Simon Paul Read v North Middlesex Hospital Trust

Clinical negligence pleadings based on omissions must identify the clinical condition, the breach alleged, the treatment or investigation that should have occurred, and the resulting injury or condition. A claimant cannot leave those essential counterfactuals for expert evidence or invite the defendant to formulate the case. The pleading must also have the support of appropriately qualified expert opinion, although disclosure of the report may not yet be required.

Loss of a chance is not itself a cause of action for a better recovery. The claimant must first plead and prove a breach causing or materially contributing to an identified injury or condition. For QOCS purposes, the relevant grounds of strike-out are the substantive reasons why the claim was struck out, and may include a failure to comply with an unless order where the underlying failure also discloses no reasonable grounds or constitutes an abuse of process.

The claimant brought a clinical negligence claim arising from attendances at the defendant’s A&E department in November 2016 and January 2017. The claim alleged delayed assessment, investigation and treatment, and sought damages said to arise from a lost opportunity for a full or better recovery.

Following an earlier unless order made in connection with a compromised appeal, the claimant served Amended Particulars of Claim. The defendant applied to strike out the claim or obtain summary judgment. The claimant sought permission to rely on Re-Amended Particulars of Claim. The issues were whether the amended pleading complied with the unless order, whether it disclosed a properly particularised and arguable clinical negligence claim, whether re-amendment should be permitted, and whether CPR 44.15 applied to the resulting strike-out.

1. Strike-out and re-amendment. The Amended Particulars of Claim did not provide the further and better particulars required by the November 2023 order. The claim was therefore automatically struck out. The proposed Re-Amended Particulars of Claim did not cure the defects and permission to rely upon it was refused.
2. In a clinical negligence claim based on omissions, the pleading must state the relevant condition and its presentation, the specific breach, what diagnosis, examination, referral or treatment should have occurred, the likely findings and consequences, and the injury or condition caused by the breach. Mere allegations that the defendant failed to investigate, diagnose or treat are insufficient. The claimant cannot transfer the burden of identifying the counterfactual case to the defendant or leave it for experts to formulate.
3. The pleaded allegations also lacked the support of appropriately qualified expert opinion. Although a report need not necessarily be disclosed before later stages of the claim, the allegations must have a proper evidential foundation. The relevant expertise must correspond to the alleged breach, particularly where the claim concerns A&E assessment and triage.
4. The claim impermissibly relied on the possibility of a better outcome without identifying a recoverable injury or condition caused or materially contributed to by negligence. Following Gregg v Scott, loss of a chance of a better recovery is not an independent cause of action. Chance may affect assessment of damage only after an actionable injury or condition has been properly identified.
5. CPR 44.15 is directed to the substantive grounds explaining why proceedings were struck out. It is not confined to strikes under CPR 3.4(2)(a) and (b). The relevant grounds may overlap with CPR 3.4(2)(c), CPR 3.4(5), or another procedural route. Here the deficient pleading disclosed no reasonable grounds, amounted to an abuse of process or was likely to obstruct the just disposal of the proceedings. QOCS protection was accordingly disapplied.
6. A Part 18 request could not substitute for a party’s failure to plead the fundamentals of its claim. The claim had no real prospect of success even if re-amendment were allowed.

The claim was issued in the County Court. An appeal against an unless order was compromised on 16 November 2023, with directions requiring amended particulars and a condition and prognosis report. The present applications were determined by the High Court after the matter’s procedural status had been clarified.