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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barnes v Suffolk Health Authority [2001] EWCA Civ 1175 (9 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1175.html Cite as: [2001] EWCA Civ 1175

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LINCOLN COUNTY COURT
(HIS HONOUR JUDGE JENKINS)

		Royal Courts of Justice Strand London WC2 Monday, 9th July 2001

Monday, 9th July 2001

1. LORD JUSTICE ROBERT WALKER: There are before the Court two applications for permission to appeal by Mrs Monica Barnes, who has appeared in person with very capable assistance from her husband. Mrs Barnes wishes to appeal from two orders of His Honour Judge Jenkins made in the Lincoln County Court on 19th March 2001. Those orders dismissed appeals by Mrs Barnes from two orders of District Judge Hickinbottom made in the Worksop County Court on 25th August 2000. The effect of the district judge's orders, confirmed by the judge, was to strike out two claims for damages for clinical negligence made by Mrs Barnes against two different health authorities.
2. The claims were as follows: Claim number WS 901318 was commenced on 1st November 1999 against the Bassetlaw National Health Service Trust. That trust is based in or near Worksop, which is not far from Sheffield where Mr and Mrs Barnes live. The other claim was number WS 901336 commenced on 5th November 1999 against the Suffolk Health Authority which is responsible for, among other things, the Newmarket District General Hospital. Mr Barnes has explained to me this morning that there was a third set of proceedings also in the Worksop County Court, WS 802466 which was commenced in December 1998 against the Bassetlaw National Health Service Trust. Each of the two claims started in November 1999 but as brief details of the claim:

"Damages for personal injury sustained and loss and expenses incurred by the claimant as a result of negligence of the defendants, knowledge of which the claimant gained in/or around 5th November 1996."

3. That is exactly three years before the second set of proceedings were commenced. One matter of complaint is that the county court did at one stage confuse the three sets of proceedings which I have mentioned. That is regrettable but I can see nothing sinister in it. It is the sort of mistake which unfortunately is made from time to time.
4. This matter has a long and very unhappy medical history. The fullest account from a professional source is in a letter dated 7th August 2000 from Mrs Barnes' General Practitioner, Dr Tooth, to a consultant orthopaedic surgeon at Sheffield's North General Hospital. Mrs Barnes has unfortunately had many years of trouble and pain with her right leg and especially her right knee. I have no difficulty at all in accepting the short but eloquent account which Mrs Barnes has given me of the trials that she has had to put up with for many years.
5. As a teenager she had recurrent dislocation of both patellae (that is kneecaps). This may have been caused by a fall off a bicycle when she was eight. In 1959 she had an operation on her left knee which was largely successful. Ten years later, in 1969, she had an operation on her right knee which was unfortunately much less successful, and she has since then had many more examinations, x-rays and operations. It has been explained to me by Mr and Mrs Barnes this morning that she may yet have a further operation, but at the moment that is in abeyance because of this pending litigation. In 1987 Mrs Barnes had another operation on her right knee, but she then had the grave misfortune to have a fall three weeks later which set back her possible recovery. She also had another fall at Grimsby in 1996 in which her right ankle was broken. It is therefore impossible to exaggerate the troubles and pain which Mrs Barnes has had to put up with.
6. Her main complaints against the two health authorities appear from draft particulars of claim dated 13th March 2001 which Mrs Barnes has prepared and placed before the Court. In claim WS 901336 (against Suffolk Health Authority) Mrs Barnes complains of clinical negligence on the part of an orthopaedic surgeon, Mr Dandy, who operated on her at Newmarket District General Hospital on 29th November 1989 and, it is said, reported having found nothing abnormal. Mr Dandy is in fact an eminent orthopaedic surgeon who teaches, I think, at the Medical School at Cambridge University, and it was because of his eminence that Mrs Barnes was referred to him. It is a sad irony that this special arrangement made for her has proved so unsatisfactory.
7. Mr Dandy is said to have been negligent in making a wrong diagnosis, missing the real problem and suggesting that Mrs Barnes had a mind problem. The real problem, on Mrs Barnes' case, was that she had already for some years then had a foreign body, possibly a piece of suture in her right knee, which in the course of time calcified and has been the cause, or one of the causes, of the pain and distress which she has since suffered.
8. In claim number WS901318 Bassetlaw National Health Service Trust was said to have been negligent in altering an x-ray report dated 20th August 1991, swapping the report for the right knee x-ray for that of the left knee and deleting part of the report. It was said that a report read out or referred to by a local general practitioner on 2nd December 1991 differed from that sent on 27th March 1992 to Mrs Barnes' then solicitor by her regular general practitioner, Dr Haldar. Mrs Barnes also complains that Bassetlaw negligently denied that there were four (rather than three) x-rays taken on 19th August 1991, and denied that further x-rays of her right knee had been taken on 19th July 1996. That was, I think, on the occasion when Mrs Barnes had suffered the further unfortunate accident at Grimsby and was treated first in hospital at Grimsby but then transferred for further treatment to Bassetlaw.
9. Mrs Barnes' strong belief is that she was being deceived over the x-rays and that led her to making an application for either discovery or pre-trial discovery. I had supposed it was an application for pre-trial discovery until it was explained to me that proceedings were afoot from December 1998. However, when Mrs Barnes sought to obtain a further order for pre-trial cross-examination, that was refused and that particular aspect of the matter ended in this Court before Mantell LJ on 6th April 2000.
10. In the meantime, Mrs Barnes had on 1st and 5th of November 1999 started the two sets of proceedings now current. She certainly had solicitors acting for her in WS 901336, that is Gosschalks of Hull, one of several firms who have acted for her over the years. I should add that a Legal Aid Certificate was first issued in September 1998. There was then a period when it was not current but it was restored, so that for a substantial part of the period that I am now dealing with there was a Legal Aid Certificate in force.
11. When the two sets of proceedings were commenced, Mrs Barnes or her solicitors did not comply with all the requirements of the Civil Procedure Rules and Protocols as to particulars of claim and medical report. Their position was no doubt that they could not do so as a result of not having attained appropriate medical advice. However, on 22nd February 2000 Mrs Barnes' solicitor applied for a six-month extension of time starting on 5th March 2000, the extension being for serving the claim form and the particulars of claim. A six-month extension was granted, that is until 5th September 2000. This was one of the points at which there seems to have been a muddle between the various proceedings, that is between WS 901318 and WS 802466.
12. At all events, shortly before the extension expired on 5th September 2000, Mrs Barnes (who was by then acting in person) applied for a further six-month extension. Her application stated that a report had been obtained from a consultant radiologist but she now needed further time for a report from a consultant orthopaedic surgeon.
13. There was a hearing before District Judge Hickinbottom on 25th August 2000 - that is about ten days before the time limit was to expire. The district judge refused both applications and struck out both claims. It is a matter of particular grievance to Mr and Mrs Barnes that by taking that course he curtailed the extension which had been granted by ten days. He took that view because it seemed to him that it was quite impossible that what had not been achieved during the preceding five and a half months could satisfactorily be achieved during the last ten days.
14. The district judge gave two separate judgments. He reviewed the history of the claims, some of which had come out only in the course of the hearing before him (as there were of course still no particulars of claim in either set of proceedings). In relation to the Bassetlaw NHS Trust claim the district judge referred to the claimant having had numerous sets of solicitors acting for her. He said:

"The general impression seems to be that the claimant is absolutely convinced in her own mind that there was fault on behalf of the defendant. It cannot possibly be that all of the solicitors who have been instructed in this case are incompetent. It cannot possibly be the case, I would have thought, that the instructions offered by the previous solicitors to the experts were lacking. Those solicitors knew the history of this matter, knew the seriousness with which the claimant took the case, knew that previous solicitors had been involved and their involvement had come to an end as a result, presumably, of dissatisfaction by the claimant...."

15. So the district judge came to the conclusion that he should strike out the Bassetlaw claim.
16. He came to the same conclusion in relation to the Suffolk Health Authority claim. He said towards the end of his judgment in that matter:

"A balance has to be struck. Yes, the claimant has to be given sufficient time in order sensibly to prepare a case. On the other hand, the defendants are not without some rights. The defendants have had this claim hanging over them for some considerable time. The claimant has had a substantial opportunity, it seems to me, to prepare a case if indeed a case exits. The order that was made in February might be viewed as a generous order. The period of time allowed was a matter of several months, notwithstanding the fact that this case was an old case even at that time."

17. Mrs Barnes wished to appeal and the matters were transferred to the Lincoln Trial Centre where they were heard just before last Christmas by His Honour Judge Jenkins. The judge gave a single reserved judgment on 19th March 2001. He dealt with both appeals and also an application under the Data Protection Act 1998, replacing (in this respect) the Access to Health Records Act 1991.
18. The judge went over the history again, concentrating in particular on what Mr Zerrati, a consultant at Bassetlaw, was said to have exclaimed in 1996 about Mr Dandy (that is "he's missed the bugger"). The judge very carefully examined the district judge's reasoning. He noted that Mrs Barnes was alleging wilful negligence against her own solicitors. He saw no grounds to interfere with the district judge's exercise of his discretion. He also stated that the application under the Data Protection Act 1998 was mistaken.
19. This would be a second-tier appeal. Under Section 55 of the Access to Justice Act 1999 such an appeal is, as a matter of mandatory statutory requirement, permissible only if it would raise an important point of principle or practice or for some other compelling reason.
20. I have gone through the matter in some detail because Mrs Barnes and her husband do, for reasons which I fully understand, have very strong feelings about it. But the proposed grounds of appeal do not, in my view, meet the stringent requirements for a second appeal, nor would an appeal have any reasonable prospect of success. I must therefore dismiss these applications.
(Applications for permission to appeal dismissed; copy of transcript to applicant at public expense)