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Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB) - Paul Erdunast, Temple Garden Chambers

30/01/21.This case is a helpful reminder that if a party wishes to rely on prejudice against it, it should provide evidence of such prejudice. This applies in numerous situations, such as applications for relief from sanctions, arguments about resiling from admissions, and in this case, which concerned whether to extend limitation to allow a claim being issued roughly 20 years out of date.

Furthermore, Saini J in this case provides a deliciously tight summary of the principles relevant to appeal of the exercise of discretion.

Relevant facts

The Claimant sought to make a clinical negligence claim regarding gynaecomastia surgery that took place on 9 March 1996. HHJ Rawlings on 2 September 2019 permitted him to proceed with his claim, making an Order under s33(1) Limitation Act 1980 following the trial of a preliminary issue regarding limitation. s33(1) Limitation Act 1980 provides the power to allow an out-of-time claim to proceed if it would be equitable to do so, having regard to the degree of prejudice to the Claimant if the action does not go ahead as compared with the Defendant if it does. s33(3) Limitation Act provides several further matters which the court ‘shall’ have regard to.

The Defendant appealed, relying on the prejudice that would be faced by the Trust in defending the claim, suggesting that HHJ Rawlings had failed to perform the necessary balancing exercise of the factors in s33 Limitation Act 1980.

Decision of Saini J

Appealing the exercise of discretion

First, Saini J summarised the law as to appealing the exercise of discretion in a way perfectly designed to be packaged into skeleton arguments in...

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