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Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB) (10 December 2020)


Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB) (10 December 2020)

This is an appeal against an Order...  By this Order, the Judge permitted the R to proceed with his clinical negligence claim against A, despite the expiry of the primary limitation period. The...  Order was made under section 33(1) of the Limitation Act 1980  following the trial of a preliminary issue as to limitation. [1]

The underlying claim arises out of gynaecomastia surgery which took place nearly 25 years ago, on 9 March 1996. [2]

The claim was issued on 20 July 2017. R complains that the surgery was of a poor standard and undertaken using an inappropriate technique. He says that in consequence he has suffered severe pain as well as chest wall distortion and significant scarring... [3]

J held that the primary limitation period had expired in March 1999 because R had the necessary knowledge for the purposes of section 14 of the LA 1980 almost immediately after the operation. [4]

J concluded that it was equitable on the facts before him to give R permission to pursue his negligence claim out of time, applying section 33 of the LA 1980. [5]

It is against this final conclusion that A appeals. In summary, it argues that although this was an exercise of discretion, J's decision was manifestly wrong. [6]

R responds that this is essentially an impermissible appeal against a discretionary evaluation, where no error of law in  J's approach has been identified. [7]

[original judgment considered: "I am not satisfied that there is significant real prejudice to D in terms of its ability to defend the claim, that the operation was carried out negligently, by the passage of time beyond the limitation period. The remaining considerations are of relatively minor importance compared to the question of prejudice to D... I will therefore give permission under Section 33 to Mr Azam to pursue his claim against D in relation to the operation on the basis that it was negligently carried out."] [35]

appeal is dismissed [87]
 

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