Gbolahan O Somoye v North West Anglia NHS Foundation Trust

Permission to withdraw a pre-action admission is discretionary. The court must consider all the circumstances, including the grounds for withdrawal, new evidence, the parties’ conduct, prejudice, the stage of proceedings, prospects of success and the administration of justice. The factors have no fixed hierarchy and must be weighed against the overriding objective.

A realistic defence may favour withdrawal, but it may be outweighed by a defendant’s failure to investigate an identified causation issue before admitting liability, delay in seeking withdrawal and prejudice caused by reliance on the admission. A liability admission leaves the defendant able to contest the extent of loss, including condition and life expectancy, provided the argument is not inconsistent with injury or death having been caused by the admitted negligence.

The claim arose from the death of Dr Oluyinka O Somoye after treatment at the defendant NHS Trust’s hospital. The Trust made a pre-action admission of liability in March 2020 and repeated it in April 2021. Proceedings were issued in July 2022, with the claimant seeking judgment on the admission.

Following further expert evidence and a change in emphasis in Professor Winslet’s opinion at the inquest, the Trust applied under Civil Procedure Rules 1998, CPR 14.1A(4), and Practice Direction 14, paragraph 7, to withdraw the admissions relating to causation. It did not seek to withdraw the admission of breach. The issue was whether permission should be granted.

1. Discretionary test. The court had discretion under CPR 14.1A(4) and Practice Direction 14, paragraph 7. The factors in paragraph 7.2 were not hierarchical. Each required due weight, together with all the circumstances and the overriding objective. The court should avoid conducting a mini-trial when assessing prospects of success.
2. New evidence and conduct. The alternative causation theory had been identified from 2018 and was available when the admissions were made. The later expert reports were evidence supporting the application, rather than the grounds for it. The Trust should have taken independent legal and medical advice before admitting liability, particularly because an expert had raised a possible causation defence. Its delay in notifying the claimant that causation was being investigated was significant.
3. Prejudice and prospects. The Trust had a real prospect of succeeding on causation relating to 7 March 2018. However, the admission was broader and also covered earlier substandard treatment, for which the Trust had not produced evidence addressing causation. The claimant had suffered forensic and financial prejudice by relying on the admission during the inquest and investigating quantum rather than liability.
4. Effect of the admission. Refusing withdrawal would prevent the Trust from disputing liability, but it could still challenge the extent of loss, including the deceased’s condition and life expectancy, provided that argument remained consistent with some injury, including death, having been caused by the negligence.
5. Disposition. The Trust’s realistic causation defence was outweighed by its conduct and the prejudice caused to the claimant. Permission to withdraw the admission was refused. Judgment was entered for the claimant, with damages to be assessed.