Clark v Braintree Clinical Services Ltd

A qualified admission in a defence may require permission to withdraw where the pleading amounts to an admission conditional on proof of specified facts. In exercising that discretion, the court considers the parties’ conduct, delay, prejudice, additional costs, the effect on the issues and trial, and the interests of justice and the overriding objective.

An expert report served outside directions cannot be relied upon without permission. Relief against the consequences of non-compliance depends on the seriousness and significance of the breach, the explanation for it, and all the circumstances. A report addressing liability, served late and inconsistent with an admission, may be excluded on liability while remaining admissible on causation and prognosis.

The claimant brought a negligence claim arising from arthroscopic shoulder surgery. The defence contained a conditional admission of breach, subject to proof that physiotherapy had not been offered within a reasonable time and that no proper reason justified that failure.

The defendant later sought permission to withdraw the admission. The claimant sought to prevent reliance on a second expert report, served after the deadline for exchanging liability reports, which addressed breach as well as causation. The applications raised the related questions whether the admission could be withdrawn and whether the late report should be admitted in whole or in part.

1. Withdrawal of admission. The defence contained a qualified admission of breach. Its conditional wording did not prevent it from being an admission requiring permission to withdraw. The court considered the parties’ conduct, the defendant’s delay, the prejudice and additional costs to the claimant, the likely lengthening of the trial, the defendant’s limited prejudice, the inconsistency in its expert evidence, and the need for any amended defence.
2. The defendant had not treated breach as a live issue when its first expert report addressed causation only. The later attempt to reopen breach would undermine the narrowing function of pleadings and the efficient conduct of litigation. In the circumstances, withdrawal was not consistent with the interests of justice or the overriding objective. Permission was refused.
3. Late expert report. The second report was substantially a liability report, despite also containing views on causation. It had been served about one and a half months late, contrary to the Master’s directions. The defendant supplied no credible explanation, and the report contained views inconsistent with both the pleaded admission and the expert’s later joint opinion.
4. Applying the principles governing relief from sanctions, including the seriousness and significance of the breach, its explanation, fairness between the parties and all the circumstances, the court refused permission to rely on the report insofar as it dealt with breach of duty. The defendant retained permission to rely on the report’s provisions concerning condition, causation and prognosis, including relevant material from the first and joint reports.