Michelle Prudence & Anor v Gloucestershire Hospitals NHS Foundation Trust

Strike-out and summary judgment applications require the court to analyse each challenged pleading and each procedural test separately. A defendant may state that it is unable to admit or deny an allegation where the matter is outside its knowledge, is not capable of rapid ascertainment from readily available sources, or depends on a counterfactual event that did not occur. This is particularly so where the claimant has not clearly pleaded the duty owed directly to the claimant or its alleged breach. Admissions of negligence owed to third parties do not, without more, establish liability to another claimant. Summary judgment may determine a discrete factual issue where the evidence is effectively unanswered, but issues involving causation, foreseeability, expert evidence and the interaction between different duties should proceed to trial.

Two employed midwives brought psychiatric injury claims against their employer after assisting with the emergency transfer of a newborn baby who later died. The defendant admitted negligence in the care of the baby and her mother, but disputed the causal and legal significance of that negligence for the claimants’ separate claims.

The claimants sought to strike out ten paragraphs of the amended defences under Civil Procedure Rules 1998, rule 3.4(2), and sought summary judgment under rule 24.2 on the alleged clinical negligence and its causal connection with the transfer. The central issues were whether the defences were impermissibly non-admitting and whether the materials established, without trial, that the admitted negligence caused the emergency transfer in which the claimants became involved.

1. Strike-out. The applications to strike out the challenged paragraphs were dismissed. The court must read the pleadings as a whole and assess the precise allegations answered by each paragraph. A pleading may contain admissions, denials and non-admissions without being abusive or defective.
2. Applying SPI North Ltd v Swiss Post International (UK) Ltd [2019] EWCA Civ 7, a defendant need not admit or deny an allegation where its truth is outside actual or attributed knowledge and is not capable of rapid ascertainment from documents or other readily available sources. That principle was especially relevant because the claimants had not clearly pleaded the duties owed directly to them or the breaches of those duties. Clinical negligence owed to the baby and her mother was not automatically portable into a claim by the employed midwives.
3. The defendant was also entitled not to admit counterfactual assertions about what would have happened following an event that did not occur, unless it positively advanced a different counterfactual case. The challenged defences were therefore not stonewalling or bare denials within the meaning of the procedural rules.
4. Summary judgment. The applications succeeded only to a limited extent. On the available material, local guidance and the evidence in the HSIB report, transfer to hospital for obstetric referral and monitoring should have begun shortly after blood-stained liquor was first documented at 03.50. The baby would consequently have been delivered by, or under the supervision of, the obstetric team.
5. The court could not determine summarily whether that earlier transfer would itself have been an emergency transfer, when an emergency transfer first became necessary, or whether such transfer would have occurred because of non-negligently caused deterioration or other admitted breaches. Those issues involved causation, foreseeability, the scope of duties owed to the claimants and expert evidence. The court warned against a mini-trial, applying the principles summarised in Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch). All remaining issues were left for trial.