MAN v St George's University Hospital NHS Foundation Trust

Defendants must plead positively any material factual allegation they are able to admit or deny. A general requirement that the claimant prove allegations does not permit the defendant to introduce positive evidence contradicting them. If the defendant wishes to rely on such evidence, the defence must set out a positive case, ordinarily requiring amendment where the pleading has operated as an admission.

In clinical negligence proceedings, treating or potentially treating clinicians may give factual evidence of what they did or would have done. They must not give expert opinion about disputed clinical facts, such as the claimant’s condition at the relevant time. Evidence based on assumed facts or later events may exceed the proper scope of Bolitho evidence.

The claimant applied under Part 32 to exclude two witness statements and a witness summary served by the defendant in a clinical negligence claim. The evidence concerned the claimant’s reported pain, the evidence of Dr Glazebrook about what would have occurred in the emergency department, and the evidence of Mr Vesely about the surgery that might have been undertaken.

The claimant argued that the defence had failed to put the allegation of extreme pain in issue and that parts of the clinicians’ evidence were impermissible opinion evidence. The defendant relied on the pleadings and sought to use the evidence on breach and causation. The central issues were whether the pleadings made the matters live issues and whether the proposed evidence fell within the proper scope of factual or Bolitho evidence.

The claimant’s application was granted in part.

1. Pleading of factual issues. Under Civil Procedure Rules 1998, rule 16.5, a defendant must deal with each allegation by admitting it, denying it, or stating that it cannot admit or deny it and requiring proof. The court applied the approach in API North Ltd v Swiss Post International (UK) Ltd [2019] EWCA Civ 7: indiscriminate non-admissions are impermissible, and a defendant has a positive duty to admit or deny allegations which it can address.
2. The allegation that the claimant was in extreme pain was central and could have been addressed by asking the nurse who treated her. The defence’s formulation that the claimant was required to prove matters inconsistent with the records did not properly put the allegation in issue. The defendant was therefore not entitled to rely on Nurse Jabeen’s evidence contradicting that allegation without applying to amend the defence.
3. Putting the claimant to proof requires the claimant to adduce evidence. It does not entitle the defendant to adduce positive evidence on the same issue while leaving the issue unpleaded.
4. Dr Glazebrook. Evidence about emergency-department systems was potentially admissible. Evidence about what he would have done personally required proof that he was within the pool of doctors who might have treated the claimant. On the information available, permission was granted only insofar as the witness summary addressed systems.
5. Mr Vesely. A clinician may give evidence about what he would have done on stated hypothetical facts and about his general approach. He could not give expert opinion about the claimant’s disputed condition at the start of surgery, particularly where the evidence relied on later events. The relevant passages addressing the level of amputation and the claimant’s condition were inadmissible. Other evidence about general approach and what he would have done if called in the emergency department was permissible.