On 10 September 2014 the Court of Appeal by a majority of 2 to 1 upheld appeal against an early decision by Judge Bowden in the District Court rejecting the applicant’s request for an extension of time in which to bring claim under Section 41 of the Limitation Act 2005.
As I have commented previously, such section on its face [bizarrely] only permits an extension of claim for a child, outside the six-year time limit now set, if the Court is satisfied that the child’s guardian acted unreasonably in failing to bring claim within this 6 year time period.
In other words, if there is a good reason why claim was not brought earlier, no extension can be given – go figure!
In Barr’s case, the guardian’s failure to bring claim within the 6 years was because their [negligent] solicitor had advised them it was not necessary to do so and there was plenty of time. They had expert medical evidence that the child’s care had been negligent, but were told there was no need to rush, as there remained plenty of time for the action to be brought. This was due to a failure to appreciate that since Nov 2005, birth injury cases (even those relating to births prior to such time) had a ‘new’ 6 year time limit, rather than the old period for claim, which had been generally 6 years from when the child reached 18.
Judge Bowden’s decision seemed to follow the terms of such provision, finding that because the guardian had relied upon legal advice, they had not acted unreasonably and so no extension could be granted [they being presumably left to pursue claim against their negligent lawyer for wrongly advising them concerning the timeframe for claim].
Though unquestionably the right end result, the Court of Appeal’s decision required some ‘reasoning gymnastics.’
Justice Pullin concluded that the inquiry as to whether a guardian had acted reasonably or not was an objective question. He concluded that the legal advice provided by the lawyer was not part of such objective circumstances that needed to be considered. Rather the objective circumstances were the fact that severe injury had occurred and medical opinion had been obtained suggesting that the obstetric care was negligent and had caused such injury. In these circumstances, Justice Pullin concluded that a reasonable guardian would have commenced proceedings and so the court’s discretion arose.
As Justice Murphy put it at  the circumstances upon which the decision whether a failure to initiate proceedings was unreasonable include “The nature and strength of the claim, the damages which were expected to be recoverable and any cost considerations which might reasonably bear upon a decision to sue in the particular circumstances of the case. Medical reports which had been obtained by the plaintiff’s actual guardian would be admissible as relevant to, but not necessarily determinative of, the question of whether, objectively, it was unreasonable for a guardian of the plaintiff not to commence proceedings within time.” He further stated at  “If, in the circumstances, it was unreasonable for a guardian responsible for the plaintiff’s welfare etc. and practicably capable of suing not to have sued within time, the minor is taken to have lost a valuable priority right in a situation where he or she was incapable of preserving the right for himself or herself. In that event the discretion to extend time may be exercised.”
Interestingly such reasoning does not directly deal with the availability of an extension in the more common scenario where no expert opinion has yet been obtained within the six years (for instance because the parents have been too busy caring for their disabled child to give litigation priority prior to this timeframe expiring, or it is only then they are informed of a poor long term outlook for their child and then consider litigation). I anticipate allegations in such scenario that the parent/guardian has acted unreasonably in not more promptly investigating a medical negligence claim before the six-year period expires. Bizarrely, it will be in the guardian’s best interest to accept that they have acted unreasonably in not investigating earlier.
It is important to appreciate the unusual circumstances in Barr. Expert opinion had already been obtained critical of the care provided and supportive of the fact that this had caused injury. Nonetheless, in my view the decision encourages a view that the scope of the extension provision is broader than perhaps previously envisaged and there is an arguable prospect for extensions to be granted, where no expert opinion has been sought by the guardian within time or, though this is more controversial, where initial advice may not have supported criticism.