England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NORWICH DISTRICT REGISTRY
(HIS HONOUR JUDGE DAVID MELLOR
(sitting as a deputy High Court judge))

		Royal Courts of Justice Strand London, WC2 Monday, 14th October 2002

1. LORD JUSTICE MANTELL: On 25th February 1974 the claimant appellant was discharged from service with the Royal Air Force on medical grounds. He was then 22 years of age or thereabouts and had attained the rack of senior aircraftman and successfully, as I understand it, taken and passed the examinations for promotion to sergeant.
2. On 7th July 1997 he issued proceedings in the Lowestoft County Court, subsequently transferred to the Norwich District Registry of the High Court. By those proceedings he claimed damages for personal injury arising from having been given inappropriate medical treatment whilst still in the Royal Air Force and for economic loss said to stem from damage done to his civilian career as a result of his Royal Air Force discharge records containing a wrong diagnosis of paranoid schizophrenia.
3. The second claim is founded on an allegation of malicious falsehood. To put a little more flesh on the bones, it is the claimant's case that while suffering a relatively mild breakdown in his mental health his records got mixed up with someone in the RAF having a first name which corresponded with the claimant's second, and being a person suffering from a serious mental condition.
4. The result of all that was, according to the claimant, that he was given drugs which were wholly inappropriate in the circumstances. As a further result, he suffered some transitory effects including liver damage from which, so it appears, happily he has made a full recovery.
5. Thereafter, as he would say, to cover-up the mistake the authorities wrongly ascribed to him the serious condition mentioned -- that is to say paranoid schizophrenia -- and that passed into his record. They did that, so it is suggested, in order to justify the treatment which he had been given whilst still in the Royal Air Force.
6. The Ministry of Defence, the defendants in the action and the respondents to this appeal, say all that is pure fantasy. But the point is taken on the respondent's behalf and has been taken that both aspects of the claim are now time-barred. They say that because by section 2 of the Limitation Act 1980 the time within which the action should be brought was at that date six years, now altered, as we all know, in cases of libel, slander and malicious falsehood to a period of one year, the claim based on malicious falsehood is time-barred and, a fortiori, so is the claim for personal injury where the relevant period would have been one of three years.
7. The learned judge who heard this matter as a preliminary point was His Honour Judge Mellor sitting at Norwich. He gave his judgment on 31st October. By that judgment he found for the defendants.
8. The claimant has been content to accept the judge's ruling with regard to the personnel injury claim. He has not been content to accept his ruling with regard to the claim based upon malicious falsehood. Accordingly, he sought permission to appeal to this court. In the first instance his application was turned down on paper by Robert Walker LJ (as he then was). It may be necessary to return to the reasons which the learned Lord Justice (as he was) gave at that time.
9. The application was however renewed by the claimant, as was his right. It came before Latham LJ, who was persuaded, after some hesitation, to grant permission to appeal. Hence the matter comes before this court.
10. The learned judge at first instance placed weight on the fact that there came a time in 1987 when the appellant saw a certain Dr Sparkes. On that occasion information was revealed which, according to the appellant in the witness statements which he had prepared for the hearing before His Honour Judge Mellor, alerted him to the fact that there had been a wrong diagnosis. There were in fact two witness statements. The first of them, at paragraph 41, contains the following:

"Looking through the notes he informed me [that is a reference to Dr Sparkes] there was a diagnosis by Dr Shepherd in 1973 the impact of which was such that Dr Sparkes said 'employers should be protected from people like me'. I was flabbergasted and taken aback. I denied I had ever been examined by a Dr Shepherd in 1973 or at all although I had been seen by Dr Kingsley-Jones in 1975 whilst a patient of my then GP Dr AG Moore. ... I was completely shocked by this disclosure. I did not ask to see the records there and then, but informed Dr Sparkes that I would instruct a Solicitor to obtain the records and seek advice about the matter."

11. In his second statement, at once again paragraph 41, the matter is put a little differently and at rather greater length but to much the same effect. It makes it plain that the appellant was at that time informed that he had been diagnosed as suffering from schizophrenia.
12. The learned judge considered that by that time, at the latest, the appellant had become possessed of sufficient information to support the bringing of proceedings. He was, of course, purporting to apply section 32 of the Limitation Act 1980, which allows that where a defendant has concealed a relevant matter such as is necessary or would be necessary to support the bringing of proceedings, time does not begin to run until that fact becomes known. I read from section 32:

"Subject to subsections (3) and (4A) below, were in the case of any action for which a period of limitation is prescribed by this Act, ...

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; ...

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it."

Basing himself upon the provisions of that section, the learned judge came to the conclusion that by the time of the meeting with Dr Sparkes, at any rate, the claimant was in a position to commence proceedings having obtained all the material, which has not been added subsequently to in any material way, to support his claim. He also found that by the same time, if not earlier, he was in possession of all sufficient material to mount a claim for personal injury. As I say, there has been no challenge to that latter decision.

13. Ultimately at page 19 of the judgment, the learned judge, having referred briefly to the history, announced his conclusion. This is how he expressed himself, beginning at page 18:

"Insofar as that is concerned the position seems to me to be this, the necessary facts underlying the discrete cause of action identified and in particular the fact that the defendant had disseminated medical records to his General Practitioner and others that he would contend to be false were apparent to the claimant in 1987, or at the latest in 1988. What was still unknown to him, on his case, was the method of concealment. In large measure that method of concealment seems to have come to his attention either by documents that came to him in June 1994 or by the Treasury Solicitor's disclosure in 1999. But what is material is the knowledge of the facts necessary for the claim. If the factual case put forward by the claimant be right and there was, in the wide sense in which deliberate concealment has been interpreted, such concealment ceased to have any effect in 1987 or 1988."

14. The appeal before this court is based upon the straightforward and clear submission that on the available evidence the learned judge was not entitled to reach that conclusion. It is, in effect, a challenge to a finding of fact, made the more difficult from the appellant's point of view because the learned judge had not only all the documentary material which has been laid before this court, but had also had the advantage of seeing the appellant give evidence and hearing him cross-examined.
15. As the case is put, with great ability, I would say, by Mr Bate and in not the easiest of circumstances, it is said that although the fact that there had been confusion possibly and a wrong diagnosis might well have been apparent in 1987, there was quite insufficient material to support an allegation of malice. That only came about, so it is submitted, as a result of further material which came to light so far as the appellant is concerned in 1994, albeit that his solicitors had had possession of the same documents at some date in 1991.
16. Those documents appear in the bundle and are copies of the medical records compiled during the appellant's time in the Royal Air Force. They disclose, so it is said, material suggestive of mala fides.
17. For my part, I have the greatest difficulty in seeing how the documents to which we have been taken add anything at all to the information which had been in the possession of the appellant since 1987. Despite a very brave effort by Mr Bate to persuade us that they do have significance, I have to say for my part I have been unable to grasp what that significance might be.
18. It seems to me that the case for the appellant has grown no stronger than it was or had been in 1987, as is apparent from the passages in his witness statements and from the various other documents which have been brought to our attention. It seems to me that the learned judge was perfectly entitled to reach the conclusion which he did upon all the material, including the evidence given by this appellant.
19. For those reasons, I would dismiss the appeal.
20. LORD JUSTICE RIX: I agree.
ORDER: Appeal dismissed with costs; liability to pay such costs adjourned generally; detailed assessment of the claimant's legal funding costs. (Order not part of approved judgment)