Henderson v Dorset Healthcare University Foundation NHS Trust [2016] EWHC 3032 (QB)

[2016] EWHC 3032 (QB)Case No HQ13X04241
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/11/2016
Before
MR JUSTICE WARBY
Between
Ecila HendersonClaimantDorset Healthcare University Foundation NHS TrustDefendant
Nicholas Bowen QC (instructed by Osborne Clarke LLP) for ClaimantMichael Mylonas QC (instructed by DAC Beachcroft LLP) for DefendantHearing Hearing date: 23 November 2016
Judgment Approved
[1]On 23 November 2016 I heard an application on behalf of the claimant for permission to amend her Particulars of Claim in this action, and a cross-application on behalf of the defendant for an order, if the claimant’s application was successful, adjourning a 3-day trial fixed to start on 5 December 2016. After hearing Leading Counsel at a hearing lasting some 3 ½ hours I dismissed the amendment application. I therefore made no order on the application to adjourn. These are my reasons.

The claim

[2]On 25 August 2010 the claimant killed her mother. She was charged with murder. She pleaded not guilty of murder, but guilty of manslaughter by reason of diminished responsibility. Those pleas were accepted. On 8 July 2011 the claimant was sentenced to a hospital order under s 37 of the Mental Health Act, with restrictions pursuant to s 41. The claimant remains in detention pursuant to the Mental Health Act.[3]Long before the manslaughter, the claimant had been diagnosed as suffering from paranoid schizophrenia. At the time, she was under the care of the Southbourne Community Mental Health Team, within the defendant NHS Trust. An inquiry later made findings critical of the defendant’s conduct. The core criticism was of a failure to act in a timely manner when alerted by a health worker, Ms Loyne, to a significant deterioration in the claimant’s condition. In this unusual personal injury claim the claimant seeks damages against the defendant for personal injury in the form of psychiatric harm, and for the consequences of killing her mother.[4]Proceedings were issued on 22 August 2013. The defendant admitted liability for negligence. Judgment on liability in negligence, with damages to be assessed, was entered by consent as long ago as 12 May 2014. By an order of 17 February 2016 Master Cook directed the trial of preliminary issues which had been proposed by the defendant. That trial is listed to take place over 3 days in the week commencing 5 December 2016. The preliminary issues concern the extent to which the claimant’s claims for damages are barred by the rule of law which prohibits a person from recovering damages for the consequences of their own illegality.

The applications

[5]It was on Monday 14 November 2016, seven working days before the start of the preliminary issue trial window, that the claimant’s solicitors filed her application. It seeks permission to amend by adding(1) claims under the Human Rights Act 1998 (“HRA”), alleging infringement of the claimant’s rights under Articles 3 and 8 of the Convention, and(2) a claim for an extension of time for bringing those claims, pursuant to s 7(5)(b) of the HRA. The defendant’s adjournment application was filed on Thursday17 November 2016.

Issues and conclusions

[6]The applications gave rise to six main issues. These, and my conclusions upon them, are as follows:- (1) Whether the proposed amendments set out adequately pleaded claims with a real prospect of success.[7]I could not rule out the possibility that arguable claims under Article 3 and/or 8 and for an extension of time under s 7(5)(b) could be properly pleaded in this case, but in my judgment this plainly had not been done. (2) If not, should the court dismiss the application or adjourn it to allow the claims to be better formulated?[8]I concluded that the proper course was to dismiss the application. I could not grant permission without a properly formulated draft statement of case; it would not be proper to allow a claimant to advance a loose, vague and ineffective pleading, especially in a human rights claim. I declined Mr Bowen’s invitation to give him more time to perfect the drafting. The claimant had had ample time and opportunity to do that. I also took into account the factors that weighed with me on the issue of discretion, as outlined at 11 below. (3) Whether the application was subject to the restrictions on amendments that add new claims after the expiry of a limitation period which are imposed by CPR 17.4; and (4) If so, whether the proposed human rights claims meet the threshold requirement for such an amendment, that they should “arise out of the same or substantially the same facts as are in issue on the existing claims”?[9]Given my conclusions on issues (1) and (2), these questions did not strictly arise. However, the new claims clearly did seek amendment after the expiry of a limitation period. I favoured the view that on the true construction of CPR 17.4, that rule did apply to this application, with the consequence that the court was prohibited from granting permission to amend unless the new claims arose from “the same or substantially the same facts as” were already in issue on the claimant’s claim. I concluded that the new claims did not arise from the same facts or substantially the same facts as were already in issue. The new claims would require significant additional factual investigation. (5) Whether the amendment if allowed would require an adjournment of the preliminary issue trial.[10]My conclusion was that the grant of permission would require an adjournment. It would be highly undesirable to allow the preliminary issue trial to go ahead separately from any determination of the human rights claims. (6) Discretion: if and in so far as the issue arose, should permission to amend be granted as a matter of discretion?[11]The need for an adjournment was a factor that clearly favoured the refusal of the application to amend. In those circumstances the onus was firmly on the claimant to demonstrate how and why it would be consistent with the overriding objective to allow the new claims to be advanced now. The claimant had failed to do that. I would have refused permission to amend as an exercise of discretion in any event.

The procedural history

[12]A proper understanding of the issues and my reasons requires that I set out some further detail of the procedural background. What follows is either undisputed or, where it is, represents my findings on the evidence before the court.[13]22 August 2013: the claim form was issued, without accompanying particulars of claim. The brief details of the claim explained that it was for “damage for personal injury, loss and damage … under both the common law and pursuant to sections 6-8 of the Human Rights Act 1998 (HRA) such damage suffered on 25th August 2010 and resulting from various acts and omissions which constituted both negligence and a breach of the defendants’ duties under section 6(1) HRA which constituted unjustified and unlawful violations of Articles 2, 3 and 9 of the European Convention …”[14]The primary limitation period for a claim under the HRA is “one year beginning with the date on which the act complained of took place”: s 7(5)(a). So the human rights claims were very nearly 2 years out of time already. The court has power to substitute “such longer period as the court … considers equitable having regard to all the circumstances”: HRA s 7(5)(b). No claim for such an extension was pleaded in the claim form. A claimant who needs an extension under s 7(5) must apply for one: O’Connor v Bar Standards Board [2016] EWCA Civ 775.[15]19 September 2013: the claim form was served.[16]28 January 2014: some 5 months after the issue of the claim form, a detailed letter of claim was sent. The letter, 23 pages long, set out in great detail the nature and basis of the claimant’s case in the common law tort of negligence. Having done that, the letter devoted one short paragraph to human rights. It then went on to detail over 2 ½ pages what were said to be the “consequences of the defendant’s negligence”. The paragraph about human rights said this:
“Human Rights Act 1998 For the avoidance of any doubt we confirm that the claimant does not concede that a claim under this heading will not be brought if liability is denied and it is necessary to serve Particulars of Claim, etc.”
The wording is clumsy but its sense is clear: the claimant might pursue the human rights claim which had been set out in the claim form, if liability for negligence was denied.[17]12 March 2014: in a letter of response to the formal letter of claim the defendant admitted liability for negligence, stating:
“Response to allegations of negligence and causation We are instructed to confirm that the issues of breach of duty and causation alleged against the Trust are not in dispute. For the avoidance of doubt, breach of duty and causation in your client’s negligence claim are admitted and the Trust will consent to the entry of Judgment for the claimant with damages to be assessed and/or approved … … It follows that we accept that your client is entitled to recover damages in connection with her claim in negligence against the Trust. We invite you to particularise your client’s losses …”
[18]12 May 2014: judgment on liability for damages to be assessed was entered by consent. The order was made in a form which had been prepared by the claimant’s solicitors, and sent to those acting for the defendant in early April. It was expressly agreed by the defendant’s solicitors. It made no reference to the cause or causes of action in respect of which judgment on liability was being entered. But the judgment plainly stemmed from the defendant’s express admission of liability in negligence. That was clearly the basis on which the claimant’s solicitors sought and obtained the defendant’s consent to the entry of judgment. Hence, when the issue was later debated the court ultimately declared that the liability established by the judgment was liability in negligence. The defendant had not admitted liability for any human rights claims. The letter of claim had indicated, by implication, that those claims would not be pursued if liability in negligence was admitted.[19]23 September 2014: the claimant served Particulars of Claim and a “Preliminary Schedule of Damages”. The Particulars set out the claimant’s factual case and asserted as follows:
“Breach of duty and causation “19 By reason of the matters set out above, the treatment of the Claimant was negligent. 20 The Claimant relies upon the admission of breach of duty, causation and the Claimant’s entitlement to recover damages made by the Defendant in a letter dated 12 March 2014 in respect of the Claimant’s negligence claim. In consequence of this admission the Court has entered judgment for the Claimant with damages to be assessed.”
[20]The allegations of resulting “injury and loss” which followed in paragraph 21 included this:
“The Claimant has suffered a loss of her liberty. She has been detained in hospital for a significantly longer period as a result of the stabbing of her mother than she would have been, had the incident not occurred. …”
[21]The Particulars and Schedule made no reference to the HRA, or the Convention, and sought no relief by way of just satisfaction, nor any extension of time under s 7(5)(b) of the HRA. The claimant’s Skeleton Argument for this hearing put it this way: “The claim pursuant to the HRA was not pleaded out” in these documents. That is not quite as clear as it might be. There is no question of any partial pleading of human rights claims, nor any inadvertent omission. The Particulars and Schedule were entirely consistent with what had gone before. The claimant had obtained an admission of liability and causation in negligence, and had decided not to pursue any human rights claims. I see no room for sensible dispute over that.[22]20 November 2014: the defendant served its Defence, which admitted paragraph 19 of the Particulars of Claim and “noted” paragraph 20, whilst pointing out (accurately) that the letter of response had reserved the defendant’s position as to the extent of any damages. The claimant was put to proof of the extent of her entitlement to damages. The claim for deprivation of liberty was denied “on the grounds of public policy”. This prompted a request for further information.[23]22 December 2014: the defendant provided further information. This said that reference in the claimant’s pleading to loss of liberty “suggests that the Claimant intends to bring a claim under the Human Rights Act 1998.” It went on:
“Section 7(5) of the Human Rights Act provides that a claim under the Act must be brought within one year. It is, therefore, denied that the Claimant’s proposed claim under the Act should be allowed. The claimant’s claim for deprivation of liberty is also denied on the grounds of public policy and the defendant relies on the authority of Clunis v Camden & Islington Health Authority (1997).”
[24]19 January 2015: the claimant’s solicitors belatedly acknowledged the further information and said this:
“We do though note that in your Reply you have indicated that it is suggested that the Claimant intends to bring a claim under the Human Rights Act 1998. This is not correct. As set out in the Schedule of Loss, the Claimant is bringing a claim for loss of liberty as a head of general damages of the clinical negligence claim that has been brought.”
[25]That seems clear enough, but Mr Bowen suggested in argument that it referred only to the prospect of an Article 5 claim. That narrow reading of that particular letter is a possible one. But it would not do justice to the overall position, which was that no human rights claims of any kind were being advanced or in view. The understanding of the parties at the time is underlined by the exchange that followed. On 28 January 2015 the defendant’s solicitors wrote:
“Thank you for your letter of 19 January 2015. We note your position with regard to there being no claim brought under the Human Rights Act 1998.”
The claimant’s solicitors never took them up on that summary of the position, which was in my judgment an accurate one in January 2015.[26]The reality was that in May 2014 the claimant had deliberately abandoned any human rights claims in the light of the admissions obtained. Mr Bowen is quite right to approach the present application on the footing that the existing Particulars of Claim do not advance human rights claims in any way, and that such claims can only now be pursued if amendment is allowed.[27]February 2016: the first stirrings of an attempt to revive the human rights claims, or some of them, occurred about a year after the exchange of correspondence just mentioned. At the CMC before Master Cook on 17 February 2016 the Master directed the preliminary issue trial that is now due to be heard on and after 5 December 2015. At that hearing the scope of the consent judgment was called into question. The question arose because it had been raised without prior warning in the Skeleton Argument for the claimant, served just before 8:30pm the night before the hearing. The first three pages of that document were devoted to an argument that the consent judgment covered human rights claims as well as negligence.[28]The claimant’s case is that this change of position by her (as I find it to be) was prompted and justified by a change of position by the defendant, which took the claimant’s side by surprise. I am not persuaded of that. The submission made by Mr Bowen to Master Cook on 17 February 2016 was that it was “now clear, for the first time, from the defendant’s skeleton argument that the preliminary issue/illegality defence does not go only to the deprivation of liberty claim but to other heads of loss as well” (emphasis added). I do not doubt that this was how Mr Bowen saw it then, but I do not believe he was right. Nor, I think, does he.[29]Before me, Mr Bowen relied on events in the Autumn of 2015. The CMC that came before Master Cook had originally been listed for 11 November 2015. Ahead of the CMC the parties exchanged proposed directions. By letter of 9 October 2015 the defendant’s solicitors told those acting for the claimant that they intended to apply for an order for preliminary issues. They enclosed a list, in the form that was later ordered. Mr Bowen submitted that it was at this point that it became apparent for the first time that the defendant intended to run an illegality defence of wide scope, on the damages assessment. I think Mr Bowen is wrong about this too, for several reasons.[30]First, I note that there is no record of any objection, expression of surprise, or concern on the claimant’s side in response to the letter of 9 October 2015. Nothing at all was said. The reason may be that there was a regulatory intervention in the claimant’s solicitors’ practice. That led to a change of solicitor and disrupted things, and may well explain why Mr Bowen was not fully up to speed in February 2016. But I am not sure it adequately explains the complete silence in response to the proposal for preliminary issues. It seems that the claimant’s solicitors were alive to the defendant’s true position many months earlier.[31]On 24 March 2015 the court directed the parties to clarify the issues with a view to agreeing directions. On 14 April 2015 the claimant’s solicitors wrote to the defendants’ solicitors accordingly. They said this (emphasis added):
“The main issue on which our client’s claim for substantial damages turns is whether or not the court will be satisfied that she can establish that she bore no significant responsibility for the death of her Mother. We rely upon the very clear sentencing remarks of Mr Justice Foskett … Our position is that public policy cannot possibly bar the pleaded heads of damage (which reflect the consequences of her crime) in circumstances where the judge made it absolutely plain that there was no penal element and that she required treatment. … We have considered whether a preliminary issue can be framed so as to dispose one way or the other, of the claim but feel that any such course will in the words of Lord Diplock be a ‘treacherous short cut.’ … A preliminary issue is only sensible if it is capable of either (1) resolving the whole proceedings or a significant element of the proceedings; or (2) significantly reducing the scope, and therefore the costs, of the main trial; or (3) significantly improving the possibility of a settlement of the whole proceedings. We do not think this can be achieved in this case, particularly taking into account the risk of one or both parties appealing any first instance judgment given the uncertainty of the law in this area.”
[32]As Mr Bowen confirmed, the words “no significant responsibility” refer to the threshold test for the application of the public policy relied on by the defendants. The letter refers to the issue of whether public policy bars “heads of damage”, plural. This letter seems to make quite clear that the claimant’s solicitors were aware by April 2015 at the latest that the defendant intended to rely on “illegality” as an answer to the bulk of the damages claim. That is what one would expect. It would be odd to raise public policy only in respect of the detention claim. But quite when the point became clear it is not necessary to decide. It is enough to say that Mr Bowen’s late skeleton argument of 16 February 2016 represented a significant change of position on the part of the claimant which was not justified by any recent conduct of the defendant.[33]At the hearing before Master Cook on 17 February 2016 the defendant’s position was, correctly, that the judgment was limited to negligence. But Counsel for the claimant stood by his written Argument. After a short argument, the Master was persuaded that the judgment covered all the causes of action mentioned in the claim form, and he so declared.[34]5 May 2016: at a hearing before Master Cook the defendant took up the matter of the true interpretation and effect of the consent judgment. After further argument, the Master varied his earlier declaration so as to record that the consent judgment covered only the common law claim. There has been no appeal on that issue, so that is how the record stands today. Not only that, but for the reasons I have given, I am quite sure that is correct.[35]After the Master had announced his conclusion, the following exchange took place:
“MR BOWEN: The other point, Master, is that now that my HRA claim survives, so I am going to have to apply to amend – MASTER COOK: This is a matter for you. MR BOWEN: -- so the preliminary issue may well end up having to include some aspect of the HRA claim. MR DE BONO: That is case management – MASTER COOK: That at the moment is a case management decision. This is why I started at that point because it seems that that is the storm in a teacup about all this. You know, either there is a judgment there or it survives. MR DE BONO: If you are going to make that application, it would be sensible to make it quickly. MR BOWEN: I agree with that completely. MASTER COOK: Yes. MR BOWEN: That is something we can agree about. It may or may not happen, but …”
It did not happen soon. It did not happen until six months later, on 14 November 2016. That is despite the understandable pressing of the defendant’s solicitors. They wrote the day after the hearing before Master Cook asking the claimant’s solicitors to “confirm as soon as possible and in any event within the next 14 days” whether an application would be made to amend to plead HRA claims. There was no reply. In a further letter of 26 July 2016 the solicitors recorded that the defendant had “continued to proceed on the basis that the HRA claim is not being pursued”. The claimant’s solicitors did not demur or quibble, or say anything in response.

MR DE BONO: That is case management –

[36]This procedural history means, of course, that as things stood before the claimant’s present application any assessment of damages, and more pertinently any preliminary trial on issues of illegality, would be one involving the application of established principles to the common law claims alone. The trial would not and could not address any claim under the HRA. It does not necessarily follow that the HRA would have no impact on the matters to be considered at the prelim issue trial, because s 6 of the HRA requires the court to ensure, so far as it can, that the law is interpreted and applied in a way that is not incompatible with Convention Rights. However, the claimant could not advance human rights claims without an amendment of the Particulars of Claim.[37]It seems that at some time, presumably after the hearing in May 2016, the claimant’s team decided that it would be preferable to leave over any question of adding human rights claims until after the preliminary issue trial. A plan had been developed, that an application to amend would or might be made if that seemed appropriate in the light of the findings made at that trial.[38]The application for permission to amend was only issued due to a direction of Nicol J. He heard the Pre-Trial Review in this case on 11 November 2016. No application for permission to amend was made before that hearing. But in the concluding paragraph of his Skeleton Argument for that hearing Mr Bowen raised, for the first time since May, the prospect of an amendment application. He said:
“It is also the C’s intention to amend the particulars of claim to fullyplead out the human rights claim now that the Court has varied its declaration so as to make it clear that the consent judgment does not cover the human rights claim.”
The emphasis is mine. It draws attention to two obvious points: (a) the human rights claim was not imperfectly “pleaded out”, it was not pleaded; (b) the declaration had been varied over 6 months earlier. The suggestion for the claimant was that “it would be sensible to have the amended particulars of claim in place before the preliminary issue hearing”. A direction was sought for the claimant “to file and serve an amended particulars of claim by 4pm on 25 November 2016.” No mention was made of permission, or the service of an amended defence.[39]Counsel for the defendant says that his side were taken by surprise. I am sure that is right. It is probably something of an understatement. Surprise and more was clearly justified. This all prompted case management directions which led to the issue of the applications that came before me just under two weeks later. Nicol J observed that it might be a good reason for refusing any application to amend that if permission to amend was given this would mean the trial of the preliminary issue would have to be adjourned or vacated.

The proposed amendments

[40]If one merely counts the words, the proposed amendments are modest. There are three aspects to them.(1) First, there would be an addition to the paragraph which asserts a duty of care and the reasonable foreseeability of loss. The amendment would add that it was reasonably foreseeable that breach of duty would cause “violations of [the claimant’s] rights under articles 3 and 8 … and so amounts to a breach of section 6(1)” of the HRA.(2) Secondly, paragraph 19 (above) would be added to so as to read as follows:
“Breach of duty/violation of Articles 3 and 8 and causation By reason of the matters set out above, the treatment of the claimant and the failure to assess her in the community following her release and recall her to psychiatric hospital within 36 hours of Ms Loynes call pleaded at paragraph 8 was negligent and violated her convention rights pursuant to Article 3 and 8 and amounted to a breach of section 6(1) of the Human Rights Act.”
Paragraph 20 of the statement of case would remain unamended. It would therefore continue to rely upon “the admission of breach of duty, causation and the Claimant’s entitlement to recover damages …” That of course relates only to the negligence claim. (3) The third proposed amendment is to add two paragraphs to the prayer for relief:
“(iii) An extension of time to pursuant to section 7(5)(b) HRA 1998; (iv) Damages/declaration/just satisfaction pursuant to section 8(3) HRA 1998.”
[41]The typographical errors are in the original, and may well reflect haste in the drafting which appears to have been done over the weekend of 12-13 November.

The first issue: have tenable claims been formulated?

[42]Certain threshold requirements must be met by any amendment. First, the proposed claim must be adequately pleaded, in accordance with the rules and principles of pleading. Secondly, it must have some real prospect of success: see Civil Procedure 2016 n 17.3.6. Permission will be refused for a draft pleading which falls short of these requirements. Specific provision as to the pleading of human rights claims is made by the Part 16 Practice Direction. It provides, so far as relevant: “Human rights 15.1 A party who seeks to rely on any provision of or right arising under the Human Rights Act 1998 or seeks a remedy available under that Act –(1) must state that fact in his statement of case; and(2) must in his statement of case – (a) give precise details of the Convention right which it is alleged has been infringed and details of the alleged infringement; (b) specify the relief sought; … “ (a) give precise details of the Convention right which it is alleged has been infringed and details of the alleged infringement;[43]The draft identifies two of the three Convention rights originally relied on, but in my judgment it fails adequately to specify the alleged infringements. It recites factual allegations, and alleges that these involve the breach of a duty of care, and “violation” of Article 3 and/or Article 8. But there is no detail or explanation given of how the defendant’s conduct is said to involve such violations. The ill-treatment prohibited by Article 3 is “torture or to inhuman or degrading treatment or punishment.” The claimant’s case must be that what was and was not done to her involved “inhuman or degrading treatment”, but the reader is not told in what respects that is said to be so. This does not qualify as a “fully pleaded out” case of human rights violation, in my view.[44]The defendant did not take any positive measures with an adverse impact on the claimant. The claimant’s case is wholly based on failure to act, or failure to act in time. Although it is clear that omissions as well as acts can involve violations of Article 3, the jurisprudence shows that ill-treatment must attain a certain minimum level of severity to fall within the scope of Article 3. It is clear on the admitted facts that the defendant showed a lack of urgency in dealing with an emergency situation, but some steps were taken. It is very far from clear what it is about the defendant’s failings that is said to meet the threshold standard of ill-treatment. Nor is it clear quite what is to be alleged about the impact on the claimant that engages Article 3. Mr Bowen has sought to make good these deficiencies by explaining the intended case in oral argument by reference to authority. This elucidated the proposed case to some extent but it was largely done by reference to generalities. It could not be regarded as any substitute for an adequately pleaded case. Mr Bowen managed to persuade me that the claim might be tenable. But I was left with the strong feeling that if the case was “fully pleaded out” it might upon analysis prove to be unarguable. The authorities cited lend no support to the view that a failure to afford adequate mental health treatment to an individual at liberty in the community is capable of amounting to a violation of Article 3. If that is possible, as it may be, it would surely depend on the precise circumstances of the case.[45]The position is rather worse when it comes to the case that the defendant’s omissions involved a violation of the right to respect for private and family life under Article 8. It is far from obvious what aspect of Article 8 is relied on. There is no explanation at all in the draft pleading. Counsel for the defendant described the case as pleaded as “unfathomable”, which is harsh but not unfair. Mr Bowen explained that reliance was placed on the protection afforded by Article 8 to physical integrity. But again, the case was put in general terms by reference to authority, and oral argument is no substitute for a pleading. I accept the defendant’s submission that the Article 8 claim is insufficiently particularised to enable the Court to find that it has any prospect of success.[46]Sometimes the court will, in its discretion, respond leniently to a failure to plead adequately by adjourning the application, or dismissing it without prejudice to a further attempt. But the later the amendment the greater the importance of clarity and precision at the first attempt; and it is relevant to consider the history of the application. These propositions are obvious, but also supported by authority: see, for instance, Brown v Innovatorone plc [2011] EWHC 3221 (Comm) (Hamblen J). To these principles is to be added, in human rights cases, the requirement of promptness in PD16:
“15.2 A party who seeks to amend his statement of case to include the matters referred to in paragraph 15.1 must, unless the court orders otherwise, do so as soon as possible.”
[47]Nobody could say that this application has been made “as soon as possible.” The claims are five years out of time. Even on the claimant’s best case, her lawyers knew of the defendant’s position on the illegality issue as long ago as October 2015, more than a year before the application was made. In my judgment they knew at the very least 6 months before that. Mr Bowen makes the point that the Practice Direction is only guidance. It is more than that, as its title shows, but I accept that it is not entirely inflexible. The history here does not, however, justify the grant of any indulgence. There is in truth no satisfactory explanation for the lateness of the application.[48]In this context it is of some significance that the draft amended pleading pleads nothing at all to justify the extension of time on equitable grounds which is sought. That is relief claimed in the prayer, but without any supporting facts. The claimant must in my judgment stand or - as she does - fall by the draft amendment that has been rather reluctantly, and hastily, put forward on this belated application. Other factors that are relevant to this decision are set out below, where I deal with discretion. Prominent among them are delay, prejudice, and the importance of allotting an appropriate share of the court’s resources to each case, taking into account the need to allot resources to other cases.

The third issue: does the application fall within CPR 17.4?

[49]CPR 17.4 restricts the court’s power to grant permission to make amendments which add a “new claim” after the expiry of a limitation period. The court may grant permission to make such an amendment if, but only if, (to quote r 17.4(2)) “the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.” It is accepted on the claimant’s behalf that the human rights claims would be “new claims” as defined by the rule. It is not disputed that the primary limitation period under HRA s 7(5)(a) expired more than five years before the present application was issued. Mr Bowen does not invite the court to address on this application the as-yet-unpleaded claim for an extension of time. But he submits that the restrictions imposed by CPR 17.4 do not apply to his application.[50]The argument turns on the interpretation of the following wording of CPR 17.4(1)(b). Set in its context, that sub-rule provides:
“17.4 (1) This rule applies where – (a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and (b) a period of limitation has expired under – (i) the Limitation Act 1980 1; (ii) the Foreign Limitation Periods Act 1984 2; or (iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.” (a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and (b) a period of limitation has expired under – (i) the Limitation Act 1980 1; (ii) the Foreign Limitation Periods Act 1984 2; or (iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.”
[51]The limitation period under consideration here is not one under the Acts of 1980 or 1984. The argument runs that the HRA is not an “enactment which allows such an amendment, or under which such an amendment is allowed”, within r 17.4(1)(b)(iii). This submission would appear to run counter to the Court of Appeal decision in Parsons v George [2004] EWCA Civ 912, which held that a fairly wide view should be taken of sub-rule (iii). But Mr Bowen refers to Eco Energy v First Secretary of State [2004] EWCA Civ 1566 and San Vicente v Secretary of State for Communities and Local Government [2013] EWCA Civ 817, [2014] 1 WLR 966, in which the Court of Appeal held that the six-week time limit provided for in s 288(3) of the Town and Country Planning Act 1990 for applying to quash a planning inspector’s decision was not a “period of limitation” within CPR 17.4. Mr Bowen suggests that these cases cast doubt on the approach adopted in Parsons v George.[52]I note that in neither Eco Energy nor San Vicente did the court dissent from the approach of Dyson LJ in Parsons v George. For my part, I am attracted by Mr Mylonas’ submission that these cases are to be distinguished on the basis that the provisions in question were silent on the question of whether the time limit provided for could be extended, and hence did not “allow such an amendment.” But this is an issue of some potential general importance. In view of my other conclusions it is not necessary to reach a conclusion, and my decision does not rest on that point.[53]If it were necessary to decide the point, my answer to this question would be no.[54]In Goode v Martin [2002] 1 WLR 1840 the Court of Appeal held that the principle of construction in s 3(1) of the Human Rights Act means that the words of CPR 17.4(2) which I have cited above should be interpreted and applied as if they read as follows:
"… only if the new claim arises out of the same facts or substantially the same facts as are already in issue on a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings." (Emphasis added.)
”[55]The approach to be taken in determining whether a new claim meets this test is well-established. The approach is sufficiently summarised by Hobhouse LJ in Lloyd's Bank plc v. Rogers [1997] TLR 154: “The policy … was that, if factual issues were in any event going to be litigated between the parties, the parties should be able to rely upon any cause of action which substantially arises from those facts.” (These words referred to s 35 of the Limitation Act 1980, but in my view they are equally applicable to CPR 17.4). The assessment of whether one factual basis is the same or substantially the same as another involves a value judgment, having regard to this overall policy: see Ballinger v Mercer Ltd [2014] EWCA Civ 996, [2014] 1 WLR 3597. This must be to some extent a matter of impression.[56]Adopting that approach, the first observation to make is the obvious one: the claim in negligence is admitted; the proposed human rights claims are and would be contested. Of course, the basis for the challenge to the human rights claims could be no more than a matter of legal analysis. But that is not the way the defendant puts its case. Secondly, if the new claims are the same as the existing it is hard to understand the need for the additional wording inserted into paragraph 19. Mr Bowen strove without success to persuade me that this did no more than reflect facts asserted in the letter of claim and admitted in the letter of response, and hence was unnecessary. The Particulars of Claim as they stand represent the pleader’s distillation of the factual matters considered necessary to set out in formal terms the case in negligence. It remains the fact that when framing what is on its face an exiguous amendment Mr Bowen thought it necessary to go further in order to state a case of violation of the claimant’s human rights.[57]Turning to more substantive points, I would accept the submission for the defendant, that the new claims would inevitably involve consideration of important new facts. The alleged failure to assess the claimant in the community following her relapse, and failure to recall her within 36 hours of the 23 August call by Ms Loyne give rise to significantly different factual issues from those which would have arisen in the negligence claim. In particular, the question of whether the alleged ill-treatment attained the minimum level of severity required to engage Article 3 would call for consideration of a range of circumstances, including the duration of the treatment, and the mental and physical effects to which the claimant was thereby exposed. The Article 8 claim, as explained by Mr Bowen, represents a fall-back case, in case the treatment was not severe enough to engage Article 3. So the same points apply.

The fifth issue: would it be necessary to adjourn or vacate the trial?

[58]In my judgment it is clear that the answer is yes. It is only now that the claimant is arguing for the preliminary issues to proceed, even if the human rights claims are added to the case. Hitherto, her position has been that if human rights claims were live there should be no preliminary issues or they should be modified to accommodate the human rights claims. The previous position was by far the more realistic.[59]It is clear that the HRA claims cannot be ready for trial simultaneously with the preliminary issues that have already been ordered. The prospect of allowing the illegality issues to be tried before any human rights claims, with a strong chance that one or both parties would seek and be permitted to appeal, looks unattractive in the extreme. If the human rights claims have a useful role to play at all, it is one that is different from but interwoven with the negligence claims and the defences to the damages claims in negligence. To “park” the HRA claims whilst the other issues were litigated out at first instance and, very likely, on appeal, would result in any trial of those claims taking place more many years after the relevant events. Of course, there might be no such trial. But at this stage it cannot be ruled out. The claimant’s apparent strategy, of putting the HRA claims in the freezer, is clearly at odds with the overriding objective. The alternative approach advocated by the defendant would be clearly preferable. That approach would be to try the question of liability for the human rights claims at the same time as the preliminary issues. This would ensure that the factual issues relevant to the HRA claims were tried sooner rather than later. Other alternatives might suit.

The sixth issue: discretion

[60]It is no longer the case, as it was at one stage in the history of procedural law, that the court will grant amendments provided the opposite party can be compensated in costs. The court no longer approaches the exercise of this discretion on the basis that the court’s task is merely to adjudicate between the rival parties, without regard to other considerations. The overriding objective requires a host of additional considerations to be brought into play. Moreover, when considering fairness between the parties the court takes a more searching look than it once did at the prejudice that a party will suffer, and whether that can truly be compensated in costs.[61]In this case, the need for an adjournment is in my view conclusive on the issue of discretion. There has been unreasonable delay. On the claimant’s best case more than a year has passed since the event that triggers the need for the application. Some of that might be justified by the intervention in the claimant’s solicitors’ practice. But not more than say 3 months. The application is made when the preliminary issue trial is imminent. An adjournment would inevitably lead to prejudice in the form of a waste of time and costs devoted to preparation. To some extent that could in principle be compensated by money. But the claimant is publicly funded. It is uncertain whether the wasted costs could be recouped. Even if they could, the broader considerations that are relevant would point firmly to the refusal of permission as matter of discretion.[62]The modern approach dates back at least to Worldwide Corp v GPT (CA, unreported 2 December 1998). Although the case pre-dated the CPR, it “nevertheless reflects the tenor of the CPR” (Civil Procedure n 17.3.7) and was cited with approval in Swain-Mason v Mills & Reeve LLP [2011] EWCA Civ 14, [2011] 1 WLR 2735. Waller LJ said this:
“Where a party has had many months to consider how he wants to put his case and where it is not by virtue of some new factor … why, one asks rhetorically, should he be entitled to cause the trial to be delayed so far as his opponent is concerned and why should he be entitled to cause inconvenience to other litigants.”
[63]Accordingly if, contrary to my conclusions, the draft amendment disclosed a properly pleaded case with a real prospect of success, the question would arise of why the new claims ought to be allowed to proceed, and delay the trial. Mr Bowen submitted that it was unfair to blame his client for the timing of the application. He argued that it would be wrong to treat a “one-liner” in a letter as “some implied representation by silence”. But the issue is not one of estoppel, and this is to turn matters on their head. The parties have a duty to co-operate to achieve the overriding objective. A party which has floated the idea that it may seek to amend its pleadings is duty bound to make a decision and get on with it. The onus is all the greater when the party has said, through their lawyers, that this is exactly what is proposed.[64]In the light of the exchange I have quoted at [39] above, and against the background I have outlined, it is very surprising to find the claimant suggesting that the onus lay on the defendant to take the initiative over whether human rights claims were or were not to be advanced. It is also hard to reconcile the exchange at the 5 May hearing with the position now adopted on the claimant’s side, that the human rights claims would and should have no bearing on the preliminary issues. Mr Bowen had, understandably, suggested the opposite. The onus of demonstrating why the grant of permission would be fair to all concerned lies on the applicant: see Worldwide.[65]Mr Bowen emphasises that the amendments are not put forward for some arid technical reason, to obtain a bare declaration of infringement. They are intended, he submits, to result in real and effective remedies. At the end of the argument I remain unclear, however, quite how it is suggested that might happen.[66]The explanation given by the claimant’s solicitor for the delay in putting forward the claim is that there was thought to be “no point pleading the HRA claim as it was thought that any sum awarded under the HRA would merely duplicate any award at common law.” It is common ground before me that, subject to a contrary decision by the Supreme Court, illegality is no answer to a human rights claim. The Court of Appeal so held in Al Hassan Daniel v Revenue & Customs [2010] EWCA Civ 1443. I deduced that the claimant’s team regarded the HRA claims as a fall-back, in case they lose the illegality arguments. But when I asked for an explanation of how the claimant’s team thought those claims would affect the outcome in that event I got no satisfactory answer. It has conspicuously not been said that the HRA claims represent, if successful, a simple means of circumventing the illegality points raised in answer to the quantum claims in negligence.[67]Assuming, again, that I am wrong about that, the potential benefit of the new claims still should not be given more than its proper weight. I have expressed some views on their apparent merits. I cannot attribute any great importance to the impact they might have on the illegality/public policy points that are taken by the defendant. I view any potential benefits to the claimant as highly uncertain. Moreover, the potential value to the claimant of the amendments, whatever it is, must be assessed in the overall context of this litigation, its past and its future conduct, and the overriding objective. The potential benefits are considerably outweighed by other competing considerations. These considerations would lead me to refuse permission even if the grant of permission would not require an adjournment.[68]This is a claim which was not brought until the very end of the limitation period for negligence. That initial delay meant that the human rights claims were already well out of time at the outset. Mr Bowen may be right to say that this initial delay was excusable, given the criminal trial and the administrative investigation. Mr Mylonas did not argue strongly to the contrary. But having delayed to that extent it was the claimant’s responsibility to proceed expeditiously from then on. So far as the common law claim is concerned, no blame can be attached to her. But her approach to the human rights claims has been unreasonable.[69]These claims never played more than a secondary role, and were deliberately abandoned when liability at common law was conceded. I do not accept Mr Bowen’s invitation to conclude that the admission of liability was an oversight by the defendant, forgetting or not spotting the potential for illegality arguments. The realisation that it might be desirable to revive the human rights claim came to the claimant’s legal team belatedly. Once it came it was not acted on with reasonable promptness. There is no good reason why the claims should not have been brought much earlier.[70]In the event, the new claims were put forward six years after the event; five years out of time; unconscionably late in the proceedings; at a time when a trial was imminent; and when the defendant, to the knowledge of the claimant’s advisers, had been proceeding for many months on the basis that no human rights claims were being pursued. Even if no adjournment was required, the introduction of new claims at a late stage, in respect of which liability was denied, would be prejudicial in at least two ways. One is that it would throw the case out of kilter. The preliminary issues would no longer be decisive. There would remain the lurking possibility that the human rights claims could come back in, to snatch some form of victory even if illegality was held to defeat the bulk of the common law claims. Secondly, the defendant would have to address evidential issues relating to the human rights claims for the first time more than six years after the event. Asssessment of precisely how that would prejudice the defendant is difficult, but I am confident there would be genuine prejudice. Fairness, and the need to ensure proportionality and efficiency, all favoured the refusal of permission.[71]The factors I have considered in reaching these conclusions overlap, no doubt, with those that would fall for consideration if the court was considering an application under s 7(5)(b). But nobody has suggested that this is any reason for not addressing the issue of discretion, or for addressing it differently.

Cited in 2 later judgments