Withdrawing Admission of Liability

In a recent Judgment by the High Court in England and Wales, the Defendant, an NHS Trust, was not permitted to withdraw an admission of liability which it made in advance of an Inquest. This article was written by Eamon Harrington, Partner and Ana Harrington, Intern, CKT.

Background:

The Deceased, a community paediatrician, died a week after a myomectomy in a hospital in England. The post-mortem was conducted by Dr Wright, who recorded the cause of death on 21 April 2018 as small bowel ileus leading to abdominal sepsis and multiorgan failure, as well as uterine myomectomy.

Dr Winslet, an expert instructed by the coroner, felt that the cause of death was the ileus leading to vomiting, which in turn led to aspiration and subsequent cardiac arrest. Alternatively, he believed there may have been a rare bowel condition which would not have been recognised pre-mortem. On 8 March 2019, he further wrote that treatment would have prevented the aspiration and death.

On 24 March 2020, one day before the Inquest was due to begin, the Defendant made a full admission of liability. The Inquest was then postponed due to Covid-19. In April 2021, Dr Wright said that the cardiac arrest was likely due to hyperkalaemia as a result of excess potassium. Dr Winslet also noted this possibility, and accepted that if hyperkalaemia was the cause, then the death could have been unavoidable.

On 20 April 2021, the Defendants re-affirmed their admission of liability.

The following day, a pre-Inquest hearing was held. On the stand, Dr Wright reiterated that hyperkalaemia was the most likely cause of death, as aspiration is more often a consequence of cardiac arrest than a cause. Dr Winslet seemed to change his mind in oral evidence and accepted that unless aspiration had been the cause of the arrest, treatment may not have saved the Deceased’s life.

The Inquest concluded in late January 2022. The Coroner said that he could not say whether aspiration had caused the arrest, or whether the arrest had caused aspiration.

 The Application:

On 22 March 2022, the Defendant notified the Claimant that it was re-considering causation and obtained several expert reports.

Proceedings issued on 6 July and were served on 11 July.

On 13 July, the Defendant applied to withdraw its admission of liability, on the basis of new expert reports and Dr Winslet’s change of mind on the witness stand. While the Defendant accepted there had been a breach of duty, the Defendant now wished to dispute that this had caused the Deceased’s death.

The Law:

In England and Wales, the legal test for allowing a withdrawal of an admission of liability is set out in Practice Direction 14:

1.  Whether there is new evidence which was not previously available.

In this case, the Defendant claimed that the oral evidence of Dr Winslet and the expert reports were new evidence. The Judge, however, said that it was not a new theory that the death may not have been caused by aspiration. Dr Wright had always attributed it to multi-organ failure, and Dr Winslet had suggested a rare bowel condition as early as 2018. In April 2021, the possibility of hyperkalaemia was also advanced. Dr Winslet did not introduce a new theory on the witness stand, he merely changed his mind as to how likely it was.

The Judge also held that the new expert reports were less relevant as new evidence, as the real basis for the application was Dr Winslet’s change of mind.

2. The conduct of the parties

The Defendant claimed it had done nothing wrong, as it was trying to spare the claimant the rigours of a full Inquest.

However, the Judge was critical of this claim, noting that it was just as much about reducing costs. While the Court accepted that keeping costs low was to be encouraged, in this case an early admission of liability prejudices a Claimant’s ability to investigate liability as they may not be able to recover their costs for the investigations. The Judge placed emphasis on the fact that the Defendant, as an NHS Trust, would inevitably have legal representation, whereas the Deceased’s family might not. The well-represented Defendant should be held to any admissions it makes.

In any event, the Court felt that a Defendant is expected to take legal advice and conduct investigations before an Inquest.

3. Whether it would cause prejudice to the parties

The Defendant said it would be prejudiced if it were not allowed to withdraw its admission, as it would not be able to properly defend the case.

The Claimant said that it would be prejudiced otherwise, as it had conducted its quantum investigations before liability, and had potentially incurred unnecessary costs as a result. The Claimant also said that they would suffer general distress if the admission was withdrawn.

On balance, the Judge preferred the Claimant’s arguments, and also noted that in this particular case there was poor record-keeping, so it would be more difficult to conduct investigations now, two years after the Inquest.

4. When the application was made to withdraw the admission.

While the application was made only two days after service of proceedings, in practice the Defendant had longer to consider. Given the particular facts of this case, the application came quite late.

5. The claim’s prospect of success if the admission is withdrawn.

The Judge felt that the Defendant had a higher chance of success at trial, which supported their application to withdraw the admission.

6. The interests of the administration of justice.

The Defendant said it would be unjust to conduct a trial on an artificial basis.

The Claimant said that it relied on the Defendant’s admission, and that this would encourage Defendants to tactically admit liability to prevent Claimants from conducting their investigations early on.

The Court agreed with the Claimant, and noted that the Defendant would still be able to make arguments relating to condition, life expectancy and quantum.

Conclusion:

The decision is instructive – even though there is a Practice Direction in England and Wales, the Superior Court rules in Ireland require the consideration of similar principles.

In Ireland, an application to amend pleadings with leave, under Order 28, requires the court to consider matters such as the reasons offered to explain the application, what are the issues in controversy, whether there is prejudice to the other party, the conduct of the applicant, bona fide errors, and the like.

Because of the real risk that an application to amend a defence could be refused, in circumstances such as arose in England, care must be taken when admissions are made prior to an Inquest taking place.