High Court refuses reintroduction of clinical negligence claim following earlier discontinuance

Astley v Mid Cheshire Hospitals NHS Foundation Trust [26.01.22]

Date published





In this case, the High Court refused the claimant’s application seeking permission to reintroduce a claim against the defendant after discontinuing the original claim 14 years earlier.


The claim itself concerned an alleged delay in delivering the claimant by caesarean section on 24 August 1997. The claimant alleged that the caesarean section should have been undertaken by 16:45 (as opposed to 17:30 when it actually took place) and, had the claimant been delivered by 16:45, the claimant would have been spared a permanent cerebral injury.

The matter was due to come to trial in 2006, however, at expert meetings one of the claimant’s experts conceded that delivery at 17:05 would have been acceptable. Then, a second claimant expert accepted that had the claimant been delivered at 17:05, he would have been in a better position but would probably still have been disabled and it was not possible to know what difference delivery at 17:05 (versus 17:30) would have made. The claimant applied to adjourn the trial, seeking permission to get fresh evidence. The court refused the claimant’s application and the claimant did not appeal the decision, subsequently filing a notice of discontinuance.

The central question for the court now was whether the Court of Appeal’s decision in Bailey v Ministry of Defence [2008], regarding material contribution, constituted a change in the law such that the claimant was entitled to bring a new claim.


The claimant’s application was refused.

The court confirmed that under Rule 38.7 of the Civil Procedure Rules the court was entitled to grant permission for claimants to make another claim in a number of circumstances, including where there has been a change in the law. In line with Hague Plant Ltd v Hague [2014] the court would also have regard to public interest and to consider the position ‘in the round’.

In respect of whether Bailey marked a change in the law, the court accepted the defendant’s case that Bailey applied existing principles rather than set out a new rule.

The court then conducted a balancing exercise considering all issues in the round. In the claimant’s favour the court took into account the fact the claimant had suffered “catastrophic effects following his birth” and approached the matter on the basis that if permission was given for new proceedings “there is a claim which would be capable of proceeding to trial with a prospect of success”. The judge adding that “I go no further than that but that is clearly a factor operating in the claimant’s favour”.

The court also observed that other factors to take into account were that “a successful claim would result in a substantial award” and the claimant had no other opportunity for redress. This was then balanced against the fact the claimant had not sought to appeal the decision to seek further evidence in 2006, and the significant detriment it would cause to the defendant to allow a matter to progress some 14 years later when the defendant had been, understandably, proceeding on the basis the claim had been discontinued.


This judgment confirms that discontinued claims will not be allowed to resurface, a significant time later, due to subsequent favourable case law coming to light. The court applied a firm distinction between cases in which existing principles in case law are being applied with the much narrower and rarer circumstances where there is a real change in the law i.e. when a superior court overrules a lower court, where such change “would clearly be a factor of great weight”. Mr Justice Eyre added that the “position must be different where the further authority relied on indicates an incremental development and an elucidation or clarification which is inherent in the common law system”.

The judgment also demonstrates that in considering matters in the round the court will take into account the wider circumstances of a case, such as court resources and the overriding objective.