PI Brief Update

Permission granted to withdraw admission made 3 years earlier - Nancy Kelehar, Temple Garden Chambers

15/03/24. West v Bedfordshire Hospitals NHS Foundation Trust [2024] 2 WLUK 516

Date of Judgment: 28/02/2024

In these proceedings relating to a wrongful birth claim, the second defendant is a private ultrasound services company. In 2015, it had provided its services to the claimant following which the claimant’s daughter was born with spina bifida. The claimant’s case is that the foetal abnormalities should have been visible on those scans and resulted in further assessments. The 7-day trial on liability is listed for June 2024.

In a recent ex tempore judgment, the second defendant (D2) was granted permission pursuant to the updated CPR r.14.5 to withdraw admissions made over 3 years earlier. D2 had made admissions in a letter of response dated August 2020 and repeated in its Defence, in respect of certain breaches of duty based on evidence obtained from the sonographer. The application to withdraw those admissions was made on the basis that the original file handler had made a mistake or had misunderstood matters; the mistake was realised in August 2023 in consultation with counsel; it had not taken an unfair advantage in making later investigation of the claim more difficult; and it acted in good faith and promptly when the mistake was identified.

Rule 14.5 changed in October 2023 and now reads as follows:

In deciding whether to give permission for an admission to be withdrawn, the court shall consider all the circumstances of the case, including—

• the grounds for seeking to withdraw the admission;
• whether there is new evidence that was not available when the admission was made;
• the conduct of the parties;
• any prejudice to any person if the admission is withdrawn or not permitted to be withdrawn;
• what stage the proceedings have reached; in particular, whether a date or period has been fixed for the trial;
• the prospects of success of the claim or of the part of it to which the admission relates; and
• the interests of the administration of justice.

This requires the court to consider all of the circumstances and the mere passage of time is not determinative. Further, the factors listed above are not exhaustive. Whilst the mistake or misunderstanding was a regrettable situation, the court held that D2’s application should be taken at face value. Rather than a deliberate or tactical decision, there had been an error of oversight. It was important to consider the overriding objective and avoid having a knee-jerk reaction to the passage of time. There was no evidential prejudice to the claimant, but significant prejudice to D2 and concern regarding the sonographer’s professional reputation. As a fair trial was still possible and there were four months until trial, the court granted the application in the circumstances.

In addition, the first defendant (D1) had made an application to substitute a new expert witness for its existing expert because its existing expert had since retired, would be out of the country for most of the year, and would have to pay additional premiums to the Medical Defence Union if he was the trial expert. The court applied the principles in Avantage (Cheshire) Ltd v GB Building Solutions Ltd (In Administration) [2023] 4 WLUK 38, exercised its discretion in accordance with the overriding objective and granted D1’s application, subject to the condition that the existing expert’s reports still had to be disclosed to the claimant.

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