MOORE v WORCESTERSHIRE NHS TRUST [2015] EWHC 1209 (QB)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
[2015] EWHC 1209 (QB)Case No Case No: QB/2014/0522Venue Royal Courts of Justice, Strand, London WC2A 2LL
Between
MOOREClaimantWORCESTERSHIRE NHS TRUSTDefendant
Before
His Honour Judge Bidder101 Finsbury Pavement London EC2A 1ERTel No: 020 7421 6131 Fax No: 020 7421 6134Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com(Official Shorthand Writers to the Court)Date 12 February 2015

JUDGE BIDDER QC :

[1]This is an appeal against the order of Master Cook handed down on 1 August 2014 allowing the defendant to withdraw pre-action admissions and setting aside a default judgment which was previously entered by the learned master in the claimant's favour and permitting the claimant to file a defence, a draft of which is in the appeal bundle.[2]The claimant's claim is a clinical negligence claim arising from alleged delays or failures in the diagnosis and treatment in two hospitals: the Kidderminster Hospital on 28 October 2009 and the Worcester Royal Hospital on 1 November 2009.[3]The claimant at those times was 7 years old. The claimant is now 12 years old, nearly 13, and had been seen by an on-call GP prior to the attendance at Kidderminster on 28 October complaining of earache. Antibiotics were prescribed, but she was unable to tolerate those antibiotics. She became increasingly ill.[4]On 28 October 2009 her mother took her to the Kidderminster Hospital where she was seen by an emergency nurse practitioner (or ENP as it is shortened). A working diagnosis was made at that stage at a time when there were clearly concerns about an epidemic of swine flu. She was advised to go to her GP who gave her a prescription for Tamiflu. She became more and more poorly and on 1 November 2009 she was admitted to the Worcester Royal Hospital and there a doctor made a working diagnosis of a viral urinary tract infection and she was discharged home.[5]She however became increasingly unwell and by 3 November the symptoms of her illness included that her left leg was very tender and when she went to the Worcester Royal Hospital again secondary arthritis in the hip was diagnosed. In fact, as it now seems to be probable, a rare infection called fusobacterium necrophorum which had initially been present in her throat had spread through her blood to other sites of her body including the left hip. Taking it reasonably shortly it caused severe damage there, weakening and partly destroying the bone and leading ultimately to a fracture in the hip, although that came after her discharge from hospital. It was some time afterwards she complained of very serious pain, came back and it was found that the already damaged hip had actually fractured.[6]She has already been subject to substantial surgery and she will undoubtedly at some time in the course of her teens need a replacement hip and if that operation is successful, and it is a difficult operation, she will probably need a number of replacement hips during the course of her lifetime, and there are other problems. One of the many obvious problems is a shortening of the injured leg and wasting of that leg which can be seen in the photographs.[7]Her case was set out both in a letter of claim of 25 June 2012 - the letter, I should say, was entirely compliant with the pre-action protocol that can be found at page 118 of the appeal bundle - and also in her Particulars of Claim of 18 December 2013 which is at page 100 to 117 in the appeal bundle.[8]Her case is in brief that on 28 October she should have been examined by a doctor at the Kidderminster Hospital and then referred to the Worcester Royal Hospital for treatment. She should have been more fully investigated with blood tests and CT scanning done, which tests would have assessed her suffering from left sided leg pain and septic arthritis should have been promptly treated. As to 1 November 2009, again it is suggested both the examination and treatment was inadequate, leg pain should have been recognised and properly treated with blood tests and a scan, and had the examination and treatment on either day been adequate, it is her case that she would have avoided all permanent injury.[9]The claimant, through her solicitors, acted in accordance with the pre-action protocol. They sent that letter of claim on 25 June 2012. The defendant trust acting through the NHS litigation authority sought advice from a consultant paediatrician, Dr David Ogilvie. His short report (and that is what it is called) of 1 October 2012 is at page 245 in the appeal bundle. It is very oddly laid out. Indeed, arguably, it is misleadingly laid out.[10]At page 2 of that report he sets out the allegations of negligence made by the claimant without clearly indicating, whether by formatting or otherwise, that he is simply repeating those allegations verbatim. At page 3 he again sets out at length the particulars of negligence in relation to the treatment on 1 November 2009. In what is correctly described as a short report, those allegations actually take up the bulk of that report.[11]His opinion however is given at page 5 in very short form indicating that in his opinion the assessment on 1 November 2009 was, as he puts it, defensible. In fact, he expressed no view about the performance of the ENP on 28 October 2009. There was delay in the defendant responding to the protocol letter from the claimant. The defendant under the protocol is allowed four months for a response to the letter of claim. They did not comply with the protocol and reminder letters - or at least one letter - had to be sent by the claimant's solicitors.[12]Although the litigation authority had instructed solicitors, and they had instructed them on a limited basis in order to instruct experts, had those solicitors have instructed Dr Ogilvie, it was the authority, and in particular a team leader employed by the authority, Suzy Kramer, or one of her team who wrote the first of the admissions (it is not absolutely clear, but she certainly okayed the first of the admissions made by the authority) in a letter of 19 December 2012. As she now accepts, although it had to be brought to her attention on the issue of proceedings by a Ms Evans of Capsticks, the solicitors that were at that stage instructed to defend proceedings or to consider the impact of proceedings, that admission was based on a careless and cursory reading of Dr Ogilvie's first short report.[13]She and the case manager within the team had read the transcription of the allegations of negligence in the short report as being Dr Ogilvie's view on breach of duty. They both failed to read the report to the end or alternatively they failed to notice or appreciate Dr Ogilvie's brief supportive opinion at the end of the report.[14]The letter of 19 December 2012 contained therefore a clear and, as far as breach of duty is concerned, unequivocal admission of breach of duty in relation to treatment on 28 October 2009. It also admits what is termed in the letter primary causation, again, I am afraid, parroting a section in Dr Ogilvie's report which simply reiterates an allegation in the letter of claim. It ends with a statement:
"Primary causation is admitted; however, we wish to have the claimant examined for the purpose of full causation and condition and prognosis."
[15]Understandably, the claimant's solicitors wished to have clarification of the letter and wrote seeking that clarification on 12 February and 4 March 2013 in the latter of which letters the claimant's solicitors threatened to issue proceedings. The defendant then arranged for the claimant to be examined by Dr Ogilvie. That examination took place on 12 July 2013 and gave rise to a report on condition and prognosis of 23 July 2013. In that report Dr Ogilvie noted that he had been told by the claimant's parents that liability had been admitted, but that he was unaware of the situation in relation to causation.[16]Following the examination there were a series of chasing letters from the claimant's solicitors and at least one chasing phone call. Dr Ogilvie was asked to produce a causation report which he did on 8 October 2013. In that report he points out that given the records he had seen on 28 October 2009 and on 1 November 2009 there had been no complaint of pain in the left hip and he also indicated that it was likely on that basis that infection had at that stage been confined to the neck and had not yet spread to the left hip. He says in that report that an empirical antibiotic started on 28 October 2009 or 1 November 2009 (and I use his words) may have prevented the disease which is actually called Lemierre's disease developing. That is the name for the syndrome, as I understand it, which is caused by the rare bacterial infection that I have already mentioned.[17]That report perhaps raises more questions that it answers but, having received it, the authority sent a second letter containing an admission and that was the letter of 12 December 2013 which can be found in the appeal bundle at 261. The case manager had not, when she wrote that letter, realised her earlier mistake. She should have done and she repeats her admission of a breach of duty. She then makes an admission that the admitted breach of duty caused the left hip damage ignoring, I fear, Dr Ogilvie's reference to the absence of a complaint of left leg pain in the records for 28 October and 1 November 2009.[18]I have already indicated that it seems from her statement that these were mistakes that were shared between Ms Kramer and a case manager in her team. I do consider that Mr Martin who represents the defendant in this appeal is right to point out that the admission of causation in the second letter of admission appears to be inconsistent with the earlier admission of breach of duty and he summarises those submissions in his skeleton at paragraph 20E 1 to 5 and it seems to me that given those inconsistencies he is also right in arguing that if the learned master had not allowed the withdrawal of admissions, it would not just have resulted in a trial on quantum alone or an assessment of quantum alone, but inevitably the court would have had to have sorted out what the true position on medical causation actually was, and I suspect that would have been something that would have occupied the court with medical expert evidence. The admissions on causation, despite Mr Booth's representation of the contrary, I do not find as clear cut as he says they are.[19]The letter from the authority of 12 December 2013 invites the sending of a fully pleaded schedule of loss and it is presumably as a result of that that proceedings were issued on 20 December 2013 and were then served on the defendants on 6 January 2014. The time for service of the defence therefore would have expired on 20 January 2014. The defendant asked the claimant's solicitors for an extension of time of 28 days to serve the defence on 27 January 2014. It is not very clear from Mr Booth's skeleton, but a careful reading of that skeleton does establish, I am quite satisfied of that, that that application was granted and Mr Booth confirmed that to me.[20]A second application for an extension of time to serve a defence was made on 27 February 2014. This time the application was for an extra six weeks and, again, that was granted. If the six weeks ran from 27 February 2014 then that period expired on 10 March 2014 and on 4 March 2014 that is within the time granted by the claimant's solicitors as an extension of time to serve the defence. A formal application to the court for an extension of time to serve the defence was made and it was that application that came before Master Cook on 24 March 2014.[21]It is I think important in relation to the appeal of the decision that Master Cook handed down on 1 August 2014 to set aside the judgment which Master Cook entered at that date in March and to permit the defendant to rely on the draft defence to note that as at that hearing in March 2014 the defendant was not formally seeking permission to withdraw the admissions, nor did they at that hearing disclose their various reports from Dr Ogilvie, but - as first of all Mr Martin's skeleton argument of 26 June 2014 which is 78 to 84 indicates - more importantly and this is really the accepted evidence from the decision judgment of Master Cook itself - at that hearing the defendant told the master that they intended to make such application. The actual application for the master on that day was perhaps not quite as transparent as that, but I am quite satisfied that the master was told that there was an intention to apply to withdraw the admissions.[22]At that hearing on 24 March the defendant requested an extension of time for service of the defence until 16 April. It was unsupported by evidence and of course was unaccompanied by an application to withdraw admissions following the pre-action protocol and in those circumstances it was hardly surprising that the master refused the application and entered judgment. However - and this is again important - if I look at the claimant's skeleton the master was told by counsel instructed by the defendant, Bradley Martin "has advised that there are inconsistencies between those admissions which will require clarification to put the defence on the proper footing. Counsel has advised that these issues will need to be clarified in a case conference before the defence can be finalised. Arrangements for an urgent conference are in hand, but as it will be necessary for the defendant's experts and the treating clinicians to attend, this will regrettably involve a short delay in finalising the defence".[23]The reason why no earlier application was made for withdrawal of admissions was that advice by learned counsel that there was a need to take stock of the case in a case conference. In my judgment, as I have expressed in argument, it was entirely reasonable that the defendant, given what had been, I am afraid, the mishandling of the matter by the authority to that date and the lack of focus in instructing Dr Ogilvie should want time to take stock, and indeed in fairness that might have been in the claimant's interest because the admissions might possibly have been confirmed.[24]I am completely satisfied, indeed it is not dispute, that at that hearing Master Cook knew that there was likely to be an application to withdraw the admissions and there was a direction which is not set out in the master's order, but there was a direction which is clear if you look at the master's judgment and also from Mr Bradley's skeleton at page 78 that such application should be made at the costs case management conference on 30 June 2014. As far as delay in making that application to withdraw the admissions, it is true that it was not made in the March hearing, but there is a good reason for that and there cannot be said to be any delay thereafter because the master fixed a hearing date for the hearing of any application that might be made.[25]The costs case management conference took place on 30 June 2014 and at that hearing, as the judgment handed down on 1 August 2014 explains, Master Cook allowed the withdrawal of the admissions, set judgment aside and permitted service of the defence which is in the bundle, denies breach of duty and, as Mr Booth again has rightly pointed out, does not admit or put a positive case at this stage on factual medical causation.[26]Master Cook's reasoned judgment is at page 48 onwards in the bundle. I shall deal first with the appeal against his decision to allow withdrawal of the admissions. I agree with Mr Booth QC at paragraph 8.6 of his skeleton that it is logical to consider that first. I have by virtue of CPR 52.11 (3) to determine whether the decision of Master Cook was wrong. I accept Mr Booth's summary at paragraph 2 of his skeleton at page 60 in the bundle, the questions which must be asked in order to resolve the issue. Again, as far as how I should approach this appeal, the parties are agreed.[27]CPR 14.1A, a relatively new 2006 provision to support the pre-action protocol because prior to that rule pre-action admissions could be withdrawn without any control by the court. It governs the making and withdrawal of admissions. A person, by giving notice in writing, may withdraw a pre-action admission after commencement of proceedings if all the parties to the proceedings consent or with the permission of the court. The practice direction to the rule states at 7.2:
"In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including: (a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made; (b) the conduct of the parties, including any conduct which led the party making the admission to do so; (c) the prejudice that may be caused to any person if the admission is withdrawn; (d) the prejudice that may be caused to any person if the application is refused; (e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial; (f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer was made; and (g) the interests of the administration of justice."
[28]The grant of permission to withdraw is correctly described as discretionary, but the court must have regard to all these circumstances and also obviously must have regard to the overriding objective at CPR 1.2 . The master's summary of the relevant paragraph 24 of his judgment was therefore accurate. He considered each of the grounds. As to 7.2A, he considered that this was not a case of new evidence coming to light but a case where the defendant frankly admitted that the authority which stood in the place of the defendant was negligent in making the admission. While that mistake was not corrected or indeed fully explained at the hearing of 24 March and nor were the medical reports disclosed, there was a reasonable explanation for that in that the case conference was to be heard. Clearly, the master did not see that as Mr Booth describes it as showing a lack of candour and I have to say I am of the same view as the master on this. The court was simply told that it seemed a mistake had been made and that an application to withdraw was likely, or rather that the court was told really that there was some doubt about the interpretation at that stage.[29]The fact that this was a pure mistake is distinguishable from the situation where there is a tactical change of an admission. That is the significance of it being a genuine mistake. The Court of Appeal considered an appeal from the decision on an application to withdraw an admission in the case of Woodland v Stopford & Others [2011] EWCA Civ 266 . It is not in itself of great importance. I do not mean to downplay the importance of any Court of Appeal decision, but it is not of huge significance in this court. However, it is helpful in one way that it was a case in which the defendant's representatives changed and a tactical reassessment of the evidence was made in that case as a result of which a largely unexplained decision to withdraw the admissions were made. It seems to me that this case that I am currently looking at is a stronger case for withdrawal than was the case in Woodland . In that case the learned judge decided in allowing the admission that justice cut both ways. This is at paragraph 229 of the Court of Appeal's judgment. It was not in the interest of the administration of justice to impose on the other party's state of affairs where there is good evidence that this might result in an injustice.[30]There is no doubt that the master considered, and considered properly, the first factor under 7.2.[31]7.2B: conduct. It is clear, as the master recognised, that the claimant was faultless. It was the defendants who had made a mistake. I agree with Mr Booth that I should be aware of and look at this case against the background of the revitalised robustness of approach enunciated by the Court of Appeal and the Master of the Rolls, in particular in the well-known cases of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Denton v TH White Ltd [2014] EWCA Civ 906 respectively, but I do not consider that an application to withdraw pre-action admissions necessarily imports the full factors that are relevant on an application to seek relief from sanctions under CPR 3.9 .[32]CPR 14 does not stand alone. The court must consider the overriding objective for a start, but I agree with the master that this situation arose as a result of a genuine mistake and not deliberate conduct. It is right that there had been delay by the defendant in responding to the letter of claim and repeated extensions of time for the defence were sought, but I would not categorise this, and I do in this context think of the factors which were canvassed in Mitchell and Denton , as, in any sense, repeated misconduct or default by the defendant.[33]As to (C): prejudice to any person if the admissions were withdrawn, the master considered this. It was said by the claimant that in relation to an admission of breach of duty the claimant had not commissioned expert evidence on breach of duty from either an accident and emergency expert or an orthopaedic expert and issued proceedings without that being available. It seemed to the master and it seems to me and it has to some extent been confirmed that having regard to the detail in the letter of claim and in the Particulars of Claim the claimant has obviously had expert advice in drawing up the particulars of breach. The letter of claim was not sent until June 2012. Had that received an immediate negative response from the defendant, the claimant would therefore at that stage in June 2012 (that is effectively three years post the critical events) have been seeking advice saying the claimant's advisers thought this appropriate from and A&E expert or another expert, and it seems to me that the additional delay in seeking such advice cannot be said to be likely to place the claimant now at a severe disadvantage which is how it is described. Indeed the claimant has not in fact lost her advantage of investigating these matters first. She was perfectly entitled to wait for nearly three years before telling the defendants of the allegations that were being made. In Mr Booth's skeleton it says that she will now have a restricted choice, but it gives no more detail of that. I would have thought there are surely plenty of relevant experts who could help.[34]He also says that the claimant expressly relied on admissions and that she would lose the benefit of a regular judgment entered in her favour, but those would be the almost inevitable consequences of any such application if it were successful as this. While they do constitute prejudice, I do not regard those as factors that were of great significance. What is important as far as this appeal is concerned is that the master plainly had those factors in mind.[35]Additionally, the claimant has been kept out of funds and is in urgent need of funds and indeed there are circumstances in which the claimant is living which had been additionally explained to me by Mr Booth. Undoubtedly, the situation is really difficult. That is of course prejudice, but if there is a genuine defence and if the admission had not been made, that would have happened in any event.[36]I accept that authorisation has been sought to instruct quantum experts following the making of the admissions and significant sums have been spent in relation to those, but the master's costs order was that the defendants pay all the claimant's costs effectively incurred so far, recognising that if the defendant were to win at the end of the day they would be bound to be ordered to pay the costs of those experts which would have effectively been thrown away and dealing with them in advance, so the claimant has effectively been put into the position that she would have been had the application to withdraw the admissions been unsuccessful.[37]Additionally, Mr Booth argues that the claimant has conducted no further investigations into liability post the admissions and will be disadvantaged in seeking further factual witness statements now. I am afraid that disadvantage is simply not particularised. Statements, I assume, have been taken, at least from the claimant's mother and father and without further particulars it is simply impossible for me or the master to have speculated on the disadvantage which might be caused. It would be purely speculative. I accept that the claimant would be disappointed and there may now be a liability trial, but again those are entirely predictable and perhaps inevitable results of admissions being allowed to be withdrawn.[38]The point here is that one is not talking about admissions that are to be withdrawn well on in the course of a case, say a month before a trial of quantum. These are admissions that are sought to be drawn right at the outset of proceedings in the case and, as the master himself pointed out, this now enabled the court both to case manage and also to control the expenditure of costs to ensure that the conduct of the litigation from now on was proportionate.[39]Here in my judgment, and clearly in the master's judgment, there is no hard and irreparable prejudice demonstrated and I do not consider the lapse of time since the admissions were made has been shown to have caused any additional prejudice. Really what the claimant has lost if there actually is a genuine defence here is the loss of a windfall. I consider that the master's consideration of prejudice caused by the withdrawal of an admission was both accurate and was satisfactory.[40](D) relates to the prejudice if the application is refused. Here the position is, on consideration of the medical evidence, absolutely clear and I agree again with the master. There will be the loss of a potentially bona fides defence. The Ogilvie reports now added to by a breach of duty report by a Dr Redhead, a consultant in A&E medicine, support a genuine and real defence. There is a real factual issue of whether and when complaints were made of leg pain. The records suggest there were not. Mr Booth on the other hand says that the defendant has a clear claim against the authority for negligence, not very arguably against the solicitors as Mr Booth says at page 32. It is a matter of prejudice to have to sue solicitors or agents in the position of solicitors. Additionally, there is prejudice to medical practitioners in findings of negligence against them in litigation even in these circumstances. Again, Master Cook deals reasonably in my judgment with this issue.[41](E) is the stage of proceedings at which the application is made and that is a very important factor in this case. Quite obviously this is very early in the proceedings. Again, Master Cook has correctly dealt with this issue and for my own part I regard it as an important one.[42]As to (F): the prospects of success, Mr Booth concedes it is really too early to tell which was the conclusion of the master. The master concluded that on the available medical evidence the defendant had a real prospect of success and I agree.[43]Then (G): the interests of the administration of justice. As the master said, the making of admissions is important in the structure of civil litigation and the court should not likely set aside admissions, but it might also be said that it does not further the interests of the administration of justice or, putting it another way, the interests of justice that a defendant who has a real defence is not able to advance it and that instead satellite litigation is created. That satellite litigation would in this case include the trial in this action of some causation issues for the reasons that Mr Martin argued in his skeleton and to which I have already referred and an assessment of quantum followed by potential litigation against the authority, and an assessment which would not necessarily be easy of the chances of success had negligence not occurred. Setting aside the admissions will lead to some very modest delay, possibly some extra cost over and above what would have happened anyway.[44]There is not an obvious great balance in favour of the interests of the administration of justice if the court does not order withdrawal of the admissions. Thus I do not accept even in a post-Mitchell world, as Mr Booth puts it at paragraph 24 of his skeleton, that this decision of the master drives a coach of horses through the interests of administration of justice.[45]Correctly, the master also considers the overriding objective of which he correctly stated the primary requirements are to deal with cases justly and at proportional costs. The proportionality of costs will, as he correctly said, be controlled by the court using cost budgeting and active case management.[46]That there would be an application to withdraw the admissions was flagged up at the March hearing and I therefore agree that it is wrong to designate the application to the master as a second bite of the cherry. There was a good reason for not making the application at the hearing in March.[47]In considering the overriding objective, it is perhaps now appropriate to look to, although the master obviously considered it so obvious that it was not necessary to mention it in his judgment, the application to set aside the default judgment. The default judgment was entered when the master refused to extend time for service of the defence and he did that against the background of clear admissions and in the knowledge that an application would be made to set aside those admissions at the costs and case management conference. It is clear from the master's judgment that he regarded his decision on whether to allow withdrawal of the admissions as decisive of the issue of whether to set aside the default judgment. That is in fact the corollary of the situation in March where it is very obvious that he would not have refused permission to extend time for filing a defence and enter judgment had there been a successful application before him to withdraw the admissions.[48]The reason why that was the case is that if the admissions were withdrawn, it is obvious, to use the words of 13.3(1), that the defendant had a real prospect of successfully defending the claim and although there had been delay in making an application to extend the time, that application was made in a period of agreed extension. There had, therefore, looking at the situation sensibly, and again looking at the issue of promptness which the court would have to consider in an application to set aside default judgment in 13.2, been no lack of promptness at all. It is not a question of looking at counting up days. It is a question of looking at the situation in practical terms and this was a case where before that, the defendants were relying on extensions. After it, the defendants were relying on the direction of the master to deal with these matters at the costs case management conference.[49]It is therefore unnecessary to look in any detail at the Mitchell and Denton cases in this application to set aside the default judgment, or if they have to be considered then it is very obvious that the three-stage guidance in Denton would have been satisfied. Indeed, it seems to me obvious that if the master had simply considered Mitchell he would have made the same decision on setting aside the default judgment.[50]What in fact Mr Booth is arguing is that the mistake in making admissions must be viewed against the Denton/Mitchell background and I agree that the new approach enunciated in Denton must be had regard to. It may be that Master Cook would have phrased his judgment in slightly different terms had Denton been decided before he gave judgment, but his final weighing of what was, in his view, a finely balanced case in paragraph 35 of the master's judgment is not - even if Denton is truly applicable (and when one is looking at the true substance of this appeal which is consideration of whether withdrawal of admission should be made, in other words looking at what a party has done) - incompatible with Denton . I do agree with Mr Martin in his submissions about the true nature of the issue on appeal here.[51]This was not a case such as those covered by Denton and Mitchell where a party exercising a genuine right to claim or to defend a claim has made a procedural error. Rather it is a case where if the master had not granted relief, he would have prevented the defendant from ever asserting a genuine right to defend the claim. There is no true analogy with an application for relief of sanctions.[52]Thus the master's final concentration on the interest of justice in paragraph 35 was not only correct but survives Denton . I am not persuaded that the master was wrong. I therefore dismiss this appeal.

Cited in 1 later judgment