EWHC allows executrix to pursue time-barred negligence claim against pathologist

Monday, 04 September 2023
The widow and executrix of Laurence Shaw (the deceased) has been granted permission to pursue her professional negligence claim against a consultant pathologist, even though the claim was not served until 13 years after the alleged mistake was discovered.

The deceased was referred for histology tests in October 2007, after a potentially malignant lesion was observed on his skin. The pathologist who reviewed the test results, Brigid Maguire, reported the samples as being benign and the deceased was discharged without any follow-up treatment. However, the lesion returned in 2009 and further tests confirmed the presence of malignant melanoma. Moreover, a review of the earlier samples showed the malignancy was already present then. The tumour later metastasised and the deceased died in January 2014.

Later in 2014, the deceased’s widow Karen Shaw, who was also executor of his estate and sole dependant, instructed solicitors to investigate a possible claim of negligence. After two years they issued a claim but named the wrong parties as defendants. The claim form was then amended to name Maguire as defendant. However, the claim was never served on Maguire and subsequently lapsed. After a further three years, Shaw instructed new solicitors to pursue a professional negligence claim against the first solicitors. Her new solicitors also sent a letter of claim to Maguire in April 2022 and proceedings were issued in August 2022.

Maguire denied liability and argued that Shaw's claim was time-barred because no claim was served on her for 13 years after the deceased's date of knowledge of the alleged mistake. This passed well beyond the time limit set by section 14 of the Limitation Act 1980 (the Limitation Act). Maguire maintained that the 'date of knowledge' began in November 2009 when the re-examination of the original tissue samples found them to be malignant, so proceedings should have been issued by November 2012 at the latest. Thus, the deceased himself was already barred from bringing an action at the time of his death.

Maguire also argued that Shaw could not bring an action after her husband’s death in capacity of executrix, because s.1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 states that a deceased person's estate can only take on a cause of action that is vested in the deceased at his death. Section 11(5) of the Limitation Act further states that the survival of a cause of action for the benefit of the estate of a deceased person arises only if the deceased died during the time the primary limitation period was still extant.

In reply to this defence, Shaw claimed that the limitation clock started, at the earliest, on 9 January 2014 when her husband died and that in fact her own 'date of knowledge' under Limitation Act was later than that. The delay, she said, was therefore only about three years or just over five years at most. She argued the Limitation Act allowed her claim to be brought within this period and that it would be equitable to extend the limitation period as it would still be possible to have a fair trial.

Evidence was produced for both sides on the reasons for the delay in the original claim; the effect on both parties if the claim were allowed to proceed, particularly the alternative legal remedies available to Shaw; the strength of Shaw’s case against Maguire and whether the latter's ability to defend the claim had been prejudiced by the delay. Ultimately, the England and Wales High Court (EWHC) had to conduct a 'balancing exercise' to decide whether the prejudice from losing the claim would be worse for Shaw than for Maguire.

'[Shaw] has not contributed to the delay caused by her former solicitors [and] I can see no reason to visit any of the faults of her lawyers on [her]', commented the judge. 'Nor can I be satisfied that [her] claim against her former solicitor would succeed...Any prejudice to [Maguire] is more than outweighed by the prejudice to [Shaw]... a fair trial can still take place with substantially the same evidence as would have been available had proceedings been served within the limitation period.'

Accordingly, the EWHC ruled it would be equitable to allow the action to proceed and directed that s.11 and 12 of the Limitation Act shall not time-bar the claim (Shaw v Maguire, Preliminary Issues, 2023 EWHC 2155 KB).


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