Smith (David) v Surrey Hampshire Borders NHS Trust 17/01/2005
The nature of Mr Smith's claim against them concerns a period of time between April 1994 and November or thereabouts 1995 when he was intermittently a patient at one of the Brookwood hospitals. At times he was there on an informal voluntary basis; at other times he was detained under the Mental Health Act 1983; at yet other times, that is to say between April 1994 and November 1995, he was not there at all.
He brought this claim for false imprisonment and there has been some uncertainty as to whether this is only a claim for false imprisonment or whether it is also a claim for negligence or breach of duty giving rise to a claim for damages for personal injury.
Neutral Citation Number: [2005] EWCA Civ 30
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE WILKIE)
Royal Courts of Justice
Strand
London, WC2
Monday, 17th January 2005
B E F O R E:
LORD JUSTICE MAY
DAVID SMITH
Claimant/Applicant
-v-
SURREY HAMPSHIRE BORDERS NHS TRUST
Defendants/Respondents
The APPLICANT appeared in person
J U D G M E N T
(As approved by the Court)
Crown copyright©
1. LORD JUSTICE MAY: This is Mr David Smith's application for permission to appeal against a judgment and order of His Honour Judge Wilkie QC (as he then was, now Wilkie J) given on 13th August 2004. It was in substance an application on behalf of the defendants, the Surrey Hampshire Borders NHS Trust, to strike out Mr Smith's claim against them on the ground that it was barred by limitation. It was the limitation issue which Judge Wilkie decided against Mr Smith and in favour of the respondents.
2. The nature of Mr Smith's claim against them concerns a period of time between April 1994 and November or thereabouts 1995 when he was intermittently a patient at one of the Brookwood hospitals. At times he was there on an informal voluntary basis; at other times he was detained under the Mental Health Act 1983; at yet other times, that is to say between April 1994 and November 1995, he was not there at all.
3. He brought this claim for false imprisonment and there has been some uncertainty as to whether this is only a claim for false imprisonment or whether it is also a claim for negligence or breach of duty giving rise to a claim for damages for personal injury. The central relevance of that is, of course, that the limitation provisions are different for each of those two claims. For a false imprisonment claim, the statutory period of limitation is six years; for a claim for personal injury, the statutory period of limitation is three years, but there is also the possibility of claiming a discretionary court order under section 33 of the Limitation Act to disapply the three year limitation period.
4. Mr Smith's particulars of claim sought to rely on section 32 of the Limitation Act. In particular he sought to say that his right of action had been deliberately concealed from him by the defendants under section 32(1)(b) of the 1980 Act.
5. Mr Smith, according to the judge, made it clear to him that his claim was and was only a claim for false imprisonment. I have asked him today where he stands on that. His very fair answer is that he is not at all sure what the strict legal position is. In the end, I do not think it is necessary to reach a final conclusion on this topic because the judge decided the limitation questions both by reference to a claim for false imprisonment and, if necessary, by reference to a personal injury claim. The judge decided that the defendants had not deliberately concealed Mr Smith's right of action and that, so far as this was a claim for false imprisonment, it was statute barred. He also decided that, if it was a personal injury claim, he was not persuaded to exclude the time limit for those claims under section 33 of the 1980 Act. It is against those decisions that Mr Smith seeks permission to appeal. He needs a very small extension of time and I do not think that need trouble me at all.
6. The facts can be summarised from the judge's judgment in the main as follows. The relevant story starts on about 28th or 29th April 1994, when Mr Smith was detained under section 2 of the Mental Health Act. On 3rd May he appealed against the decision to the managers. On 9th May the managers upheld the decision. He then appealed to the Mental Health Review Tribunal, who, on 17th May 1994, decided that he should not be discharged.
7. What Mr Smith says in his particulars of claim in relation to that detention was that the decision was made under a misdiagnosis of Asperger's Syndrome before any form of examination had taken place by any psychiatrist. He suggests that there was a lack of reasonable care in the various steps leading to this misdiagnosis. Misdiagnosis is not the only basis upon which Mr Smith complains of false imprisonment against the defendants, but it is a theme that runs through his particulars of claim. Later on in the same document he refers to the reckless reinstatement of the earlier misdiagnosis and the resulting disastrous issue of inappropriate drugs.
8. Taking the history on, on 26th May 1994 the social worker in the case, a Mr Carmody, made an application under section 3 of the Act for Mr Smith's admission for treatment. On 18th July he was released from detention but remained as an informal patient. On 2nd October 1994 he was further detained under section 5(2) of the Act. On 4th October Mr Carmody again applied for his admission for treatment under section 3. On 5th October Mr Smith appealed to the managers against his detention. On 23rd October the managers decided that he should not be discharged. The reasons given were that he was not seeking discharge but to have the diagnosis changed. That was considered to be a medical matter and not an issue for the manager. On 23rd January 1995 he was released from detention, but again remained as a voluntary patient. On 1st August he was detained under section 5(2) of the Act. On 4th August Ms Dracup, a different social worker, applied for his detention under section 3 of the Act. On 8th September 1995 the managers upheld an appeal and indicated that they were satisfied that it was no longer necessary for Mr Smith to be detained. From that date he remained as a patient on an informal basis. On 28th October 1995 there was a section 5(2) detention. On 30th October 1995 a further application for admission for assessment was made. On 1st November 1995 Mr Smith appealed to the managers. On 6th November the managers refused the appeal. On 14th November 1995 he was discharged from compulsory detention and since then has not been an inpatient. He started his claim on 3rd March 2003, which is well outside any primary statutory limitation period.
9. I have described in brief detail the basis of the claim, but in the round Mr Smith's case is that for some or all of the periods of detention between April 1994 and November 1995 he was wrongly, unlawfully and falsely detained and therefore falsely imprisoned.
10. The defendants filed a defence in August 2003. On 10th September they applied for a hearing to resolve the limitation issue. This was granted and it was this which Judge Wilkie was hearing at the end of July 2004. The hearing was between 27th and 28th July 2004. There was oral evidence, including Mr Smith's own oral evidence. As I have said, judgment was handed down in writing on 13th August 2004.
11. The judge noted that Mr Smith was insisting that his claim was a claim for false imprisonment and that it arose from a series of detentions under the Mental Health Act. It was not in dispute but that the relevant time period, whatever it was, started to run no later than 14th November 1995 when Mr Smith ceased to be a patient, and that it expired, if there were a six year limitation period, on 14th November 2001. Mr Smith's claim was, as I have said, issued on 3rd March 2003 and accordingly he was on any view, on the face of it, out of time.
12. The judge held, with reference to section 32, where it will be recalled the court is concerned with the question whether Mr Smith's right of action had been deliberately concealed from him by the defendants, that there was a clear distinction between facts giving rise to the cause of action and evidence relating to or going to establish that cause of action. One of the cases that the judge referred to was Johnson v Chief Constable of Surrey , a decision of this court of 9th October 1992. The judge quoted from the judgment of Russell LJ and also from the judgment of Rose LJ. Part of the quotation from the judgment of Rose LJ was this:
"I accept Mr Glasgow's submission that, in construing the section, there is no middle ground between facts and evidence. It may be that the plaintiff's case following the quashing of the convictions would be evidentially stronger and have a better prospect of success. But I am unable to accept Mr Hytner's submission that the quashing of the convictions adds anything to the plaintiff's knowledge of facts relevant to his right of action. Facts which improve prospects of success are not, as it seems to me, facts relevant to his right of action."
13. The judge noted that for section 32(1)(b) of the 1980 Act to come into play, there had to be deliberate concealment of the relevant facts by the defendants. The Act may operate where the concealment operates at the time or subsequent to the accrual of the cause of action, but in that instance time would not begin to run until after the concealment had been discovered.
14. The judge held that the facts relevant to Mr Smith's right of action for false imprisonment were the fact of his detention and the fact of the alleged lack of lawful authority for that detention. It was, said the judge, plain that Mr Smith was aware of those facts long before the expiry of the limitation period. He believed that his detention was unlawful from the outset. Whether of course it was unlawful or not was an issue which would be subsequently tried in the proceedings and was not for the judge then and there to decide, but it was Mr Smith's own evidence that he believed that his detention was unlawful from the outset. The judge reckoned that by exercising his rights of appeal at the time, Mr Smith plainly considered that at the time his detention was unlawful. The judge also referred to correspondence with the European Commission on Human Rights in February 1997 relating to litigation and to litigation against his mother in May 1999 when he had indicated that he considered that the detention was indeed unlawful.
15. The main plank, as I hope I have correctly understood it, of Mr Smith's case in relation to concealment concerns what he regarded as the defendants' deliberate reluctance to show him or disclose to him his medical files and other documents relevant to his detention and to various people's opinion as to his condition in 1994 and 1995. I shall come to his submissions to me in a moment. The judge considered these submissions, not perhaps in full detail with reference to one at least of the documents that Mr Smith has shown to me. Nevertheless he considered them, and he considered that there was nothing whatever in the correspondence setting out the history of disclosure which came anywhere near close to establishing that there was deliberate concealment by the defendants of documents containing facts which they knew evidenced false imprisonment or negligence on their part (paragraph 16 of the judge's judgment). The judge was satisfied that the defendants did not conceal, whether deliberately or otherwise, any fact relevant to the appellant's cause of action.
16. If that decision of the judge's is not amenable to appeal, the rest of his decision is, as it were, unnecessary because that part of it at least relates both to the false imprisonment claim and to any claim for personal injury. But the judge did go on to consider, and I have also considered, the possible application of section 33 of the Limitation Act 1988. The judge observed that if the claim were a claim for personal injuries arising out of negligence, then the limitation period would have expired earlier, that is to say on 14th November 1998. The judge's conclusions as to section 32 applied equally to such a claim as to the false imprisonment claim.
17. As to the possible application of section 11 of the Limitation Act, the judge held that Mr Smith knew the identity of the defendants at the time the cause of action accrued. I note that Mr Smith has a ground of appeal relating to that. The judge held that he was plainly aware that the injury he suffered was significant at the time he suffered it, and the judge further held that Mr Smith had knowledge that he had suffered as a result of something done or not done by the defendants at least by 4th July 1997. Accordingly, there was nothing in section 11 or section 14 of the 1980 Act which would help Mr Smith.
18. As to the possible application of section 33, the judge held that there was no good reason for a delay of over four years from the expiry of the time limit. The clinicians involved had no contact with Mr Smith since September 1995 and their memories would have faded. Some of the employees of the respondents could not be traced and others had no recollection. Their ability to defend the claim was prejudiced by the delay. He held that the conduct of the defendants did not give a basis for the exercise of any discretion under section 33. The possibility of Mr Smith being under a disability was not relevant, at least after 14th November 1995, and the judge held that, insofar as he was able to do so on the material before him, and if there was a claim based on negligence, it was a weak one. For these reasons, which were of course the reasons that section 33 requires the court to consider, the judge decided that this was not a case in which he should exercise his discretion under section 33. Accordingly, he held that on any of these bases Mr Smith's claim was statute barred and he dismissed it.
19. The judge refused Mr Smith permission to appeal. His reason for this was that his own decision was a pure question of fact and accordingly that there was no real prospect of Mr Smith succeeding in having it overturned in this court. He ordered Mr Smith to pay the defendants' costs, which were summarily assessed in the sum of £7,500. Mr Smith, in the alternative, seeks permission to appeal against the costs order.
20. Mr Smith has a number of grounds of appeal, which I will address as they appear in the grounds of appeal in the first instance, introducing them by saying that he has supplemented them and helped me enormously, if I may say so, with what he has said in court today. He made, if I may say so, measured and entirely understandable submissions by reference to what he regards, and I am sure he is right, as the main focus of his grounds of appeal which focuses on deliberate concealment.
21. Taking the grounds of appeal briefly in the order in which they are in writing, Mr Smith first of all suggests that the defendants and their legal team were making an awful lot of noise, chattering, while he was giving evidence and making submissions, so much so that the judge might have been put off and might not have fully understood what Mr Smith was saying.
22. I have listened to parts of the tape of this particular part of the trial and an assistant has listened to all of it. I am satisfied that the tape does not bear out what Mr Smith here says. I have no doubt at all that he may have on occasions felt that he was put off a bit. But I am equally sure that anything of this kind did not affect the judge's ability to understand the case and to come to what he regarded as a proper decision. I say that because this is a judgment which is clear and comprehensive and does not show any signs whatever of lacking in understanding of what Mr Smith's case was.
23. The second ground of appeal was that the judge was wrong in upholding the defendants' case that they had not deliberately concealed facts, documents and evidence relevant to his right of action from Mr Smith. I shall come back to that because it is his main basis for today's application.
24. Mr Smith submits that the judge was wrong in failing to apply a case called UBAF v EABC 1984 3 All ER 558, which is, he suggests, authority for the proposition that a fraudulent or reckless misrepresentation does constitute concealment.
25. I have no doubt at all that a fraudulent or reckless representation can constitute concealment in appropriate cases. But the main basis of the judge's decision was that there was no such fraudulent or reckless misrepresentation in this case. Mr Smith does not accept that and it is on the basis of submissions to that effect, which I shall return to, that he brings this application.
26. Mr Smith suggests that the judge was wrong to say that it was only evidence which was concealed. He suggests that the judge was wrong in finding that any feeling of harshness to which Mr Smith admitted somehow constituted knowledge, and in doing so misapplied a case called Whitfield v North Durham Health Authority [1995] 6 Med LR 32. Mr Smith suggests that the judge was wrong to say that Mr Smith knew all along the identity of the defendant who he would sue in these proceedings. He has referred to Simpson v Norwest Holst Southern Ltd [1982] All ER 471. His submission is that there was a variety of possible people and bodies, consultants, outside agencies and independent people who might have been responsible for the misdiagnosis and other things consequent upon which he was detained and that he should not be regarded as knowing the identity until a much later date.
27. Mr Smith also has a point about vicarious liability, but I do not think that bears upon the decision that the judge made, although it may have been a submission which the defendants made at the time.
28. Mr Smith also says that the judge was wrong in giving weight to the suggestion that this was a weak case in the absence of expert evidence.
29. So far as that last is concerned, the courts in cases of this kind are inclined to regard it as necessary, perhaps essential, to have expert evidence in support of the kind of case that Mr Smith brings here, the kind of case which challenges diagnoses of a mental or psychiatric nature and so forth. I have no doubt at all that there might a case where a litigant such as Mr Smith, without the benefit from expert help, might persuade the court that matters of this kind had been wrongly done without having the opinion of an appropriately qualified expert to support the case. But I do not think the judge was, in principle, wrong in seeing some force in this particular point.
30. I return to what I think, and what Mr Smith plainly thinks, is the main composite basis of today's application. I hope I sufficiently summarise it as follows. He points to a series of disclosures, or as he would have it non-disclosures, of documents by the defendants at various stages leading up to and during the course of these proceedings. He made the point before the judge, and he has made the point before me today, that applications under the 1990 Access to Health Records Act and subsequently the Data Protection Act have to be made strictly in accordance with the requirements of the Act. One of his first complaints is that the person appointed as the appropriate health professional for the purposes of disclosure under those statutes, a Dr Hawthorne, was inappropriate because he had been concerned earlier with Mr Smith's case and also because Mr Smith says he was only interested in Mr Smith's past condition based on Mr Hawthorne's own past notes and not, as he should have been, on Mr Smith's present condition. The point of all this was that the defendants, at various stages, were taking the line that certain documents should not be disclosed to Mr Smith because they might cause harm to him. Mr Smith says that this is simply wrong, but that in any case the person pointed to advise in relation to this was not an appropriate person. All other things led, he says, to what should have been seen by the judge as deliberate concealment of important documents. Mr Smith has taken me to two such documents, I guess by way of examples, but they are, for his submissions, the examples that he wishes to press.
31. The first of those comes before the court as exhibit DDS2. There is a subsequent exhibit called MEH1, referred to in the statement of Dr Hawthorne dated 23rd May 2001, which is a schedule of records disclosed on 17th February 2000. Part of that schedule relates to records between 1st April 1994 and 31st May 1994, but in fact from about 26th April 1994, which is the date when Mr Smith's detention, for the purposes of these proceedings, was about to begin. Certain documents are included in that schedule, but Mr Smith makes the point that what turned out, in his view, to be a very important other document was not included in the schedule. That was a letter dated 26th May 1994 written by Mr Carmody, the approved social worker to whom I have already referred, and also signed by a man called Peter Green, Team Manager Mental Health Team. This letter was dated 26th May 1994 and it expresses considerable doubt about any opinion that at that stage, 26th May 1994, Mr Smith was a person who was liable to be detained. One paragraph in the letter reads as follows:
"Over time I have learned to respect the view of the nursing staff at West Villa. They were strongly of the opinion that the order should not be made. Because there were so little time I was unable to pursue the points that they were making to my satisfaction."
That letter, says Mr Smith, was central to his claim that he had been wrongly detained. It expresses an opinion of somebody at the time as to whether he should have been detained, and it was, so he says, a document that was concealed from him in the sense at least that it was not disclosed on 17th February 2000; 17th February 2000 was a date before the statutory six year limitation period had expired.
32. Mr Smith has another allied point, which is that the defendants took an awful long time to respond to his pre-action letter - 15 months is the period that he tells me they took to respond to this letter. Although he made this particular point in his submission in relation to costs, he might also bring it forward, it seems to me, in his submission in relation to concealment. You do not perhaps get much in the way of deliberate concealment by simply not answering a letter, but Mr Smith was, in effect, saying that by February 2000 and so forth, had he been in possession of the medical records that he ought to have had, then he would have been able to bring the claim within the six year statutory limitation period.
33. The second document that Mr Smith has particularly drawn my attention to is a document towards the end of the period of intermittent detention with which the case is concerned. It is a police report from the Surrey Police and it runs to three and a half pages. It looks as if it was written on about 29th October 1995. The police officer in question sets out a lot of detail about how he was called to the hospital on 28th October 1995 to attend to help staff to transfer a patient, who was Mr Smith, from the hospital to the West Villa. I have read this document in court in full, and what it appears to be saying, in summary, is as follows. The police officer was called because there had been at least one, perhaps two, violent incidents at Brookwood Hospital with which Mr Smith was concerned. One of the members of the nursing staff had in some way been attacked, but did not want the police to act within their normal powers because he reckoned that it was part of the job of someone working at a hospital such as this. The staff, quite a lot of them, and some psychiatrists were telling the police officer that Mr Smith was subject to a detention order under the Mental Health Act -- had been sectioned, to use a common parlance -- but there was considerable doubt as to whether at the time this was strictly correct. The police officer spoke to Dr Andrews and Dr Andrews told the police officer that he was not at the hospital under any section. There was a certain amount of coming and going and somebody produced a document, which the police officer exhibits to the statement, on the footing that this was indeed an order authorising the detention of Mr Smith under the Mental Health Act.
34. Looking at the document, I am not at all sure that it was such an order. It seems to have been a document recommending that he might be detained for the purposes of section 5(2) of the Act. However that maybe, the police officer was quite unclear whether there was any lawful authority under the Mental Health Act to detain Mr Smith and says so in this document. What subsequently happened was that Mr Smith went back to the hospital, as he tells me today because, among other things, he did not have his shoes if he did not go back. The document ends by saying that on the following day, 29th October 1995, he phoned West Villa to inquire about Mr Smith and was told that he had been admitted under the section.
35. Mr Smith's first point about this document is that when standard disclosure was made in these proceedings on 16th December 2003, a number of documents relevant to this sort of thing were disclosed but this police report was not. He has shown me a letter of 17th February 2004 where solicitors acting for the defendants say that it was not disclosed because it was not a document which formed part of Mr Smith's medical records. Mr Smith counters this by saying that, however that may be, at least the piece of paper attached to the police report was a document relating to his medical records.
36. I regard this subject matter, and I am sure Mr Smith does also, as the central point that he wishes to make on an application for permission to appeal, and if he is given permission on the appeal, in relation to deliberate concealment.
37. The judge did not overlook this question, although he did not look at the two documents to which I have referred in as great detail as Mr Smith has done today, or indeed perhaps as I have just done this afternoon. But the judge did say that there may have been reluctance in relation to the disclosure of documents in and relating to the proceedings. He came to two fundamental decisions adverse to Mr Smith, which I have already related. The first was that he was concerned, as authority indicates, with facts relevant to Mr Smith's right of action and not facts or documents which would make the proving of his right of action stronger. He came to the decision, which in my judgment was entirely right, that these documents and so forth were evidence in support of the claim and not facts relevant to his right of action. It seems to me that the judge's decision as to the facts relevant to the right of action, that is to say that Mr Smith was well aware of these as long ago as 1995, at any rate on his own case, is one which is unimpeachable.
38. The second decision to which the judge came was his fundamental judgment of fact that there was "nothing whatever in the correspondence setting out the history of disclosure which comes anywhere near close to establishing that there was deliberate concealment by the defendant of documents containing facts which they knew evidenced false imprisonment or negligence on their part" (paragraph 16). That is a judgment of fact on the totality of the evidence put before the court which, in my judgment, and notwithstanding the points which Mr Smith has made today, is one which is simply not amenable to appeal in this court. Challenging judgments of fact in an appeal court is always an uphill task, and I am completely unpersuaded, I regret, that these matters to which Mr Smith refers come anywhere close to making a case which has a real prospect of success, and that is the test in this matter in this case.
39. I do not, I regret, regard the other points of appeal which I have touched upon as altering that position and, accordingly, in my judgment, I am obliged to dismiss this application for permission to appeal.
40. I also reach the same conclusion in relation to the order for costs. Mr Smith there says, in summary, that the defendants' conduct of the proceedings and their conduct in relation to him, much of which is the same stuff as I have already been referring to, was such that he ought not to be ordered to pay their costs. To put it another way round, they do not deserve to have their costs of these proceedings when they have behaved as they did. His main concern is that they succeeded on the basis that his claim was out of time, but the delayed disclosure, the appointment of the wrong person as appropriate health professional and the refusal to disclose before the six years had run the same documents that I have already been referring to are such that they ought not to have their costs in this connection. Mr Smith says that the reply to his pre-action letter took 15 months and did not happen until the six year time limit had passed.
41. The judge, as I have said, took into account the defendants' conduct of the proceedings. Costs, as always, are very much a question for the discretion of the judge of first instance making the decision. It is very difficult indeed to upset a first instance judge's costs decision unless he has made some error of principle. I do not understand any error of principle to have been made here. The judge simply made the discretionary decision that he did in circumstances where Mr Smith had brought these proceedings and they had been struck out as being out of time. So I regret to say that on that issue also I refuse permission to appeal.
42. I would like to end by thanking Mr Smith for his very clear and very courteous submissions.
Order : Application for permission to appeal refused.
