B3/2000/3022
Neutral Citation Number: [2001] EWCA Civ 447
IN THE SUPREME COURT OF JUDICATURE                                 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (NOTTINGHAM DISTRICT REGISTRY)
(HIS HONOUR JUDGE BRUNNING)

							Royal Courts of Justice
							Strand
							London WC2A 2LL

							Wednesday 21 March 2001

B e f o r e:

LORD JUSTICE PETER GIBSON
LORD JUSTICE LATHAM

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JULIET HOOD
Claimant/Applicant

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NOTTINGHAM CITY HOSPITAL NHS TRUST
Defendant/Respondent

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040  Fax: 020 7831 8838
Official Shorthand Writers to the Court)
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MR C ANDERSON (Instructed by Messrs Sentley R Wilson & Co, Doncaster DN1 3HR) appeared on behalf of the Appellant

The Respondent did not attend and was not represented.

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J U D G M E N T
1.	LORD JUSTICE PETER GIBSON: The claimant, Juliet Hood, seeks permission to appeal from the order made by His Honour Judge Brunning in Nottingham County Court on 4 July 2000 striking out her claim. Earlier she had applied unsuccessfully to the judge for permission and her application to this court was refused on paper. Regrettably, there has been a delay in the hearing of this application but that was largely caused by difficulties in obtaining the transcript of the judge's judgment. The claimant's solicitors are in no way to blame. 
2.	The claimant was employed by the defendant, Nottingham City Hospital NHS Trust (“the Trust”), as a cardiologist. On 20 October 1993, while she was attempting to carry out a routine ECG examination on a patient, Robert Bennett, he grabbed hold of her causing injury to her back. Mr Bennett had a substantial history of psychiatric disorder. 
3.	The claimant has not worked since the mid-1990s. On 12 September 1994 the claimant's solicitors wrote a letter before action. On 18 March 1996 the Trust denied liability. On 7 May 1996 the claimant applied for, and on 14 June obtained, an order for pre‑action discovery. The writ was issued on 7 October 1996, only two weeks before the expiry of the limitation period, and served the next day. 
4.	The claimant alleged that the Trust had been negligent. On 5 November 1996 the statement of claim was served. On 2 January 1997 the defence was served and the request for further and better particulars of the statement of claim. Those particulars were not served for four months. Pleadings closed on 16 January 1997, but the summons for directions was not taken out by the claimant until 15 September 1997. 
5.	On 17 October 1997 an order for directions was made. It provided for a split trial and there were a number of consequential orders for discovery and service of evidence and witness statements. Discovery was completed by November 1997 but the order for mutual exchange of witness statements by 12 December 1997 was not complied with. That exchange did not occur until 24 July 1998. The order that the substance of experts' reports be disclosed within three months from the exchange of witness statements was also not obeyed. On 8 February 1999 the Trust offered to exchange experts' reports but the claimant did not proceed with that offer. 
6.	Nothing then happened until 11 February 2000 when the claimant applied for her claim to be allocated to the multi-track and for an order that the Civil Procedure Rules should apply. An order to that effect was made, but on 15 March 2000 the Trust applied under Part 3 for an order that the action be dismissed for want of prosecution.
7.	In witness statements evidence in support of that application was produced. It was said that the Trust would rely on the evidence of twelve witnesses at the trial, nine of whom were professionals. It was accepted that there were medical records, but it was asserted for the Trust that all the witnesses, to some extent, relied on their recollection and that their memories would inevitably be dimmed by the passage of time.
8.	In his judgment on the Trust's application, the judge directed himself as to the law in a way which has not been challenged. He referred to the overriding requirement to do justice between the parties and to the question whether a fair trial could take place. He said that prejudice was a factor to be taken into account, but there were other factors. He had to see whether there had been significant and extensive breach of earlier court orders. He also had to have regard to other litigants who wanted their cases dealt with expeditiously. The judge was satisfied that there had been very extensive delay and that the case ought to have been tried by mid-1998. He was also satisfied that there had been extensive and repeated breach of court orders and extensive and widespread disregard of the rules.
9.	The judge noted, but did not accept, the claimant's argument that the case was a simple one which could be dealt with without the detailed recollection of witnesses. He was satisfied that the chances of a fair trial diminished with the passing of time and that the period after mid-1998 when nothing was done added significantly to the prejudice. Finally, the judge considered whether the sanction of a strike out was appropriate. He considered the range of the powers of the court but held that it was appropriate to strike out the claim. 
10.	Mr Colin Anderson, for the claimant, boldly submits that, in assessing the facts and exercising his discretion, the judge reached a conclusion which was plainly wrong. He says that the judge failed to take into account, adequately or at all, a number of facts. One was the absence of significant delay between the issue of the writ and service of the Trust's lists of documents in November 1997. I cannot accept this because it overlooks the seven months' delay, contrary to RSC Order 25 rule 1(1), in taking out the summons for direction. When a claimant leaves it to the very end of the limitation period to issue proceedings he must thereafter proceed with the action expeditiously. If there is inexcusable delay by the claimant, the court may well not think it fair to the defendant that the action be allowed to proceed. 
11.	Mr Anderson rightly points to delay by the Trust's solicitors in not exchanging witness statements until July 1998, six months after the claimant was ready to do so, and then only after an application by the claimant to the court. He says that the judge omitted to take account of it. No attention was drawn to this fact in the claimant's evidence or the claimant's skeleton before the judge. Mr Anderson also says that the judge took no account of the fact that the Trust only offered to exchange experts' reports in February 1999. This fact was referred to in the witness statement of Mr Reed, the Trust's solicitor. The judge plainly thought it significant that the claimant was not ready then or thereafter to exchange experts' report. 
12.	Mr Anderson further submitted that the judge failed to take into account the admission by the Trust of the assault on the claimant and psychiatric history of Mr Bennett. He submitted that the issue was whether the patient's behaviour indicated that he was a potential danger to the staff and whether there should have been a clear system of warning to the staff of that danger. That, he argued, was an issue for expert evidence and delay was therefore less significant. 
13.	I am not able to agree that the judge has omitted to take into account any significant matter. He referred to all the material before him. In my judgment, he could properly regard the evidence of the factual witnesses as important to the question whether the Trust was negligent, even though medical records were available and statements were taken from the Trust's witnesses some three years ago. In my opinion, the judge was plainly right to say that part of the evidence as to the management of the patient and the steps which should have been taken had inevitably to be dealt with by oral recollection. Mr Anderson further submitted that the judge gave no reasons why, by reason of delay, the Trust was seriously prejudiced or there was a substantial risk that a fair trial would not be possible. 
14.	I do not agree. The judge referred to the greater difficulty that the witnesses would have in looking back to the management of the patient and the steps which ought to have been taken. There was evidence that witnesses' memories had dimmed. No doubt the witnesses would be cross‑examined as to the accuracy of their recollections. The judge was entitled to take the view that the considerable lapse of time would create problems for the Trust's witnesses. 
15.	Finally Mr Anderson submitted that the judge was wrong to impose so severe a sanction as striking out, but the judge was well aware of the range of possible orders which he might make. I do not see how it could he said that the judge erred in the exercise of his discretion.
16.	In my judgment, therefore, there is no real prospect of success on an appeal, nor is there any other compelling reason why the appeal should go ahead. I would therefore refuse this application.
17.	LORD JUSTICE LATHAM: I agree.
Order: Permission to appeal refused.
(Order does not form part of approved Judgment)