The Court of Appeal has dismissed an appeal against an order requiring two preliminary issues to be heard in a medical negligence case involving a claim against the estate of a deceased doctor. The court did not decide whether the claim is time-barred or whether the relevant legislation is constitutional.
The underlying claim concerns a woman who alleges that, when she was 15, Dr O’Callaghan failed to identify or investigate a lump in her neck. She was diagnosed with papillary thyroid cancer in 2015, after a later GP referred her to hospital. These are allegations in the claim, not findings by the Court of Appeal.
Dr O’Callaghan died in September 2013. His widow, sued as executrix of his estate, pleaded that section 9(2)(b) of the Civil Liability Act 1961 bars the claim because proceedings were not started within two years of his death. The plaintiff issued proceedings in April 2017. She argues that the time limit does not bar her claim or, alternatively, that the provision is unconstitutional.
The High Court ordered that the first preliminary issue be whether the statutory time limit bars the claim. Only if the answer is yes would the court consider the second issue: whether the provision is unconstitutional. The plaintiff appealed, arguing that constitutional challenges should be dealt with in a full trial and that splitting the issues could cause evidential unfairness. She also argued that insurance, rather than estate assets, was at stake.
In a judgment delivered by Ms Justice Power, the Court of Appeal said a unitary trial is generally preferred, but there is no absolute bar to directing preliminary issues that include a constitutional question. The constitutional question must come last, consistent with the principle that courts should avoid deciding constitutional validity when a case can be resolved on another basis.
The court considered the time-bar question sufficiently distinct and capable of being decided on agreed facts. It said the plaintiff could present her arguments on statutory interpretation at that hearing. If she succeeds on the time-bar issue, the constitutional question will not need to be decided. If she fails, the trial judge can consider whether further evidence or directions are needed. The Attorney General told the Court of Appeal he would be represented at the limitations hearing.
The court made no finding on the insurance argument, saying it was a matter for the preliminary hearing. It also left questions about participation in the constitutional hearing and any necessary evidence to the trial judge. The High Court order remains in place: the appeal was dismissed. The Court of Appeal adjourned costs and directed written submissions on that issue within 28 days.