Simmons v City Hospitals Sunderland NHS

The defendant has applied to vary an order dated 15 November 2015 by which judgment was entered for the claimant by consent in relation to certain admissions of breach of duty and causation made in the defence. The order expressly recorded that other issues of liability remained to be assessed. By this application the defendant seeks to withdraw some of the admissions made in its defence and to vary accordingly the order giving judgment based on those admissions.

The claim alleges negligence by staff of the defendant’s hospital following the claimant’s admission to hospital on 18 October 2009 when she was delivered of a baby by emergency caesarean section. Although she was discharged home on 20 October 2009, the wound did not heal and in the following days the wound broke down. However, it was not until 6 November that any action was taken by the defendant to treat the problem. On that date the claimant underwent debridement of the wound based on a diagnosis of necrotising fasciitis. That procedure did not resolve the problem and she underwent six further operations during the course of that month involving the removal of further tissue from the wound. She was ultimately discharged home on 23 November 2009.

However, she went on to develop a recurrent incisional hernia, presumably as a result of the repeated operations which she had undergone, for which she needed surgical repair in September 2011. On that occasion a diagnosis was made of pyoderma gangrenosum, a different condition which also causes tissue to become necrotic. The claimant also developed pulmonary embolism, which was diagnosed on 12 October 2011.

This action was begun in 2014. In the letter of claim and particulars of claim the claimant contended that the diagnosis of necrotising fasciitis should have been made much sooner – on 26 October 2009. It is the claimant’s case that, had that diagnosis been made sooner than it was, necrosis would not have spread and the claimant would not have undergone repeated surgery in the way that she did in November 2009. It is further contended that in those circumstances the claimant would not have suffered incisional hernia and would not then have developed pyoderma gangrenosum and pulmonary embolism two years later in 2011.

In its letter of response and defence to the claim the defendant made the admissions on which judgment was subsequently entered. In particular, the defendant admitted that necrotising fasciitis ought to have been suspected by 29 October 2009; and, further, that, had necrotising fasciitis been diagnosed then, the claimant would not have suffered a further progression of that condition but would, on the contrary, have undergone surgery which would have prevented further necrosis and avoided incisional hernia. The defendant did not, however, admit that its negligence had caused the subsequent pyoderma gangrenosum or pulmonary embolism.

After the defence was served in late March 2015 there was correspondence between the parties’ solicitors in May and June in which the claimant’s solicitors suggested that it was appropriate for the defendant to submit to a judgment based on the admissions made in the defence and the defendant agreed in principle to such a course. It was agreed that there would at the same time need to be directions given for the determination of the remaining issues of liability – the principal issue being the causation of the pyoderma gangrenosum and pulmonary embolism which were diagnosed in 2011.

In connection with those remaining issues the defendant’s solicitors instructed an expert dermatologist in August 2015, Dr McGregor. She gave a preliminary opinion in September 2015. She expressed the view that the pyoderma gangrenosum was not caused by the earlier necrotising fasciitis. More unexpectedly she also suggested that the original condition diagnosed as necrotising fasciitis in November 2009 might not have been necrotising fasciitis at all, but might in fact have been an earlier occurrence of pyoderma gangrenosum. Her opinion at this stage was provisional, dependent on seeing certain microbiology and histology records relating to the claimant. It also plainly needed to be considered by the other experts previously instructed by the defendant who had been advising on the basis that the claimant had indeed suffered from necrotising fasciitis in October/November 2009.

A case management conference had been listed for 19 November 2015. At that point, although the defendant had received Dr McGregor’s provisional opinion, it did not feel able to adopt that opinion as a positive case. On 19 November 2015 the defendant consented to the entry of judgment in the manner that I have already described. An order was made for disclosure, but otherwise the question of what further directions should be made was adjourned to a further hearing.

In January 2016 a conference was held between the defendant’s legal advisors and all the experts instructed by the defendant at which, according to a witness statement made by the defendant’s solicitor, Ms Calder, the experts agreed that the claimant had in fact suffered from pyoderma gangrenosum in 2009. In the light of that view the claimant was informed on 3 February 2016 that the defendant intended to apply to vary the order by which judgment had been entered and to withdraw some of its earlier admissions.

There was a hearing before Master Cook on 8 February 2016. At that hearing Master Cook made an order requiring the defendant to serve the report of its dermatology expert. There was then to be a stay for a period of three months to enable the claimant to consider the implications of that evidence. The defendant was then required by 27 May 2016 either to issue an application to withdraw admissions and vary or set aside the judgment or to apply for the matter to be set down for a further case management conference.

In accordance with that order the report of Dr McGregor was served 22 February 2016. In the report she states her opinion that the condition thought to be necrotising fasciitis in 2009 was in fact the first episode of pyoderma gangrenosum. She gives reasons for that opinion which on their face and in the absence of any contradictory opinion appear to be convincing. Amongst other things she makes the point that pyoderma gangrenosum and necrotising fasciitis present in a similar way and that it can be difficult to distinguish between them. She expresses the view that it is inherently unlikely that the claimant should have suffered separately following surgery from these two conditions, which are both rare and entirely unrelated to each other. It is far more likely, she suggests, that the claimant had two episodes of the same condition, namely pyoderma gangrenosum. She explains that the treatment for the two conditions is quite different and that the treatment for necrotising fasciitis can, in fact, worsen the condition of pyoderma gangrenosum and vice-versa. Necrotising fasciitis is thought to be due to polymicrobial infection and would, therefore, be expected to respond to antibiotics and to be improved by debridement. However, neither of those things happened in 2009. That is consistent with Dr McGregor’s opinion that the condition which the claimant had then was in fact pyoderma gangrenosum – that being an autoimmune disease which is appropriately treated by steroids.

If judgment had not been entered and the application before the court was simply one seeking to withdraw admissions, the position would, in my view, be comparatively straightforward because the circumstances militate heavily in favour of allowing the admissions to be withdrawn – the relevant admissions being that necrotising fasciitis ought to have been diagnosed sooner in 2009 and that, had that happened and surgery taken place sooner, subsequent operations would have been avoided. As Mr Whitting QC for the defendant points out, the proceedings are still at a relatively early stage, having not progressed as yet beyond statements of case and disclosure. In particular, the stage has not yet been reached when expert evidence (or for that matter factual evidence) is due to be served and, indeed, no directions for the service of evidence have yet been given.

Furthermore, little if anything happened in the proceedings between the time when the admissions were made in the defence and judgment was then entered on the basis of those admissions and the time which the defendant gave notice that it wished to withdraw the admissions in the light of Dr McGregor’s evidence.

In addition, despite having had an opportunity to do so, the claimant has not, as yet at least, placed before the court any opinion to contradict that of Dr McGregor, so the case which the defendant wishes to advance appears on the basis of the information presently available to have significant prospects of success.

A substantial difficulty which the defendant needs to overcome, however, arises from the fact that a judgment has indeed been entered. It is common ground that, although that judgment relates to only part of the claim, it is a final judgment in the sense that, subject only to any appeal, it finally decides issues of liability in the action. The application to vary the court’s order is made under CPR 3.1(7) which gives the court power to make an order to vary or revoke an earlier order. It is established by authority, however, that that power ought not to be exercised in a way which would undermine or detract from the important principle that final orders are indeed intended to be final and that the only way to set aside a final order is ordinarily by way of an appeal.

That CPR 3.1(7) should not be used to circumvent that important principle is made clear by the decision of the Court of Appeal in Roult v North West Strategic Health Authority [2010] 1 WLR 487. In Kojima v HSBC Bank plc [2011] EWHC 611 (Ch) Briggs J (as he then was) held that the principle was applicable where, in that case as in this, judgment had been entered on the basis of admissions with regard to part of the claimant’s case.

Mr Hopkins QC for the claimant submits that, as a general rule and in the light of those decisions, the jurisdiction under CPR 3.1(7) ought not to be exercised unless since judgment has been entered new evidence has become available which would be admissible on an appeal in accordance with the well-known principles first stated in the case of Ladd v Marshall [1954] 1 WLR 1489. Those principles generally require three conditions to be fulfilled before fresh evidence will be received on an appeal. The conditions are: (1) that the evidence could not have been obtained with reasonable diligence before the judgment under appeal was given; (2) that the evidence would probably have had an important influence on the result in the case; and (3) that the evidence is apparently credible. It is plain on the material before the court that the second and third of those conditions have been satisfied in this case, but Mr Hopkins submits that the defendant has failed to show that the evidence contained in Dr McGregor’s report on which it now seeks to rely could not have been obtained with reasonable diligence before the defendant consented to judgment.

I see force in the complaint made by Mr Hopkins that, in circumstances where the defendant is relying on communications between its solicitors and expert which took place in the period shortly before judgment was entered and has, it would seem, waived privilege in relation to those communications, the relevant comminications ought to have been put in evidence before the court. Nevertheless, there is no reason to doubt that Ms Calder has given an accurate summary of those communications. In any event, I am satisfied that the defendant has not failed to exercise reasonable diligence in obtaining the evidence from an expert dermatologist on which it now wises to rely.

As Mr Whitting pointed out, these proceedings have not yet reached a stage when any directions with regard to expert evidence have yet been given. More importantly, in the way that the issues arose on the statements of case, the need for any dermatological evidence appeared to be of only secondary importance. Until Dr McGregor suggested a different possibility, both parties were proceeding on the basis that it was a matter of fact that the claimant had suffered from necrotising fasciitis in 2009. On that basis the only relevance or potential relevance of evidence from a dermatologist was in relation to one aspect of causation – being the question whether the pyoderma gangrenosum diagnosed in 2011 was or was not a consequence of the defendant’s original negligence. There was no reason to anticipate that Dr McGregor’s evidence would cast an entirely new light on the events in 2009. Nor do I consider that the defendant can be criticised for not immediately adopting Dr McGregor’s provisional opinion as a ground for seeking to withdraw its previous admissions in the case and for instead first ensuring that all the experts involved were consulted and necessary records obtained and that a considered view was taken as to whether the change of case was warranted.

I see much more force in a different argument made by Mr Hopkins that this is not a case in which new evidence has become available because at the time when judgment was entered Dr McGregor had already expressed the view which she has now set out in her report dated 22 February 2016. Counsel for the claimant made the point in their skeleton argument that it was open to the defendant to inform the claimant and the court of the new issue which had arisen and to seek to postpone consenting to a final judgment in those circumstances.

Nevertheless, whilst I see force in that argument, I do not consider that it ought in justice to prevent the order made on 15 November 2015 from being varied. In the first place there is, in my view, a material difference between a provisional opinion of the kind which Dr McGregor had expressed before that order was made and the opinion now shared by the defendant’s other experts which the defendant has subsequently adopted and put forward as its case.

I also think it highly relevant that the admissions which the defendant is seeking to withdraw relate to issues which are inextricably intertwined with issues which on any view remain in dispute. There remains an issue as to the cause of the claimant’s pyoderma gangrenosum. I do not see how it can be right to conduct a trial of that issue on a basis which, if Dr McGregor’s opinion is correct, is factually false. I note that in the recent case of Atkins v Cooperative Group Ltd [2016] EWHC 80 (QB) similar considerations arose where in that case an appeal had been brought from an earlier judgment by consent. Supperstone J held, as I have in this case, that evidence which the defendant subsequently sought to adduce on appeal could not have been obtained with reasonable diligence at the time when the judgment by consent was given. But he also gave as an additional reason for holding that it was just to allow the earlier order to be varied, the fact that it could not be appropriate for the experts to be required to express opinions as the case went forward on a false factual basis. In my view, the same is applicable here.

All the considerations which make it just for the defendant to be allowed to withdraw the admissions pursuant to CPR 14.1(5) are also relevant – in particular, the points that I made earlier that this is still an early stage of the litigation and that the claimant is not prejudiced by the withdrawal of the admissions because the action has not been progressed on the basis of them.

When the circumstances are considered as a whole, and particularly in the light of the fact that the case which the defendant now wishes to put forward seems to me to be inextricably linked with issues which on any view remain to be decided, I think it right to exercise the court’s discretion to allow the order to be varied in the way proposed.