ABSTRACT
In Hartley v Birmingham City District Council [1992] 2 All ER 213, the court held that problems associated with the evidence were the most significant issues for consideration in the exercise of its discretion. (See, also, Dale v British Coal Corpn (1992) The Times, 2 July, where Stuart-Smith LJ said that the court should take into account the claimant’s prospect of success in considering whether the limitation period should be disapplied, but it should not attempt to determine the merits solely on the affidavit evidence. All that the court must do is determine the overall prospects. Further, in Forbes v Wandsworth HA [1996] 7 Med LR 175, the court noted that the factual evidence of the case was highly questionable, and this, together with the fact that the claimant was legally aided, placed a heavy burden on the defendant which ultimately persuaded the court not to exercise its discretion. In Dobbie, the fact that the documentary evidence was still available was not enough to persuade the court to exercise its discretion. Furthermore, in Whitfield v N Durham HA [1995] 6 Med LR 32, the court still felt that there would be difficulties in reconstructing the events despite the fact that the relevant documents and the original slide on which the diagnosis was made were still available,
More recently, in Davis v Jacobs and Camden and Islington HA and Novartis Pharamaceuticals (UK) Ltd [1999] 3 Lloyd’s Rep Med 72, the Court of Appeal held that, in exercising its discretion, great care should be taken when considering the prospects of success. At first instance, Turner J doubted the credibility of the claimant’s evidence, which contributed to him ultimately refusing to exercise his discretion. However, the Court of Appeal stressed that, given the interlocutory nature of the proceedings, it was important that all matters were taken into consideration. Where there is a real possibility that the claimant may succeed, issues as to credibility were not of such importance. With the advent of the new Civil Procedure Rules 1998, either party who contends that the prospects of success or defence are significant can, of course, bring an application for summary judgment under CPR r 24.
