Michelle Prudence v Gloucestershire Hospitals NHS Foundation Trust

This is in a number of respects an unusual appeal. It flows from applications to the Master by the claimants in two cases which arise out of the same factual scenario. I address this scenario more fully below but in short both claimants were employed by the defendant as midwives and, on 14 May 2020, assisted in the traumatic emergency transfer by ambulance of a newborn baby known as Baby Margot. Both claim to have suffered career ending post-traumatic stress disorder.

Applications in both actions were made on 21 August 2024 seeking to strike out specific paragraphs of the Amended Defences and/or for summary judgment on specific paragraphs of the Amended Particulars of Claim.

The applications were heard on 17 February 2025. A draft judgment was circulated and counsel responded with corrections and, in the claimants’ case, one proposed addition to the text. That addition was objected to by the defendant and did not, in the end, appear in the judgment handed down on 16 May 2025.

The judgment handed down was the subject of an oral hearing at which the parties argued their respective positions on the appropriate order to follow the judgment. The claimants’ position was that they were entitled to summary judgment on a single issue. It was not, and never had been, the claimants’ position that they were entitled to summary judgment as a whole or on liability but, as set out in the judgment, they had argued that it would assist the court and the parties to clear away issues that were not truly in dispute so that the litigation could focus on the admittedly complex issues that remained. The defendant’s position was that the issue on which the claimants sought summary judgment was a finding, or findings, of fact and that it was better dealt with by the recital in the Order of the finding or findings made.

The Master preferred the position of the defendant; declined to enter summary judgment; and made a costs order in favour of the defendant. The Master, however, included a material recital in his Order. The terms of this recital were

“AND UPON the court finding that there should have been an obstetric referral by no later than 5.50am on 14^th May 2020”.

The claimants appealed and were granted permission to appeal. The Appeal Notice recited the Order that the appellants said ought to have been made as follows:

“There be summary judgment in favour of the claimants on the issue that, but for the Defendant’s negligence, the Claimants would not have been involved in the transfer that caused their injuries on 14 May 2020 …..”

The unusual aspect of this appeal is that, as counsel made clear in the course of submissions for the respondent, the respondent’s position was that the Master could have given summary judgment in those terms. However, the Master had chosen not to do so and instead to make the recital of fact. That, it was submitted, was a decision entirely within the range of reasonable decisions for him to make in the exercise of this discretion and was not a decision that could or should be interfered with on appeal.

The respondent criticised the appellants for failing to put before the court any note or transcript of the proceedings before the Master on hand down. The written submissions were included in the appeal bundle and the appellants told the court that they had offered to add the solicitors’ note of the hearing but the respondent had objected to its inclusion.

On behalf of the appellants, Mr Roy KC’s short answer to the respondent’s submission as to the range of reasonable decisions was that, if the appellants were entitled to summary judgment in accordance with Part 24, there was no basis on which summary judgment should not be entered in their favour and there was no discretion to be exercised in this respect.

To understand how this argument had developed, it is necessary to follow through the trail of the pleadings.

The claimants were midwives at the Aveta Birth Unit in Cheltenham Hospital which is suitable only for low-risk births. The Midwifery Led Care (Homebirth and Birth Unit Pathways) A1061 Guideline provides that mothers with certain potential complications should have their care transferred to Gloucester Royal Hospital (“the Hospital”) which has facilities for full obstetric and neo-natal care. One such complication is blood loss and the Guideline provides:

“If there is unexplained blood loss per vagina, the woman should be immediately transferred to the Obstetric Unit, referred for Consultant care. Beware of blood stained liquor ….”

On 14 May 2020 at about 1.25pm, the claimants were required to assist in the emergency transfer of Baby Margot to the Hospital where she sadly died on 17 May. The transfer was highly traumatic and the claimants had to attempt CPR, to attempt to resuscitate Baby Margot, in the high speed ambulance and while unrestrained. In both their cases, as set out above, they say that they suffered career-ending psychiatric injuries as a consequence of their involvement in this traumatic event.

The claimants’ case is that Baby Margot’s mother ought to have been transferred much earlier. In particular, blood stained liquor was first reported at 3.40am and transfer ought then to have been made immediately. Blood stained liquor was reported again shortly before 6.00am. In short, a central plank of the claimants’ case is that the failure to make the transfer immediately following the observation of blood-stained liquor was negligent and that, but for that clinical negligence, they would not have been involved in the ambulance transfer that, in fact, took place and would not have suffered the psychiatric injuries that they did.

Following Baby Margot’s death an Independent Report dated 20 November 2020 was made by the Healthcare Safety Investigation Branch (HSIB). The report recorded the documentation of blood stained liquor. The report recorded that there was a handover of care between midwifery staff between 7.25 am and 7.45am but the investigation team could find no evidence of a structured documented handover and were informed that the oral handover focussed on the mother’s birth preferences. The report included the following:

“The HSIB clinical panel considers that, in light of the blood-stained liquor, a referral to the obstetric team was indicated. The HSIB clinical panel considers it would have been appropriate to transfer the Mother to obstetric led care and for continuous CTG monitoring of the Baby’s wellbeing when blood stained liquor was observed.”

There are some differences, which are not material to this appeal, between the case as put for Ms Prudence and Ms Charlton but, as it was argued before me, I take the pleadings in Ms Prudence’s case as the exemplar.

The Amended Particulars of Claim, at paragraph 20, set out in detail the alleged negligence of the defendant. There were 14 sub-paragraphs. The particulars of negligence included, but ranged beyond, failing to escalate the case to the obstetric team when blood stained liquor was recorded and failing to carry out a structured and documented handover. All the particulars relied upon related to the care of Baby Margot and her mother. The claimant then contends (at paragraph 20A) that, but for this negligence, (a) Baby Margot would have been delivered by the obstetric team in the Hospital; (b) that there would have been no “Baby Margot incident” or no need for the post-natal emergency transfer; and (c) there would thus have been no need for the claimant to assist in the incident or the transfer.

At paragraph 21, the claimant then set out her reliance on the HSIB report and various admissions made by the defendant including admissions made by letter dated 14 August 2021 (and confirmed by letter dated 10 February 2022) responding to the letter of claim in respect of Baby Margot. These admissions included the admission of the documentation of blood stained liquor and that “it is accepted that the presence of blood-stained liquor should have led to a referral to the obstetric team and that failure to do so was a breach of duty.” Further that:

“Between 07.25 hours and 07.45 hours on 14 May 2020 there was a failure to undertake a handover of care between the night and day shift and this resulted in a missed opportunity to note the blood-stained liquor and ensure an escalation of care to the obstetric team and transfer to obstetric led care for continuous monitoring.

It is accepted that there is no documented formal handover (SBAR) and that the presence of blood-stained liquor should have led to a referral to the obstetric team. Failure to do so was a breach of duty.”

Under the heading “Basis of Liability”, at paragraphs 23 and 24, it is then pleaded that the claimant was subjected to a frightening and dangerous high speed journey during which she had to perform resuscitation and that:

“The Claimant was thus in the zone of foreseeable physical injury, and in any event at the time reasonable believed herself so to be. She therefore qualifies as a primary victim for purposes of a claim for psychiatric injury …. The defendant whose negligence caused the Baby Margot incident is, therefore, liable to her.”

By the Amended Defence, the defendant variously admitted, denied or did not admit the allegations of breach and whether they amounted to breaches of the duties owed to Baby Margot and her mother. The defendant noted that all the allegations of breach of duty of care were allegations of breach of duty owed to a third party namely Baby Margot and/or her mother.

The defendant denied that the need for the emergency transfer was the result of the defendant’s negligence and averred that this arose from the poor condition of Baby Margot at birth. In particular, at paragraph 16 (p), the defendant stated:

“It is further admitted that had an opinion been sought from a consultant obstetrician in light of the blood stained liquor then on balance the birth of Baby Margot would at that time had been expediated (sic). It is not admitted that an expediated birth would have avoided this being a traumatic birth and/or the resulting need for an emergency ambulance transfer.”

In relation to the Basis of Liability, the defendant denied the case that the claimant was to be considered a primary victim of the (breach of) duty of care owed to Baby Margot and her mother and denied that being requested to be in the ambulance was a breach of any duty owed to the claimant. Causation was also denied.

In January 2024,after service of theoriginalDefence, the defendant responded to a Notice to Admit Facts and in the Amended Defence expressly said that it did not resile from the content of that Notice:

In the Amended Reply the claimant expanded upon her case as to the basis of liability. In summary, she said that the defendant, as her employer, owed her a duty to take reasonable care not to expose her to risk of foreseeable injury. It was foreseeable that, if Baby Margot’s mother was not transferred timeously, resuscitation and an emergency transfer could be required and that a midwife required to travel in the ambulance could suffer injury. The defendant thus negligently exposed the claimant to the risk of injury and psychiatric injury was suffered.

As I have said, the claimants’ applications were issued in August 2024 and sought to strike out paragraphs of the Amended Defence or summary judgment on specific paragraphs of the Amended Particulars of Claim. In Ms Prudence’s case, and reflecting the terms of the application, the draft Order, in so far as it related to summary judgment, was framed as follows:

“Judgment be entered for the Claimant pursuant to CPR 24.2 for its (sic) claim found in paragraphs 20-21 of the Amended Particulars of Claim dated 17 April 2024.”

The application and draft Order in Ms Charlton’s case referred to the equivalent paragraphs of the Amended Particulars of Claim.

The evidence in support of the applications was contained in two witness statements of David Marshall, a partner of Anthony Gold Solicitors LLP. No evidence was served by the defendant. Ms Charlton also provided a short statement.

The claimants’ skeleton argument throughout referred to the issue before the court (whether in terms of striking out part of the Defence or entering summary judgment) as “the clinical negligence issue”. Paragraph 2 encapsulated that issue as “whether Cs being required to assist in the highly traumatic ambulance transfer of a newborn baby …. was the result of D’s clinical negligence”. This was said to be a self-contained issue.

The claimants argued that their evidence was credible, indeed compelling, evidence of causal negligence which had not been contradicted by the defendant. Although the application was framed more widely, the skeleton argument focussed on two aspects of this alleged negligence. One was the failure to respond to the observation of blood stained liquor and expedite transfer to the hospital. It was that said that it was “clear this was causative”. The second was the failure to respond to the mother’s requests for transfer at about 11.00am and 12.00pm which were admitted. It was said that it was clear that the transfer at this stage would not have been an emergency one or involved the claimants.

The claimants submitted, rightly, that there was an evidential burden on the defendant to put forward evidence to demonstrate that it had some prospect of success (citing Korea National Insurance Corporation v Allianz Global Corporate & Speciality AG [2007] EWCA Civ 1066 at [14]) and that the defendant had adduced no evidence.

In the defendant’s skeleton argument, and in relation to the breaches of duty owed to mother and baby, the defendant said that it had either admitted the allegations or did not challenge them in a substantive manner and put the claimants to proof. The defendant recognised that, in light of the evidence, the court “may well reach the conclusion that a breach of the clinical duty of care owed by the Defendant to the mother had been proved by reference to the evidence now advanced. The Defendant does not seek to argue that there was no breach of duty of the duty of care owed to the mother and baby.” In relation to what the defendant described as the issue of factual causation (including paragraphs 20A and 20B of the Amended Particulars of Claim), the defendant said that it had pleaded no direct admissions or denials and:

“Once again the Claimant has now as part of this application served evidence in an attempt to prove that but for the breach of duty owed to the mother/baby the emergency transfer would not have occurred. Again given that the Defendant does not advance a positive case in this regard the Court may well be satisfied based on that served evidence that factual causation (namely that but for the clinical negligence breaches the emergency transfer would not have occurred so that the Claimant would not have been in the ambulance) will be proven.”

The defendant, however, went on to submit that, even if the court reached these conclusions, there was some other compelling reason why the issue of factual causation should proceed to a full trial. The defendant’s arguments in that respect were that the defendant did not know what case the claimants would advance as to the breach of duty owed to them. So far as the case that the claimants were primary victims were concerned it was submitted that that was highly fact sensitive and thus what constituted the breach of duty would have to be explored in detail and with care. The defendant accepted that the same considerations did not apply to the allegations of breach of duty owed to mother and baby but submitted that, in light of (i) the fact that the allegations were largely either admitted or no substantive case was advanced and (ii) the response to the Notices to Admit Facts, summary judgment was a costly and unnecessary side exercise.

There was a degree of criticism at the hearing before the Master and in his judgment about a lack of clarity in the claimants’ case and the manner in which it had been pleaded. The Master noted that the original Particulars of Claim had not pleaded the scope of the duty of care owed by the defendant to the claimants and nor had the amended version; that the particulars of negligence only related to the mother and baby; and that it was alleged that that satisfied factual causation as to the emergency transfer and the scenario of danger in which the claimants were placed. The Master was rightly critical of the fact that the exposition of the case on the duty owed to the claimants only appeared in the Reply and he observed that the breach of this duty was still not set out. These observations were, however, principally relevant to what he saw as the challenge in formulating the Defences and, as he put it, not the most encouraging start to the strike out application. That application failed in its entirety and that is not the subject of any appeal.

The allegations of breach of the duty owed to the mother and baby are contained in the paragraphs which were, initially and in their entirety, the subject of the application for summary judgment. The defendant does not on the face of the pleadings admit all of these allegations but, as set out above, in the skeleton argument on the summary judgment application accepted that the court might well find against it. The defendant expressly denied the pleaded case against it as to the basis of liability.

Against this background, the scope of the application for summary judgment and whether it extended to asking the court to find breach on a summary basis was obviously of concern to the Master. The concern, as I see it, arose from the fact that summary judgment was sought on the allegations of clinical negligence in the sense of breach of the duty owed to mother and baby and as to the consequences including the case that, but for this negligence, there would have been no need for the claimants to assist in the emergency transfer – the “factual causation” issue. The paragraphs identified in the application did not, however, extend to the paragraphs which set out the basis of liability to the claimants and the causation of the claimants’ injury. The Master noted in his judgment (at [27] and [28]) that, in his statement at paragraph 17, Mr Marshall seemed to expand the scope of the application and/or “the clinical negligence issue” to include a finding that the defendant’s clinical negligence exposed the claimants to the risk of physical injury during the transfer. The Master noted that Mr Roy had confirmed in the course of the hearing that he did not rely on that paragraph.

The characterisation of “the clinical negligence issue” in the skeleton argument was, on its face, consistent with the limitation of the issue to the matters pleaded at paragraphs 20 and 21 of the Amended Particulars of Claim but it seems to me that the use of this term, rather than reference to those paragraphs, led to or contributed to the Master’s concerns. The Master noted at [33] that Mr Roy had conceded in the course of the hearing that the way it was expressed in the skeleton argument was unacceptably broad. He recorded that Mr Roy had accepted that the best the claimants could seek on the application for summary judgment was a finding that at least one of the allegations of clinical negligence in respect of mother and baby led to the emergency transfer, that is, the one in which the claimants were involved. The “clinical negligence issue” was refined in that way.

Further, and reflecting the Master’s concerns, it seems to me that, in addressing “causal negligence”, the arguments potentially strayed into causation of the claimants’ injury which, in terms of analysis, had to be preceded by the issue of breach of duty of care owed to the claimants.

Having said all that, it also seems to me clear that the claimants’ case is that the defendant, as their employer, owed them a duty of care. Although they are matters that should have been in the Amended Particulars of Claim, the Reply expands on the definition of and scope of that duty. The way in which the case is put is that, although the particulars of negligence are breaches of the duty owed to Baby Margot and her mother, they amounted to and/or caused a breach of the duty of the employer to take reasonable care not to expose the claimants to foreseeable risk. This aspect of the claimants’ case was not the subject matter of the summary judgment application and, although it may have muddied the waters, it did not need to be addressed in order to determine the application for summary judgment on the specific paragraphs referred to in the application and the draft Order.

It is, in any case, apparent from the judgment that there was a move away from seeking summary judgment on all allegations of negligence, despite the effective concession that had been made by the defendant. The focus moved instead to the consequences in terms of the emergency transfer in which the claimants were involved.

In his judgment, the Master found:

At [44] – [45] he then said:

“44.

Whether such earlier transfer would have been an emergency transfer, however, is not clear from the materials provided. Accordingly, there seems a possibility that such earlier transfer might not have been treated as an emergency. It follows that neither am I assisted in resolving the logical consequential questions (i) when an emergency transfer might first have become required if it was not from 03.50; and (ii) whether an emergency transfer would have always independently have been required owing to non negligently caused deteriorating or problematic conditions in Baby Margot’s birth or at least because of one or more of the Defendant’s admitted acts or omissions in negligence.

45.

These latter issues are questions for expert evidence. The broad manner and scope of the Claimants’ Applications are quite insufficient as a substitute.”

The appellants argue that once the Master had found that the transfer to the hospital and the obstetrics team ought to have taken place shortly after 3.50am and at latest by 5.50am, it follows that the appellants would not have been involved in the transfer that in fact took place for the obvious reason that that transfer would not have taken place. That is what the respondent now appears to agree with in accepting that the Master could have entered summary judgment on this issue.

What the Master, however, did, in my judgment, is venture into other possible cases that formed no part of the defendant’s defence. The defendant had, on the contrary, said that it advanced no positive case in answer to the claimants’ case that, but for the defendant’s negligence, the emergency transfer that happened would not have occurred. There was, therefore, no evidence that a transfer shortly after 3.50am, or even at 5.50am, would have been a traumatic emergency transfer. Further, once it was accepted that such an earlier transfer ought to have taken place, but had not taken place because of the defendant’s negligence, no issue arose as to when a later emergency transfer might have taken place whether because of the defendant’s negligence or not.

It was against that background that the claimants asked the Master to add words to paragraph 43 of his draft judgment. The text which the claimants asked to be added was as follows:

“A transfer would have occurred earlier than 05.50 and so before the shift handover sometime after 07.25 when both Claimants commenced work.”

The purpose of that addition was to establish that the claimants would not have been involved in the transfer that ought to have taken place.

The defendants then turned the tables on the claimants arguing that the claimants had not adduced any evidence that they were not on shift at 5.50am or earlier so that they could not have been involved in any transfer at this time. It is fair to say that the pleadings did not crystallise a precise time by which the transfer ought to have taken place or make a positive averment that the claimants were not on shift at the time when the transfer ought to have taken place but nor did the Defence advance any case that the claimants were on shift when some other putative transfer, whether traumatic or not, would have taken place. If the defendant had a positive case that the claimants would have been impacted by some other transfer that is a positive case that they ought to have articulated in accordance with Part 16.5 and, if that had been put in issue and supported by evidence, it could have been responded to by the claimants.

The Master declined to add this text but instead included the recital set out in above.

For completeness I note that the claimants have since made a Part 18 Request asking the defendant to confirm the times when the claimants started work at the Unit, namely about 7.25am in the case of Ms Prudence and 1.20pm in the case of Ms Charlton, and whether it is agreed that they would not have been involved in the earlier transfer that ought to have taken place. The defendant declined to respond pending the appeal.

In these rather unusual circumstances, the argument before this court, therefore, came back to whether it was then open to the Master to refuse summary judgment on the issue as it had by then been articulated. The only issue, therefore, is whether despite the fact that, as the defendant accepts, it had no real prospect of succeeding in the defence that its failings did not expose the claimants to the transfer they experienced, there was some other compelling reason for this issue along with all others to be tried.

Under CPR Part 24, the court may give summary judgment on an issue if it considers that the defendant has no real prospect of succeeding on the issue and if there is no other compelling reason why “the case or issue should be disposed of at trial”. It is not in dispute that summary judgment can be given on an issue and issues on which summary judgment can be given are not limited to “big” issues such as duty or breach. The second limb “some other compelling reason ….” relates to disposal at trial. Where judgment is sought only on a discrete issue, there will evidently be a trial, so the question must be whether there is some other compelling reason for the discrete issue to be disposed of at the trial rather than in isolation. How the issue fits with other aspects of the case and whether carving it out might be problematic are relevant considerations.

In this case, and whatever route was taken to get there, by the time judgment was given and the consequent order was drawn up, summary judgment was being sought on the single issue that, in light of the Master’s finding on timing of the transfer that ought to have taken place, the claimants would not have been involved in any transfer. As Mr Roy submitted, it was not necessary for the words traumatic or emergency to be included – the point was that these claimants would not have been involved in any transfer. For the purposes of this appeal, that has been expressed as “but for the Defendant’s negligence the Claimants would not have been involved in the transfer that caused their injuries.” Save that that should say “allegedly caused their injuries”, the defendant accepts, as I have noted, that this is a finding the Master could have made and on which he could have granted summary judgment.

The Master, as I read his judgment, declined to grant summary judgment because he considered that there were other issues with which this particular issue had a complex interaction. At [46], he identified such interactions as the interrelationship between the admitted clinical negligence in the context of the mother and baby’s treatment, questions as to timing and need for emergency transfer, and the extent to which such needs required some or all of the claimants’ engagement in the ambulance. These matters all turn on the possible cases set out above that form no part of the defendant’s defence.

Mr Trigger recognised that the Master did not in terms state that these matters provided some other compelling reason why the issue should be disposed of at trial but submitted that they fed into his decision to record a finding of fact in a recital rather than enter summary judgment. That does not seem to me to be an answer to the appeal. If there is no real prospect of success on an issue, and no other compelling reason for the issue to proceed to trial, there should be summary judgment entered for the applicant.

I prefer to read the Master’s judgment as finding that the complex interactions to which he refers did provide such a compelling reason. That is, however, a conclusion with which, for the reasons given above, I do not agree. It follows that I find that there could not then be some other compelling reason for the trial of this issue and the granting of summary judgment was not a matter of discretion.

It follows that I allow the appeal to the extent that I will make the order sought in the Notice of Appeal. I observe, however, for the avoidance of doubt, that it remains the case that nothing in the disposal of this issue determines the claimants’ case as to the basis of liability in terms of duty owed to the claimants, breach of that duty and their case that they are primary victims of the breach of the duties owed to Baby Margot and her mother.