In a Judgment handed down on 6th February 2023, in the case of Somoye v North West Anglia NHS Foundation Trust, the High Court of England and Wales rejected a Defendant’s attempted u-turn on an admission of liability.
The claim relates to the death of Dr Oluyinka O Somoye on 07 March 2018.
The factual background is that Dr O Somoye underwent a Myomectomy (operation to remove fibroids while preserving the uterus). On the date of discharge, she suffered a seizure at home and reattended hospital where she was again discharged. Four days later, she reattended with severe abdominal pain. X-rays raised concern in respect of small bowel obstruction or ileus. Six hours later in hospital Dr Somoye vomited, collapsed and suffered cardiac arrest. Resuscitation was unsuccessful and Dr Oluyinka was pronounced dead.
A pre-action admission of liability was made by the Defendant (North West Anglia NHS Foundation Trust) on 24 March 2019 and the admission was re-iterated as a full admission in open correspondence on 20 April 2021. The Claimant made an application for Judgment to be entered against the Defendant based on their admission. In contrast, the Defendant made application to withdraw their admission as to causation. Any admission in respect of breach of duty was not in dispute.
The Defendant argued that the Coroner’s medical expert “completely changed his mind whilst on the witness stand” during the Coroner’s Inquest and there was now new evidence which gave rise to a good defence of the claim.
The legal test for the Court in determining whether it should exercise its discretion in permitting a pre-action admission to be withdrawn, the Court must consider:
- Grounds of the application including whether new evidence has come to light since the time the admission was made.
- Conduct of the parties.
- Any prejudice that may be caused to any person if the admission is withdrawn or equally if the application is refused.
- Stage of proceedings.
- Prospects of success.
- The interests of the administration of justice.
The Court considered each of the above points and made the following assessments which can be summarised as follows:
It could not be argued that there was any new theory or evidence because the evidence was obtained in support of the application, rather than new evidence being obtained which triggered the application.
There was no indication from the Defendant that they were investigating causation until March 2022 and no formal request was made to resile from the admission until after the Claimant made an application for Judgment to be entered in July 2022.
The Defendant was criticised for making the admission in respect of causation without having instructed their own independent medical expert to comment on causation, especially where there were issues raised that might provide a Defence to the claim by an expert that was not instructed by the Defendant in respect of causation.
On the point of prejudice, the Court accepted that if the admission was upheld, that will likely prejudice the Defendant. However, that prejudice could be mitigated by the fact that they will be able to challenge the extent of loss.
The Court accepted that whilst the application was made at an early stage in civil proceedings, sufficient time had passed both since the subject incident and the admission and furthermore that there has been an inquest investigating the facts of the case.
The Court also found that the Defendant had realistic prospects of success in their causation argument.
The Claimant argued that it would not be in the interests of justice to allow a Defendant who has made an admission prior to the Inquest to withdraw when that admission has been relied upon.
On weighing all factors in the balance and taking account of the circumstances of the case, Master Sullivan ultimately found that the Defendant should be held to their admission and refused to withdraw the admission. The Master stated that whilst the Defendant having a realistic Defence is a strong factor in favour of permitting withdrawal, it is outweighed by the conduct and prejudice issues.
Master Sullivan refused permission to withdraw and found Judgment in favour of the Claimant for damages to be assessed.
20th February 2023
By Dearbhla O’Hanlon
Healthcare Team, O’Reilly Stewart