Simmons v City Hospitals Sunderland NHS

The court may vary a final judgment entered on admissions under CPR 3.1(7) only with regard to the principle that final orders should ordinarily be challenged by appeal. The discretion may nevertheless be exercised where fresh evidence could not reasonably have been obtained earlier, is apparently credible and would probably affect the result. Justice may also require variation where the admitted issues are inseparably linked to matters still in dispute and a trial would otherwise proceed on a false factual basis. The early stage of the litigation and absence of prejudice are relevant. The same considerations may justify withdrawal of admissions under CPR 14.1(5).

The claimant brought a negligence claim arising from wound complications after an emergency caesarean section. The defendant had admitted that necrotising fasciitis ought to have been suspected earlier and that earlier treatment would have prevented further necrosis and an incisional hernia. Judgment was entered by consent on those admissions, while causation of later pyoderma gangrenosum and pulmonary embolism remained in issue.

After judgment, dermatological evidence suggested that the original condition might itself have been pyoderma gangrenosum, rather than necrotising fasciitis. The defendant applied to withdraw the admissions and vary the judgment. The central issue was whether the court should exercise its power under CPR 3.1(7) despite the finality of the judgment.

1. Application allowed. The order dated 15 November 2015 was varied so that the defendant could withdraw the relevant admissions. The judgment entered on those admissions was varied accordingly.
2. A judgment entered on admissions relating to part of a claim is final as to the issues it decides. The power under CPR 3.1(7) must not ordinarily be used to circumvent the principle that final orders should be challenged by appeal. That principle was stated in Roult v North West Strategic Health Authority [2010] 1 WLR 487 and applied to judgment entered on admissions in Kojima v HSBC Bank plc [2011] EWHC 611 (Ch).
3. The principles in Ladd v Marshall [1954] 1 WLR 1489 provided a relevant guide. The evidence had to be apparently credible, probably important to the result, and not obtainable with reasonable diligence before judgment. The court found those conditions satisfied. The provisional opinion obtained before judgment differed materially from the later considered opinion adopted by the defendant after consultation with its other experts and further records.
4. It would be unjust to require the remaining causation issues to be tried on the assumption that the claimant had suffered necrotising fasciitis if the evidence showed that the original condition was pyoderma gangrenosum. The admissions were inextricably intertwined with issues still in dispute. The early stage of the proceedings and the absence of prejudice to the claimant further supported variation.
5. The court reached the same conclusion under CPR 14.1(5), since the circumstances made withdrawal of the admissions just. Similar reasoning was adopted in Atkins v Cooperative Group Ltd [2016] EWHC 80 (QB), where experts should not be required to proceed on a false factual basis.

First-instance application in the High Court. The judgment records no appeal from the order of 15 November 2015.