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27 May 2022 / Claire Christopholus , David Locke
Issue: 7980 / Categories: Features , Clinical negligence
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Second chances & the relative (in)significance of Bailey

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Claire Christopholus & David Locke on a clinical negligence claim that ran again & the influence of Bailey
  • Reviews an attempt to bring a clinical negligence claim again, 16 years after it was discontinued, on the basis Bailey changed the law on material contribution.
  • Covers Astley v Mid-Cheshire Hospitals Foundation and refers to Bailey v Ministry of Defence.

In Astley v Mid-Cheshire Hospitals Foundation NHS Trust [2022] EWHC 337 (QB), Mr Justice Eyre refused the claimant’s application, made pursuant to CPR Pt 38.7, for permission to bring what was ostensibly the same claim against the defendant, some 16 years after the original claim had been discontinued. A key issue was whether the decision in Bailey v Ministry of Defence [2008] All ER (D) 382 (Jul), [2009] 1 WLR 1052 represented a change in the law.

Background

It was alleged Mr Astley suffered a brain injury as a consequence of a delay in his delivery, in 1997. Proceedings were issued in 2004 but were then discontinued following the claimant’s unsuccessful application, heard on

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