limitation period, particularly where claimants cannot be blamed (personally) for delay, where there is evidence of reliance on professional advice that was not competently managed and when key evidence remains available.

The link to the judgement can be found here.