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Resiling from admissions and relief from sanctions

Moore v Worcestershire NHS Trust
High Court
12 February 2015

In this recently published judgment, the court had to consider the relationship between the rules on withdrawing admissions, setting aside judgment and granting relief from sanctions. Perhaps surprisingly given the errors made by the defendant, the judge upheld the first instance decision and allowed the withdrawal of admissions made pre-litigation, but the judgment is a thorough and considered one, providing helpful guidance on the operation of the rules. Andrew Cousins reviews the judgment and its practical implications. Moore v Worcestershire NHS Trust (2015).

Background

The claimant brought a claim against the defendant NHS Trust for alleged clinical negligence. Following an initial complaint of earache from the seven year old claimant, it took three visits to hospital before she was diagnosed as having a rare infection. By then the infection had spread through her body resulting in severe damage to her hip which would require treatment for the rest of her life.

After obtaining a preliminary medical advice, the defendant wrote to the claimant admitting “primary causation” but requiring the claimant to be examined for the purposes of “full causation and condition and prognosis”. Following that examination and on receipt of the report, the defendant wrote a further letter admitting liability and conceding that the breach of duty caused the hip damage.

The claimant later commenced proceedings. After a number of agreed extensions of time for service of the defence, the defendant made a formal application for a further extension. The Master refused the application and entered judgment. However, during that hearing the defendant indicated it was contemplating an application to withdraw the admissions. It emerged that the defendant had made the admissions in error and on a “careless and cursory” reading of the evidence. By the time of the costs and case management conference, the defendant had regrouped and applied to withdraw the admissions. This time the Master granted the application, set aside the judgment and permitted service of a defence denying breach of duty. The claimant appealed these findings.

Findings

His Honour Judge Bidder QC dismissing the appeal held:

The admissions were purely a mistake and their withdrawal was not a tactical change by the defendant designed to prejudice the claimant. Consideration of a withdrawal of a pre-action admission did not import the full factors of relief from sanctions, but CPR r.14 which deals with admissions does not stand alone and the overriding objective must be considered. There was no irreparable damage caused to the claimant by the withdrawal and it was not right to deprive the defendant of a defence which had prospects of success. 

The index case was not analogous to an application for relief from sanctions and it followed that after allowing the withdrawal of the admissions the default judgment had to be set aside as this meant the defendant must have a reasonable prospect of success.

The defendant had been relying upon the agreed extensions and court orders to file their defence until time expired, and as such even if the provisions of Denton and issues of relief from sanctions needed to be considered (which the court found they did not), the defendant satisfied those provisions. 

Comment

At first sight it may seem surprising that the appeal was dismissed; the Master had found that no new evidence had come to light since the admissions had been given and that the admissions had been made negligently. Two admissions had been given and the claimant had been relying upon those admissions for some time.

However, the claimant could not particularise any prejudice from the withdrawn admissions and this was a significant factor for the court to consider. The claimant was still able to investigate liability and properly quantify her claim. The early stage at which the application to withdraw had been made weighed heavily in the defendant’s favour and these factors combined led the court to dismiss the appeal.

Whilst a default judgment had been entered, the effect of allowing the defendant to withdraw the admission was clear evidence that the defendant had a reasonable prospect of successfully defending the claim and again was a significant factor in the court setting aside the judgment. The prospects of success of defending a claim are only one limb of the test which has to be satisfied in order to set aside the judgment. In relation to considering the “promptness” limb of the test the court found that there had been no lack of promptness in the defendant’s position. In any event the court’s task is not to just add up the days to see if an application has been made “promptly”; the court has to look at the case as a whole and the effect of refusal on the entirety of the position.

The decision is generous to defendants. The claimant had been relying upon admissions given in the pre-action stage and legitimately obtained a default judgment. As such the defendant may consider that they were lucky in withdrawing the admissions and setting aside the default judgment.

However, looking at the overall position in the case, the decision is very thoroughly considered. Whilst withdrawing admissions and setting aside default judgments is still an issue which defendants should avoid having to become embroiled in, the decision is a useful reminder that applications can and do succeed if made early in the proceedings and if sufficient evidence about the reasonable prospects of a defence can be highlighted. 

What is important in the judgment for defendants is the court’s acknowledgement that the application for withdrawal of an admission did not import the relief from sanctions test under Denton as there is no procedural default and accordingly the court’s judgment did not undermine the “post Mitchell” approach to procedural adherence. The judgment is therefore useful guidance for defendants when considering applications to withdraw admissions and how to approach such an issue. 

Contact

For further information please contact Andrew Cousins, Solicitor Advocate on +44 (0)161 603 5093.

By Andrew Cousins

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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