'In Time' Application for Time Extension Refused & No Relief From Sanctions: Six-Figure Claim Lost (Krasniqi v Watford Timber Co. Ltd) - Charles Bagot, Hardwicke

14/07/16. Krasniqi v Watford Timber Company Limited (2016) 13 April, CLCC DJ Parfitt, as yet unreported [Refer to the judgment]. This is an example of a case in which the Court refused to grant an “in time” application for an extension of time, made before the expiry of the deadline in an unless order, despite there being no trial date listed and this being a liability admitted multi-track claim for a six-figure sum. The effect of the refusal was that the claim remained struck out and the Claimant was ordered to repay £21,000 in interim payments and make a payment on account of costs of £25,000.

A separate relief from sanctions application was also refused, thought to be one of the first applications of the Court of Appeal’s latest decision on CPR 3.9, British Gas Trading Ltd. v Oak Cash and Carry Ltd. [2016] EWCA Civ 153, stressing the seriousness and significance of failing to comply with an unless order and that a lack of promptness in applying for relief is a critical factor.

The case also provides an interesting analysis of:

(i) whether a Part 18 Request for further information which seeks both an explanation, as well as documents, is properly complied with by provision of a written reply, or whether compliance requires the documents requested as well; and

(ii) whether a standard provision in an order made without a hearing, requiring an application to vary it to be made within 7 days, meant that a later application prior to the deadline for compliance with the terms of the order was to be treated as an “out of time” extension application, akin to relief from sanctions or as an “in time” application to be considered as a matter of open discretion bearing in mind the overriding objective...

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MC & JC Birmingham Women's NHS Foundation Trust [2016] EWHC 1334 (QB) - Natasha Jones, Bevan Brittan

13/07/16. This was a birth injury case which involved a claim bought by mother and son relating to an alleged delay in the management of JC's delivery on 13 February 2010. JC suffered brain damage as a result of an acute profound asphyxia and MC (mother) suffered a massive post partum haemorrhage resulting in an emergency hysterectomy. Quantum was agreed subject to liability in relation to MC's claim and the trial proceeded in respect of liability only.

MC was induced at term following an admission to the antenatal ward for raised blood pressure and concern of evolving pre-eclampsia. It was alleged that there was a failure to adequately consent the Claimant mother; there was inadequate monitoring of labour/fetal condition and a delay in transfer to the delivery suite. One of the key features of the Claimants' claim was that inadequate staffing and resources led to the injuries. It was a very busy shift on the evening in question, the ward having been short staffed in the afternoon. The Trust's own internal investigation report acknowledged the antenatal ward was extremely busy and not offering enhanced support to mothers in early labour.

On causation the Claimants sought to argue that earlier monitoring should have been in place and had that been the case it would have resulted in an earlier transfer to delivery suite and earlier delivery avoiding the PPH and brain damage. On medical causation, the experts disagreed on the underlying cause of the hypoxia and the PPH.

Giving Judgement f or the Defendant, the Judge found on breach that MC had been properl y consented. Further, there was no evidence that she would have elected to delay induction even if she had not been properly consented. He also found that the Defendant's care did not fall short of that reasonably expected in terms of assessment and monitoring. On causation he was unable to make a rational or logical choice between the stark alternatives offered by the parties on the cause of the hypoxia and PPH. As such, the Claimants had failed to discharge the burden of proof on both breach of duty and causation. He concluded by saying:

"It is perfectly understandable that those who suffer such tragically adverse outcomes will tend to assume that the doctors and midwives are to blame. This is particularly so where the unfamiliar context of an extremely busy antenatal ward is apt to give the impression of a lack of appropriate support. Nevertheless, the law is clear. Professionals, doctors and midwives alike, are to be found to be in breach of duty if the decisions they make fall outside the range of reasonable opinion and cause injury and loss. In this case, they did not and the claim must fail"

Natasha Jones
Bevan Brittan

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Material Contribution and Williams - Rebecca Richardson, Hardwicke

09/07/16. On 25 January 2016 the Judicial Committee of the Privy Council handed down judgment in the case of Williams v The Bermuda Hospitals Board [2016] UKPC 4, the most recent reported decision regarding material contribution in clinical negligence cases. While not binding in domestic courts the case is highly persuasive authority.

Mr Williams (who, unbeknown to him, was suffering from appendicitis) attended A&E complaining of abdominal pain. The hospital ordered a CT scan, but there was a delay (of at least 2 hours 20 minutes) before it was carried out. During the subsequent surgery there were complications; Mr Williams’ appendix had ruptured, leading to him developing myocardial ischaemia. Mr Williams brought a claim against the hospital board.

At first instance it was held that Williams had failed to prove that these complications were, on balance of probabilities, caused by the hospital’s failure to diagnose and treat him expediently. While a small award for pain and suffering during the period of avoidable delay was made, nothing was awarded in relation to any injury caused by the complications. Williams had failed on the ‘but for’ test.

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