In Dulson v Popovych, the Court refused the Defendant’s application to resile from an admission of breach of duty which had been made in her pleaded Defence.
The Claimant’s claim arose following four consultations with the Defendant, a registered nurse working at Lister House Health Centre. At the first consultation, the Claimant attended the health centre complaining of a “sore throat, a dry mouth and a neck lump” which had been “present since before his birthday” (para 4). The Claimant was informed that he had a suspected blocked saliva duct and was advised to suck lemons. No further tests were arranged within the consultation period (July – September 2015).
Throughout this consultation period, the lump on the Claimant’s neck continued to enlarge. Belatedly, the lump was found to be a squamous cell carcinoma requiring surgery. In the Defendant’s defence dated March 2020, liability was admitted in relation to the first appointment in July 2015, for failure to refer the Claimant to a specialist team under the relevant NICE guidance. Had the Defendant done so, it would have led to an urgent referral being actioned under the ‘two week wait’ rule. In lieu of this admission, no additional admissions were sought in relation to other allegations of negligence.
Whilst it is accepted that in any event surgery would have been required, the Claimant asserted that the negligent surgical delay led to more invasive surgery than if the Defendant had acted in a timely manner with appropriate skill and care. Consequently, the Claimant now suffers from loss of function to the right shoulder and arm.
The Defendant later sought to resile from this admission of breach of duty. She did so on the basis that, although her liability expert had indicated that there had been breach of duty, by failing to follow the NICE guidelines, a subsequent ENT expert had indicated that the Defendant’s actions may have been compatible with local protocols at the time; and if so; the Defendant’s actions were Bolam defensible.
The Practice Direction to CPR14 displayed below sets out the test that needs to be considered upon an application to withdraw an admission:
7.1 An admission made under Part 14 may be withdrawn with the court’s permission.
7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including –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 admission was made; and
(g) the interests of the administration of justice.
Applying the various factors in CPR PD 14 para 7.2, HHJ Nigel Lickley QC refused to allow the Defendant to resile from her admission of breach, noting three factors as of particular importance. Firstly, the local guidance was available in a strict sense at the time the case commenced, there was inadequate investigation involved generating considerable delay in bringing the application to amend. Secondly, the greater prejudice was adjudged to fall upon the claimant due to the requirement to vacate the extant trial date. Thirdly, in his judgment the point raised lacked real prospects of success. Finally, HHJ Nigel Lickley QC noted the relevant considerations of administration of justice, noting the importance of “efficient discharge” of justice and avoidance of delay as a further relevant factor in dismissing the application (para 31).
Ben Bradley, a barrister in our clinical negligence team, comments as follows:
This decision bucks against the general (but perhaps now outdated) thesis that “Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon” (this, now deleted wording, appearing in previous versions of the White Book). Historically, parties have been permitted to make (even sometimes last minute) amendments to their pleadings in the run-up to trial.
This case demonstrates that parties should (now) expect any application to amend (and in particular attempts to resile from admissions) to be placed under careful scrutiny, with the Court being likely to apply the factors set out in CPR PD 14 para 7.2 rigidly and carefully.
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