Michelle Prudence & Anor v Gloucestershire Hospitals NHS Foundation Trust [2025] EWHC 1209 (KB)

Claim No. KB-2023-001571

Claim No. KB-2023-001572

[2025] EWHC 1209 (KB)

IN THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

Before

MASTER THORNETT

Between

MICHELLE PRUDENCEClaimant

FLEUR CHARLTONClaimant

GLOUCESTERSHIRE HOSPITALSDefendant

NHS FOUNDATION TRUSTDefendant

Date 16 May 2025

MR Andrew Roy KC (instructed by Anthony Gold Solicitors LLP) for Claimant

MR Simon Trigger (instructed by Browne Jacobson LLP) for Defendant

Hearing Hearing date: 17 February 2025

JUDGMENT

[1]This is the reserved judgment on strike-out and summary judgment Applications brought by the Claimant in these cases, each dated 21 August 2024. The Claimants bring very similar claims based on the same tragic event. A baby, referred to throughout by both parties as “Baby Margot”, was born in May 2020 at a Birth Unit in Cheltenham (“the Unit”) and died a few days later having been transferred to the main hospital in Gloucester (“the Hospital”). The Defendant admits there was negligence in the delivery of Baby Margot whilst at the Unit. Two midwives who were initially involved in the delivery at the Unit have been the subject of significant criticism upon investigation. The Claimants were also midwives, employed by the Defendant, who provided treatment to Baby Margot sequentially to the first midwives. This treatment included accompanying Baby Margot in an emergency ambulance transfer to the Hospital in the course of their employment. The Claimants allege that as a result of matters that occurred during the transfer, they have each sustained significant psychiatric injuries. Each Particulars of Claim uses descriptions such as “frightening high speed journey” and “horrifying” to emphasise the intensity of this particular emergency transfer.

[2]Both parties have, if only for convenience of reference, each come to refer to the above general sequence of events as the “”Baby Margot incident”. For the reasons that follow, at least in the specific context of the Claimants’ Applications, I am less inclined always to adopt this as a general descriptor. The point being, as consistently has to be visited throughout the required analysis in the Applications, that negligence in the delivery of Baby Margot and hence breach of duties owed to her and her mother, are not contiguous with duties of care owed to the Claimants as employees, whose occupation was to care for mothers and babies in the course of what may often prove to be problematic deliveries.

[3]The legal basis for the claims, both in principle and then how such relevant duty or duties were breached on these facts, is plainly not straightforward and has been the scrutiny of the Defendant and the court from the time of issue.3.1 The original Particulars of Claim in both cases asserted that the Claimants were employees of the Defendant. The precise scope of the duty of care relied upon that was said to arise as a result of that relationship, however, was not pleaded. The Particulars of Claim instead adopted a broad proposition that because the Claimants understood that “it is not disputed that the Defendant was negligent in respect to the Baby Margot Incident” then factual causation in respect of the Claimants’ injuries was made out. The then logic was that, had there been no “Baby Margot incident” then there would never have arisen a need for the Claimants to become engaged in an emergency transfer.

3.2 Significantly, the only specific particulars of negligence were particulars of clinical negligence in respect of the pre-birth, delivery and immediate post-birth treatment Baby Margot and her mother received before the involvement of the Claimants. It was alleged that these satisfied factual causation as to the emergency transfer and so the scenario of danger in which the Claimants were placed. The Claimants have since issue always placed emphasis upon an independent report dated November 2020 from the Health Services Safety Investigation Body (“HSIB”) in its entirety and also a BBC Panorama documentary programme following an investigation in the Unit. At least from the Particulars of Claim, as distinct from a more nuanced reliance presented in their Applications, the Claimants rely upon a general and adverse picture of poor care in the Unit at least as far as Baby Margot and her mother were concerned before the involvement of the Claimants. The implication is that this picture is largely self-proving of their claims.

3.3 Their proposition is that because the Claimants were placed in an avoidably dangerous position, the phrase being they were placed “in the zone of foreseeable physical injury”, so each were primary victims. Reliance is pleaded on both Cullin v London Fire and Defence Authority [1999] PIQR P314 and Donachie v CC Greater Manchester

[2004] EWCA 405

. As the Defendant reasonably points out, these are authorities confirming where the duties are owed to rescuers such as policemen and firemen reasonably to avoid or protect them against physical injury, then if psychiatric injury instead is sustained, such claims are also sustainable. The existence of a duty or duties of care to the Claimants in their position is not, or not obviously, analogous according to the Defendant.

3.4 The purpose of this judgment is not to explore and evaluate the legal basis of the claims in principle. However, it remains relevant to note the conceptual challenge of the Claimants’ legal arguments in the context of assessing what the Defendant fairly can be expected to admit, deny or state that it is unable to either admit or deny. Further, to keep the same in mind when noting the sequence of initial and then amended Statements of Case as lead to the present Applications.

3.5 In its initial Defences, the Defendant pointed out that no scope of duty or allegations of breach of duty had been advanced. It was expressly asserted that the Claimant was required to plead how and in what manner it was alleged the Defendant was in breach of any duty of care and to whom that duty of care was owed. The Defendant asserted that pleading a general reliance on an entire HSIB report as the allegations of breach of duty against the Defendant did not reasonably allow the Defendant to respond.

3.6 The Claimants Replies to the initial Defences assert that it was the Defendant that had misconstrued “both the Claimants case and basic principles of negligence”. Despite this averment (if it is one, rather than mere comment), I note that each Reply tended to introduce a different emphasis to each claim, now more towards foreseeable injury because of the nature of the transfer rather than a primary duty of care in the Claimants having been called to become involved at all.

3.7 Perhaps mindful of the legal challenges pleaded in the Defences, each Particulars of Claim were amended. The amendments, however, failed more fully to explore the precise duties as owed to the Claimants and how the events relied upon constituted a breach. They instead extended and amplified Particulars of Negligence drawn particularly from clinical findings in the HSIB report. In effect, to use the opportunity of amendment to instead represent and further emphasise the nature and depth of the breaches of duty owed to Baby Margot and her mother.

3.8 It is the context of what the Defendant would describe as a lost opportunity to provide a more detailed and coherent legal presentation of the Claimants’ claims rather than breaches of duty owed to the third parties that the present Amended Defences have to be read.

3.9 It is well established and understood that that Replies (to Defences) are not to be used as an opportunity to reconstitute or materially supplement the claim as pleaded in the Particulars of Claim. New claims or revised bases for the claim as brought ought not to appear in a Reply. Instead, the purpose is to reply to the Defence, if and in so far as counter-comment or legal argument is necessary to inform and enable both parties to then prepare the evidence in their respective cases. In many cases, of course, claimants feel no need simply to comment in reply and thus engage merely in gainsay.

3.10 I note with a degree of surprise, that the Amended Replies introduced additional material. They explain now that the duty of care engages the duty to provide a safe system of work and competent co-workers. A new allegation of vicarious liability is pleaded. That said, no breach of either this expanded duty of care or vicarious liability is pleaded. I infer this is a conscious decision to usher in new allegations as discreetly as possible. To plead breaches would, of course, blatantly present by way of purported Reply what, in reality, would be a Re-Amended Particulars of Claim. Either way, none of this assists the clarification of the main claims.

3.11 No conclusion or direction arises from these observations about the style and sequence of the Claimants’ pleadings. However, in the context of the Claimants’ Applications, as issued very shortly after the Amended Replies, it must be noted that the Claimants have continued to clarify and develop their claims in each pleading they have then served. This, I find, is not the most encouraging start to Applications that maintain it is the Defendants that are wholly in breach of CPR 3.4(2) such that many paragraphs of the Defences should be struck out.

[4]The Claimants seek to strike out ten different paragraphs of the respective Amended Defences pursuant to all three grounds available under CPR 3.4(2). They maintain that each limb of rule 3.4(2) is made out, such as to justify entire striking out, even though each Amended Defence paragraph challenged features an obvious mixture of admissions, denials and matters the Defendant says it is unable to either admit or deny. The Claimants also each seek Summary Judgment, again based on the ten paragraphs.

[5]To do so for the two-hour hearing as listed, the Claimants’ solicitors have prepared a near 600-page bundle and Counsel a 35-page skeleton argument replete with an authorities bundle. The solicitors present a Statement of Costs of £41,400 including £18,862.50 for Leading Counsel’s involvement. The breadth and detail of this material essentially supports the Claimants’ broad submission that the “Baby Margot incident” establishes that the issues in their claims can substantially to be limited and reduced by way of these applications. The proportionality and relevance of this approach is questionable, although this is perhaps more a question on costs.

[6]Given the multiplicity of issues raised by the Applications and, as Mr Trigger on behalf of the Defendant seeks to emphasise, the risk is that such approach might generalise or overly simplify the constituent tests presented respectively by CPR 3.4 and CPR 24. The court necessarily has had to go through each allegation forensically. Indeed, this is the approach invited by the Claimants who, despite reliance upon the broad proposition as to the Defendant having no argument on “the clinical negligence issue”, have through Mr Roy produced several pages of tabulated comparison and comment upon each and every element of the relevant paragraphs in the Amended Defences as challenged.

[7]I will deal with each limb of the Applications accordingly.

Strike-out

[8]Both parties remind me of the provisions of CPR 16, CPR 3.4, their Practice Directions and relevant well-known authorities. No point of law arises although each party predictably seeks to take me to particular emphases in the authorities they say are pertinent.

[9]Both in his skeleton argument and oral submission, Mr Roy submits that the Amended Defences are in fundamental breach of the mandatory requirements of CPR 16 and the guidance in SPI North Ltd v Swiss Post International (UK) Ltd

[2019] EWCA Civ 7

. The Court in that case when addressing the remit of Part 16 held at paragraph 49: “a defendant is unable to admit or deny an allegation within the meaning of 16.5(1(b) where the truth or falsity of the allegation is neither within his actual knowledge (including attributed knowledge in the case of a corporate defendant) nor capable of rapid ascertainment from documents or other sources of information at his ready disposal. In particular there is no general obligation to make reasonable enquiries of third parties…..instead the purpose of the defence is to define and narrow the issues between the parties in general terms on the basis of knowledge and information which the defendant has readily available to him during the short period afforded by the rules for filing his defence”.

[10]It is said the Defendant has failed to plead a positive case when it ought to be able to. The Defendant’s Statements of Case are described as “bare defences” and “fail to achieve (or even attempt to meet) the basic requirements of a compliant pleading”. The Claimants in consequence, they submit, do not know the case they have to meet. The Amended Defences prevent a “fair and efficient progress to trial within the overriding objective. In particular, they make it impossible to know what expert evidence is reasonably required”. Although I do not entirely follow the following remark as being the purpose of a Statement of Case, Mr Roy submits that the Amended Defences “do not act as a reality check” for the Defendants and its lawyers.

[11]The Defendant, by way of detailed skeleton argument from Mr Trigger, submits that these very broad challenges simplify a more complex and nuanced predicament in which the Defendant has been placed because of the very generality, and in parts inadequacy, of the Claimants’ own Statements of Case. Hence, in short, it is not for the Claimants to complain if, in consequence to their pleadings, the Defendant is able to respond in only qualified terms in aspects of its response.

[12]Having carefully read the respective pleadings and considered the parties’ submissions, I am satisfied that the Defendants submissions and analysis is the more correct and realistic description. Accordingly, I adopt the Defendant’s sequential analysis of the challenged paragraphs within the Amended Defences as follows.

[13]Paragraph 5 (in both claims)a. Paragraph 3 in each Particulars of Claim alleges that the Claimant was required to assist in a “highly traumatic ambulance emergency transfer” of baby Margot. “The need for the emergency transfer was a result of the Defendant’s negligence”.

b. Paragraph 5 of each Amended Defence admits that the Claimant was involved in an ambulance transfer of Baby Margot. Each expressly denies that the need for the transfer being an emergency transfer “was as a result of the Defendant’s negligence whether as alleged or at all”. Paragraph 5 alleges that the need for emergency transfer “arose as a result of the poor condition at birth of Baby Margot”.

c. I do not follow the basis for seeking to strike out the entirety of Paragraph 5, as would include the admission featured in each first sentence. The inclusion of this as part of each Application is unfortunate and distracting. The Claimant’s approach has required both Defendant and the court to infer that the true strike-out concerns the denial as to the cause or need for the emergency transfer arising from the Defendant’s negligence.

d. The pleading provides an express reason for the denial, namely that as matter of fact the cause of the emergency transfer was due to the condition of the baby at birth. I agree with the Defendant that this is not abusive or in breach of any Court rule but is instead factually accurate; at least in itself.

e. The Defendant is entirely correct to comment that the purpose of each Paragraph 5 is in response to each Paragraph 3 in the Amended Particulars of Claim and cannot be expected to go further. This is hardly a subjective pleading interpretation point but a matter of reading. Very simply, the end of each sentence of Paragraph 5 explains by ending how “paragraph 3 of the Amended Particulars of Claim is denied”.

f. It becomes entirely clear from later parts of both Amended Particulars of Claims and Amended Defences that the issue as to whether the transfer was caused by the clinical negligence is dealt with substantively at paragraphs 17 and 24 of the respective Amended Defences.

g. The application to strike out each Paragraph 5 in the Amended Defences does not engage any reasoned basis for a strike-out. To this extent, that part of the Claimant’s Application is dismissed.

[14]Paragraph 13: Prudence onlya. Paragraph 13 puts the Claimant to proof in respect of paragraphs 15 to 17 in the Amended Particulars of Claim, save that it is admitted (in the first part of the paragraph) that this was an emergency transfer owing to the condition of Baby Margot.

b. I observe again that the basis for seeking to strike out the entirety of this paragraph, as would include the admission featured in the first sentence, is not explained or justified by the Claimants. So the inclusion of this proposition seems unfortunate and distracting.

c. Paragraphs 15 to 17 in the Amended Particulars of Claim adopt and incorporate quite specific evidential descriptors about the journey that would not be within the knowledge of the Defendant. The Defendant cannot know whether this was “a frightening high-speed journey” or that the circumstances were “horrifying”. Accordingly, it ought to come as no surprise to any objective reader that the Defendant requires each Claimant to prove factual matters known only to her. Not least because it surely falls for someone engaged in professional health care, that inevitably requires medical attention to be applied in situations of pressure, what was distinct about the ambulance journey to other like situations.

d. The Defendant’s response is not an abuse of process but, as I accept the Defendant’s submission, the only pleading the Defendant can advance.

e. The application to strike out Paragraph 13 in the Amended Defence of Prudence does not engage any reasoned basis for a strike-out. To this extent, that part of the Claimant’s Application is dismissed.

[15]Paragraph 18 : Charlton onlya. Paragraphs 14 to 18 in the Amended Particulars of Claim aver the circumstances in which the Claimant was called to the birthing room, the poor condition of Baby Margot, attempts to resuscitate by respectively Ms Prudence and the Claimant and the transfer by emergency ambulance.

b. Paragraph 18 in the Amended Defence admits such allegations “as…are consistent with the contemporaneous medical records for Baby Margot and her mother” but otherwise puts the Claimant to proof. Although a school of thought might consider the final sentence unnecessary, Paragraph 18 states that the Defendant will “as required” refer to the entire clinical records at trial.

c. I note the Claimant has not applied to strike out paragraph 12 in the case of Prudence. Paragraph 12 of Prudence would appear to be the mirror paragraph of paragraph 18 in Charlton for which an application is made. It is unclear why in Charlton paragraph 18 is said to be an abuse that should be struck out but the same paragraph in Prudence is not objected to.

d. The point being here that, as I find, there is nothing obvious or irregular about Paragraph 18 in Charlton that amounts to an abuse such as engages any reasoned basis for a strike-out. It is entirely reasonable and indeed common for a party to admit to the generality of an event but rely upon the substance and detail of contemporaneous documentation. The absence of any like challenge in Prudence supports this conclusion.

e. This part of the Claimant’s Application is dismissed.

[16]Paragraph 16 Prudence/23 Charltona. Paragraph 20 in the Amended Particulars of Claim in Prudence and Paragraph 25 in the Amended Particulars of Claim in Charlton are in like terms. They allege fourteen specific particulars of negligence in the pre-birth, delivery and post-birth care of Baby Margot and her mother.

b. Paragraph 16 in the Amended Defence in Prudence and Paragraph 23 in the Amended Defence in Charlton are also in like terms. They comprise a detailed and entirely typical sequence of forensic admissions, non-admissions and denials in response to each of the particulars. The sequence comprises 26 specific paragraphs. The Claimants have observed and the Defendant accepts that some of the denials and non-admissions have been admitted in the Defendant’s replies to respective Claimant’s Notice to Admit Facts.

c. Given, however, that the Defendant has made entirely and unequivocally clear that it does not seek to resile from the Notice to Admit Facts replies, the basis for striking out the now resiled from parts of the Defences is not obvious as necessary; at least if the proposal is on the basis that those parts as they remain would now constitute an abuse. In simple and practical litigation terms, it would and should be entirely open to the parties to agree either that the Claimants take no issue with the “non-resiled but accepted as incorrect” sub-paragraphs or, if they would prefer not to see such sub-paragraphs remain, then they should be further amended. Either way, to pursue by Application a strike-out for reasons of this inconsistency alone would seem disproportionate and unnecessary.

d. The incidence of discrepancy aside, the proposed strike out of these paragraphs again raises the perhaps surprising proposition that even the Defendant’s admissions should be struck out. Again, I express the view and conclusion that I do not follow this and find it both unhelpful and distracting.

e. Distilling the broad scope of this part of the Claimant’s strike-out Application further, one is left with an engaging question as to the extent to which the Defendant can be expected to plead to particulars of alleged negligence that, as is highly pertinent to note, are not particulars of negligence directly relied upon by each Claimant as directly causative of their personal loss as led to a scenario arising from which, on each Claimant's case, there independently arose a breach of duty(or duties) of care owed by the Defendant to each of them.

f. This takes one to the centre of the dispute between the parties on the Application.

g. Mr Trigger places some emphasis, in my view with relevance, on the continuing absence of comprehensive particulars of negligence or duty relied upon by each Claimant as breaches of such identified duties of care (or otherwise) directly owed to them. The Defendant’s complaint, again in my view with justification, is that particulars of negligence and breach of duty as owed to Baby Margot and her mother are not obviously or implicitly portable as particulars of negligence or breach of duty to be relied upon by each of the Claimants. If one or more of the particulars of negligence and breach of duty as owed to Baby Margot and her mother are (or are capable of) being so directly relied upon, then this can only become clear once the primary duties relied upon as directly owed to each Claimant have been sufficiently and comprehensively pleaded. It follows from that analysis that the requirement and expectation for the Defendant to go on to plead a positive case to each and every particular of negligence as owed to Baby Margot and her mother does not arise, or at least has not yet because of the opacity of the Claimants’ pleadings. In other words, the potentially simplistic argument that the respective duties of care to Baby Margot, her mother and the Claimants are either the same or sufficiently contiguous such that providing there has been admitted negligence in respect of one or both third parties (Baby Margot and her mother), and because the Claimants became involved in the factual scenario as created, the Claimants can appropriately adopt and rely upon the same particulars of negligence.

h. This point, the Defendant submits, crucially over-arches its concession that certain consequential findings may well indeed be found to arise from its admissions of clinical negligence. I therefore am not persuaded by Mr Roy’s submission that because Mr Trigger has conceded (Paragraphs 58 and 59 in his skeleton argument) that consequential findings may well arise at trial following a fuller analysis of both pleadings and evidence, this means that judgment or strike out is appropriate at this stage. This submission, with respect, fails to have sufficient regard to the Defendant’s carefully presented position.

i. The circumstances in which a party can be said to be unable to admit or deny a matter are discussed in SPI.

j. Significantly, the discussion in SPI principally contemplates that the ability of a defendant to admit or deny an allegation in a context where the pleaded cause of action engages duties of care or obligation owed directly to the claimant, not third parties. The Defendant submits that the Defendant is not in such a clear position in principle as the discussion in SPI engages.

k. For example, sub-paragraph (g) in each of the Amended Defence paragraphs does not admit that there was a failure to obtain informed consent for delivery at the Unit “whether as alleged or at all”. The Defendant submits that it cannot know what information the mother knew, what matters were important in her mind to ensure her consent was informed when she made decisions or what information she herself had or needed to ensure she could give Informed Consent. The Defendant does not admit or deny whether the mother gave informed consent because it does not know.

l. A similar and subtle point, in my judgment entirely reasonably reserved by the Defendant, is that whilst the Defendant admits at sub-paragraph (h) that there is no documented discussion with the mother about the risks and benefits of place of birth, the Defendant cannot admit the mother had not given informed consent for the location of the birth. In terms, then, that the omission of documentation discussion is not obviously probative of a lack of consent in fact. Sub-paragraph (j) does not admit that obstetric opinion was reasonably required to enable the mother to make an informed choice as to birth location and, at sub-paragraph (k), each Claimant is put to proof that obstetric referral would have altered the management and location of birth.

m. Noting the principles expressed in SPI but as much in terms of general pleading practice, I accept the Defendant’s submissions that there are numerous aspects of the particulars the Defendant cannot be expected to know and hence either admit or deny.

n. The Defendant challenges the Claimants’ submission that a counter-factual case ought to feature in each Defence (and, hence, because it does not, then their Applications are made out) even if it concerns something that did not in fact occur.

o. I was taken, for example, to sub-paragraph (e) in each of the relevant Defences. This sub-paragraph responds to the Claimant’s allegations as to what would have occurred had there been a growth scan; in particular that there would then have been a senior obstetric review. As the Defendant points out, however, there was in fact no growth scan and therefore it is not, and cannot be, known that this would have occurred. The Defendant concedes it might have done and it may well be the Claimant may be able ultimately to prove on evidence that, on the balance of probabilities it would have done.

p. Nonetheless, the Defendant submits that it is its prerogative to “not admit” something would have occurred that did not in fact occur and only might have done hypothetically. Hence, the critical distinction between what may be concluded only at trial on evidence as to what was more likely to have occurred and expecting a party in its Statement of Case to elect either to agree with the entire hypothetical relied upon by an opposing party or instead offering a positive counter-assertion but from a different hypothetical starting point.

q. Of course if the Defendant wishes positively to argue that a review would not have occurred then of course it will be required expressly to plead a denial and set out that alternative account. That is not however the Defendants case. In the absence of seeking to rely upon an express counter-assertion, or in a position to admit, a party is entitled to oblige the opposing party to prove the same.

r. Plainly, a party that does not so admit in circumstances when it is or reasonably ought to be in a position to admit is vulnerable to an application of this kind. Carefully considering the pleadings as I have, however, I do not accept this case falls into the latter category. These are not matters “capable of rapid ascertainment from documents or other sources of information at his ready disposal” per SPI.

s. The inability to positively plead to counter factual assertions also feature in sub-paragraphs f, k, p, q,r and v. I accept the Defendant’s submissions here likewise.

[17]Paragraph 17 Prudence / 24 Charltona. These plead to allegations that Baby Margot would have been delivered by the obstetric team at the Hospital, there would have been “no Baby Margot incident or in any event no need for the post-natal emergency transfer”, no need for either claimant to assist with any such incident or any emergency transfer from the unit. There is a further allegation that these events would have occurred even had the Defendant “belatedly recognise(d) the mother’s autonomy as a patient and responded to her second transfer request” rather than (as is alleged in Paragraph 20(11) her third request).

b. The Defendant does not admit that, but for the admitted breaches, Baby Margot would have been delivered by the obstetric team, that there would have been no “Baby Margot incident”, any need for each claimant to assist with any such incident or emergency transfer. Crucially, both Amended Defences go on to plead very specific denials by way of a further three sub-paragraphs that (to paraphrase) the events relied upon fall within the scope of duty of care owed to each claimant or otherwise that the claimant’s particular losses and injury were foreseeable in these circumstances.

c. It might be argued on a strict view that the three sub-paragraphs denying any legal liability arose are not directly in response to the relevant two paragraphs in each Amended Particulars of Claim. That said, given the Defendant’s fundamental objection to the Claimant’s lack of particularised pleading linking particulars of negligence in the context of Baby Margot and her mother to sufficiently identified duties of care and their breach owed to each claimant, I can entirely follow why these three sub-paragraphs were added in qualification.

d. Discussion of such distinctions ought not be necessary had the Claimant identified precisely what within these paragraphs ought to be struck out. Instead, the Claimant seeks to strike out each entire paragraph, leading to the unsustainable and unmeritorious proposition that clear denials of legal liability in response to parts of the claim that are not the subject of the Applications ought nonetheless to be struck out. As late as the skeleton argument prepared by Mr Trigger, the Defendant was therefore obliged to “reserve its position in relation to those specific sections pending clarification of the basis upon which it is said they fall to be struck out”.

e. The Claimants did not offer a qualified version of their strike out applications in respect of this irregularity. In the absence of such a request, I see no reason to rewrite the Claimants’ applications as they apply to strike out these paragraphs even if, for reasons that follow, it may be other aspects of their applications make good the Claimant’s election to pursue entire strike out.

[18]Paragraphs 18 Prudence / 25 Charltona. To reiterate (necessarily so owing to the diverse issues raised), both Amended Particulars of Claim seek to endorse a proposed apparently obvious association between their claims and admitted negligence in respect of Baby Margot and her mother. To this end, the Amended Particulars of Claim heavily rely upon collateral evidence about the “Baby Margot incident” even if eliding central questions of duty and breach in respect of each claimant. Accordingly, each Claimant relies upon the entire HSIB report, the Defendants’ Chief Executive’s public statement in response, the Defendant’s admissions in protocol correspondence, a BBC Panorama documentary broadcast in January 2024 and the Defendant’s public response to that.

b. The adoption and incorporation of extrinsic evidence or documentation into a Statement of Case has always been of subjective merit. In appropriate cases, it serves to illustrate where more amplified support and explanation can be found in respect of an allegation that is nonetheless self-standing and self-explanatory in itself within the Statement of Case. The opposite is where a party seeks to incorporate extrinsic evidence in substitution of allegations that ought to be expressly pleaded. In many instances, the approach adopts something of a middle-ground although, as is indeed the case here, this can lead to argument whether the express pleaded narrative is sufficient.

c. The Defendant in each Amended Defence notes the Claimant’s reliance upon the extrinsic documentation but does not admit “the reasonableness or otherwise of that reliance”. Whether a party is acting reasonably or not in a Statement of Case is perhaps more an ultimate question on costs but, as I read it, the Defendant’s intended record here is that it does not agree with the Claimant’s implied assumption that the extrinsic material is self-standing evidence of negligence in the Claimants’ claims.

d. More specifically, the Defendant expressly denies that the HSIB report establishes a negligent failure to exercise reasonable care by the Defendant as distinct from being a safety led investigation into best practice. Further, the Defendant accepts that admissions of legal liability were made to Baby Margot and her mother but pleads that it is unable to follow how such admissions are relevant to the Claimant’s claims until they each more fully particularise the duties owed to them and how they were breached.

e. The Defendant comments that the BBC panorama programme, if relevant, must be considered at trial for its full context and meaning.

f. Given these paragraphs are in response to the incorporation of extrinsic material that is bound to feature a very wide range of material of which not all may be obviously relevant, it is difficult to follow the Claimants’ broad proposition that the Defendants’ response to such material ought entirely to be struck out. Indeed, I am satisfied that in respect of the HSIB report the Defendant sets out a correct legal and factual analysis of its status.

g. By way of Mr Trigger’s skeleton argument, the Defendant describes as misconceived the application to strike out of these paragraphs but reserves its position in the event of the Claimant identifying a different basis at the hearing.

h. No such different basis was identified by the Claimant at the hearing, Mr Roy instead confirmed at the outset that he maintained his strike-out application.

i. As I have reasoned in respect of previous paragraphs, I see no reason to rewrite the Claimants’ applications to enable them to strike out these paragraphs even if, for reasons that follow, it may be other aspects of their applications make good the Claimant’s election to pursue entire strike out.

[19]Summary of the strike out Applications I do not accept the Claimants’ submission that the paragraphs sought to be struck out fall into the classification expressed in SPI as “stonewalling …full of indiscriminate non-admissions”, neither with reference to PD 3A 1.5(1) do they “consist(s) of a bare denial or otherwise set(s) out no coherent statement of facts”. The vital starting point is that the Defences seek to defend claims that arguably still call for more precise presentation and clarification as to the nature and scope of the duties relevant to the Claimants personally rather than third parties. Questions as to what the Defendant can admit or ought instead to be able to deny (if so elected) are far from clear cut. If a path was to be found utilising CPR 3.4, then it needed more than the broad proposition that multi-factorial and composite paragraphs responding to composite allegations should entirely be struck out. Having read carefully the respective allegations and defences in each of the above paragraphs, I am satisfied that the strike-out aspect of both Applications should be dismissed. At least in the context of CPR 3.4, I conclude that any arguable absence of a precise counter-factual or legal defence can fairly be interpreted to have arisen because of:(a) an imbalance in the Amended Particulars between reliance upon very specific particulars of clinical negligence and the absence of clarity as to the independent duties owed to each Claimant and their breach;

(b) the allegations fall outside the Defendants knowledge as understood in SPI or;

[20]Summary judgmenta. In Prudence, the Claimant seeks summary judgment in respect of Paragraphs 20 and 21 in the Amended Particulars of Claim.

b. Paragraph 20 comprises the particulars of negligence in respect of the mother and baby’s birth, in respect of its various stages before during and after.

c. The amending Paragraph 20A adds that but for such alleged negligence, Baby Margot would have been delivered by the obstetric team at “the hospital”. This proposition does not sit entirely well with the balance of Paragraph 20A which alleges that but for the negligence there would have been no “Baby Margot incident” at all. I note “the Baby Margot incident” is not expressly defined but, presented as a sub-heading to Paragraph 9, is presumably intended to reflect the entire sequence of events from the time the midwife Hazel Williams came to assist Baby Margot’s mother on 14 May 2020 through to the unfortunate death of Baby Margot on or around 17 May 2020 and so includes the emergency transfer to Gloucester. This interpretation is consistent with the phrase “or in any event no need for the post-natal emergency transfer”.

d. Hence Paragraph 20A(c) “There would thus have been no need for the Claimant to assist with any such incident or any emergency transfer from the unit”.

e. Paragraph 20B avers that the transfer should at its least been in consequence to the mother’s request for such a transfer.

f. Paragraph 21 pleads evidence in support of the allegation that the Defendant was negligent in the sequence of events before and following the birth of Margot.

g. In Charlton, the Claimant seeks summary judgment in respect of Paragraphs 25 to 26 in the Amended Particulars of Claim. These paragraphs duplicate the paragraphs discussed above in Prudence.

[21]In an 11-page witness statement dated 21 August 2024, as annexes some 235 pages of documentation, the Claimant’s solicitor Mr David Marshall supports each Application upon what he describes as being the “clinical negligence issue”. At Paragraph 3, he defines the clinical negligence issue as being “whether the Claimants being required to assist in a highly traumatic ambulance emergency transfer of a newborn baby known as Baby Margot was a result of the Defendant’s clinical negligence”. Mr Marshall describes this as “self-contained issue”. He accepts (Paragraph 5) that many of the points relied upon are more submissions than matters of fact. He comments that he seeks to avoid commenting on the contents of the documents annexed to his statement “any more than is necessary to set out relevant facts and the basis of this application”. The statement summarises the allegations in the Statements of Case and provides a procedural history commencing pre-issue. In respect of protocol stages, Mr Marshall concedes that the Defendant has disputed liability of the Claimant’s claims but had never disputed allegations of negligence in respect of “the Baby Margot incident”. He comments that despite the absence of any such admission, the understanding of the Claimants and their firm was that it was not in issue because:(i) No denial appeared in the Defendant’s protocol correspondence in reply;

(ii) The Defendant had provided no disclosure “in respect of the clinical negligence issue” as, he maintains, should have been expected if so relied upon;

(iii) They could not “imagine that the clinical negligence issue could sensibly be disputed in the light” of the “damning” contents of the November 2020 HSIB report. He adds that their inference as to the probative effect of the HSIB report was “not least because the HSIB has been often criticised for pulling its punches and failing to condemn negligence practice”. Mr Marshall notes (and, I comment, appropriately accepts) the distinction that whilst the Defendant in its replies to Notices to Admit had declined to admit “secondary facts on which the Claimant’s case flowed from these i.e. that but for admitted failings there would have been no need for the emergency transfer. That element of liability therefore remained disputed”.

[22]Whilst noting and accepting the Defendant’s pleaded position in the claims, Mr Marshall maintains that this is “at odds” with the Defendant’s position outside the litigation. He repeats and refers to the Defendant’s public statement in response to a BBC panorama programme in January 2024 following an investigation into the Cheltenham unit. Likewise, he relies upon letters of admission in the scope of the mother’s claim. He describes the Amended Defences [“AD’s”] as being “worse and less coherent” than the original defences, hence the Claimants’ Applications.

[23]In the context of summary judgment, Mr Marshall submits that the respective Particulars of Claim and the HSIB report “incorporated therein constitute credible (we would say compelling) evidence of causal negligence which has not been contradicted by the Defendant”. Indeed, on the basis of the HSIB report “it would be impossible for the Defendant to do so”. Put another way, the acceptance of those findings leaves the ADs “with no real prospect of success”.

[24]Perhaps mindful of the probability that the court on such an Application would apply a more careful scrutiny of the causal relationship between the alleged clinical negligence events and the circumstances establishing how the Claimants each came to be in the ambulance, at Paragraph 47 Mr Marshall cites two allegations where “the Claimant’s case….is overwhelming”. I assume from the wording of the examples as follow, by “the Claimant’s case” Mr Marshall means the issue as whether an emergency ambulance transfer was required sooner:a. Because of the feature of blood-stained liquor reported at 03.40 and documented at 03.50, “the counterfactual transfer would have been long before the need for an emergency transfer involving the Claimant’s arose”;

b. The mother had requested at c11.00 and c.12.00 to be transferred to the hospital and so, had she have been transferred, then “the evidence is clear that at this stage this would not have been an emergency transfer”. He records how an ambulance was not called until 13.08 but not because of a perceived emergency, arrived at 13.25 and was (relying upon a factual note in the HSIB report) was not treated as an emergency until 13.20.

[25]Mr Roy placed much emphasis upon the absence of any evidence having been produced by the Defendant in response to the Applications, this being its evidential burden following the Claimants having produced credible evidence in support. The Claimants’ evidence he describes as not simply credible but “compelling, evidence of causal negligence which has not been contradicted by the Defendant”. As a result, he describes, of the Amended Defences accepting the HSIB findings, it would he submits be “impossible” for the Defendant to contradict them and accordingly the Defendant is left with no real prospect of success. Thus, even if as a matter of pleading analysis the Amended Defences withstand the strike out challenge, there should be summary judgment. There is no real prospect of further evidence “giving rise to a realistic defence” and no compelling reason “to proceed to trial”.

[26]The Claimants’ draft Order proposes that “Judgment be entered for the Claimant pursuant to CPR 24.2 for its claim found in paragraphs 20 - 21 of the Amended Particulars of Claim dated 17 April 2024”. Mr Roy confirmed at the commencement of the hearing that he maintained and supported the draft Order that annexed each Application and did not seek a revised narrative form for any judgment so established. I was directed to various authorities as apparently providing direct support for the summary judgment applications in this case, rather than reminding the court of the principles of summary judgment.

[27]The Defendant draws to not just the breadth of the propositions in the Applications as drafted but also how Mr Marshall at Paragraph 17 seeks to widen the scope further to invite a finding by way of summary judgment that “as a result of the Defendants clinical negligence [the Claimants] were exposed to risk of physical injury during the transfer (i.e. the clinical negligence issue)”.

[28]Mr Roy conceded during the hearing that Paragraph 17 did indeed take matters much further and confirmed it was no longer relied upon.

[29]Paraphrased, the Defendant’s case in each Defence is as follows. The Defendant:a. Does not admit that the Claimant did not give consent to the birth location;

b. Does not admit that any failure to seek obstetric opinion to discuss the place of birth constituted a breach of duty to the mother, that such opinion was necessary in respect of the birth location or that this would have altered the management and location of the birth;

c. Admits that obstetric opinion should have been obtained when blood stained liquor was recorded and this feature should have expedited the birth;

d. Does not admit that an expedited birth would have avoided it being a traumatic birth and/or the resulting need for an emergency ambulance;

e. Does not admit that a failure to increase the frequency of intermittent auscultation in the second stage of labour or failure to monitor the mother’s fluid intake led to any alteration in the management of the birth or its location;

f. Does not admit that any requests by the mother for a transfer (none being admitted) would have led to any alteration in the management of the birth or its location;

g. Does not admit that “any risk assessment which it is alleged ought reasonably to have been undertaken” led to any alteration in the management of the birth or its location;

h. Does not admit that alleged failure to use the emergency alert or failure “to take a holistic view as required” led to any alteration in the management of the birth or its location;

i. Does not admit that the broad sequence of events pleaded as the “Baby Margot incident” would not have occurred but for the breaches of duty the Defendant admits or that without such admissions there would have been no need for each Claimant either to assist at all or in an emergency transfer.

[30]Mr Trigger, by way of both skeleton argument and oral submission, placed careful emphasis upon the distinction between what may well be an inevitable finding of clinical negligence in respect of Baby Margot and her mother and the imprecise nature of the claims in hand. The Defendant has admitted the clinical negligence in the context of the former, either wholly or substantively. Quite simply, the Defendant does not seek to argue there was no breach of the duty of care owed to mother and baby. Neither, in that context, does the Defendant seek to advance a positive case that the emergency transfer would not have occurred. The Claimants already have these concessions by way of the Amended Defences and the Defendant’s replies to the Notices to Admit.

[31]Beyond these concessions, however, the causal relevance of the admitted negligence, the duty or duties on which the Claimants seem to rely (in varying presentations) and the breaches of such duties as owed to the Claimants (not mother and baby) the Defendant submits is far from suitable for consideration and disposal by way of summary judgment. Foreseeability of harm plainly draws upon the nature and scope of the duty or duties relied upon. Hence why, in cases such as Cullin, it is essential to analyse and establish the precise constituent facts within the generality of the incident in which a claimant alleges they sustained loss as a primary victim. So, the constituent facts in the context of the duty or duties of care as alleged as owed to the particular claimant in question, rather than anyone or everyone who was involved in the incident.

[32]Such elements remain unclear, the Defendant submits, and so present as a compelling reason why the case should proceed to trial. They explain why there is no witness evidence from the Defendants in response.

[33]I do not find Mr Marshall’s commentary quite as self-contained and self-proving as perhaps contemplated.a. As had to be conceded by Mr Roy during the hearing, the Paragraph 3 so called self-contained “clinical negligence issue” is unacceptably broad in a claim where questions of clinical negligence are relied upon by each claimant not in support of claims for loss directly caused by such acts or omissions but instead as gave rise to a factual scenario in which there were then (apparently but not clearly pleaded) separate acts or omissions as were directly owed to the Claimants.

b. Through some exploration and exchange in the course of the hearing, Mr Roy came to concede that the more realistic and precise nexus the Claimants best could rely upon was if (and sufficiently in the context of summary judgment) the court is persuaded that at least one or more of the allegations of clinical negligence in respect of Baby Margot and her mother led to the need for the emergency ambulance transfer in question i.e. that in which the Claimants were involved. Hence, irrespective of the interpolation of analysis whether the transfer did or did not give rise to breaches owed to the Claimants, the court can be satisfied that the emergency transfer arose from at least some (in the sense of material) negligence by the Defendant.

c. It is clear from the Defendant’s Protocol correspondence that it has declined to offer an admission that negligence admitted in the respect of the care of Baby Margot and her mother is directly supportive of the Claimants’ claims. I do not find this response unexpected, such that it supports the Applications. Clear questions immediately arise from the Claimants’ presentation of events and surely would have done at the protocol stage of correspondence.

[34]The required resolution of these questions present as clear fundamental pre-requisites to then approaching the more legally nuanced questions of the duty the Claimants seek to rely upon:(i) Was an ambulance transfer justified sooner than as eventually occurred;

(ii) If so, would it always have been an emergency transfer;

(iii) If not at what point in time did the distinction arise between the requirement for a transfer and the necessity for an emergency transfer;

(iv) How do the Defendant’s admitted acts and omissions of negligence interplay with the question whether an ambulance transfer was inevitable in any event, even if it possibly would not (at an earlier point) have been an emergency transfer;

(v) How do the Defendant’s admitted acts and omissions of negligence interplay with questions whether an ambulance transfer was inevitable in any event and would have been an emergency transfer.

[35]I do not accept that Defendant’s reliance upon its pleaded position in response to the summary judgment Applications is, as submitted, incoherent and having no real prospect of success. To the contrary, my conclusion is that only one factual issue reliably emerges and as can be concluded on an interim basis: that there would have been an ambulance transfer to the Hospital at a much earlier stage following the mother’s admission.

[36]The Defendant’s solicitors’ letter dated 13 April 2023, in response to the Claimants’ letters of claim, agreed that the Unit was suitable for low risk births only. “Any other births would be dealt with at the hospital”.

[37]The Claimant relies upon the Gloucestershire Hospitals Trust Guideline document entitled “Midwife-Led Care (Homebirth and Birth Unit Pathways) A1061”, as appears to have been issued in 2014 and last reviewed in October 2019. Paragraph 11 is headed “Deviations during the intrapartum period”. Paragraph 11.9 is headed “Unexplained blood loss per vagina” and 11.9.2 reads:

“If there is unexplained blood loss per vagina, the woman should be immediately transferred to the Obstetric Unit, referred for Consultant care. Be aware of blood stained liquor, ensure a show is a mucoid show and not blood loss……….Documentation of your findings must be clear – is it blood loss or mucoid show.”

[38]The HSIB report () records that the mother had telephoned the maternity triage line at 22.50 at 41+1 weeks reporting that she had sustained a “pinky, brown mucous loss”. Following admission at 00.05, at 03.50 “blood stained liquor ++” was documented as it was also documented at 05.50:. discusses pressures upon the unit staff during those early hours that night but confirms the HSIB investigation team “learned from staff that usual practice is to escalate any blood-stained liquor to the obstetric team”. The investigation could find no evidence of a structured handover to incoming staff between 07.25 and 07.45. Had a full handover taken place, this “would have included a summary of events overnight and would have likely identified the documented blood-stained liquor” []. iterates that the local guidance as to the significance of “any vaginal blood loss other than a show” and how the recommendation for obstetric referral was “in line with national guidance (NICE 2015)”.

[39]remarks that the HSIB clinical panel considers that “in the light of the blood stained liquor, a referral to the obstetric team was indicated. The HSIB clinical panel considers it would have been appropriate to transfer the mother to obstetric led care and for continuous CTG monitoring of the Baby’s wellbeing when blood stained liquor was observed”.

[40]There is no evidential comment from the Defendant in response to this particular very clearly stated conclusions in the HSIB report. Despite the very broad and at times unspecific way in which the protocol and then Applications have been presented, the essential question whether an ambulance transfer should have taken place earlier still, I am satisfied, remained pertinent to the Defendant’s assessment of the claims.

[41]It seems unlikely that any expert opinion could be obtained to gainsay the above guidelines as to the need for obstetric referral in these particular circumstances; in other words, that despite both local and NICE guidance, such referral was not called for. If the Defendant contends that despite this (as I find it) reasonable inference from a legal viewpoint , obstetric referral was not called for at an earlier stage then I would expect(i) this to have been expressly pleaded in the Defences and

(ii) for some evidence (or at least reasoned explanation as to the likelihood of such evidence) to be produced in response to the Application.

[42]From the approach of summary judgment, therefore, I am satisfied that the transfer to the Hospital for obstetric referral and monitoring should have been initiated shortly following the first documentation of “blood stained liquor ++” at 03.50. Baby Margot would therefore have been delivered either by the obstetric team or under their supervision and care.

[43]On the basis of the materials produced, and in the absence of any argument from the Defendant, there seems no basis for assuming delay could have been justified until the second documentation at 05.50.

[44]Whether such earlier transfer would have been an emergency transfer, however, is not clear from the materials provided. Accordingly, there seems a possibility that such earlier transfer might not have been treated as an emergency. It follows that neither am I assisted in resolving the logical consequential questions(i) when an emergency transfer might first have become required if it was not from 03.50; and

(ii) whether an emergency transfer would have always independently been required owing to non-negligently caused deteriorating or problematic conditions in Baby Margot’s birth or at least because of one or more of the Defendant’s admitted acts or omissions in negligence.

[45]These latter issues are questions for expert evidence. The broad manner and scope of the Claimants’ Applications are quite insufficient as a substitute.

[46]However, whilst not expressing any concluded view on the point, I anticipate that any attempt at this pre-expert evidence stage of the proceedings to try to answer points (i) and (ii) at Paragraph 44 above could offend several of the principles summarised by Lewison LJ Easyair Ltd (t/a Openair) v Opal Telecom Ltd

[2009] EWHC 339 (Ch)

at [15]. There would be a risk of mini-trial and the court would be bound to have to take into account the evidence that might reasonably be expected to be available at trial. There might still be reasonable grounds for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case. The interrelationship between the admitted clinical negligence in the context of the mother and baby’s treatment, questions as to the timing and need(s) for emergency ambulance transfer, the extent to which such needs required some or all of the Claimant’s engagement whilst in the ambulance strike me as extensive and potentially sophisticated.

[47]Returning to the issues as presented in the Applications, save for the need for an ambulance transfer to Hospital sometime after 03.50, I am satisfied that all other issues as challenged in the Amended Defences are entirely suitable to proceed to trial.