James Dulson v Svitlana Popovych [2021] EWHC 1515 (QB)

This decision of Deputy High Court Judge Lickley QC arose in the context of an application by a Defendant, who was a registered nurse practitioner, to resile from an admission of breach of duty made in a defence. The application was made pursuant to CPR 17.1(2) and PD 14 paragraph 7.

The key dates relating to the application were as follows:

9 July 1951The Claimant born, aged 69 at the date of hearing.
23 June 2015NICE guidelines introduced in respect of laryngeal cancer and oral cancer which provided: Consider a suspected cancer pathway referral (for an appointment within 2 weeks) for laryngeal cancer in people aged 45 and over with persistent unexplained hoarseness or an unexplained lump in the neck.
20 July 2015The Claimant’s first consultation with the Defendant at which he complained of a sore throat, a dry mouth and a neck lump.
17 August 2015The Claimant’s second consultation with the Defendant when he reported the lump had grown.
3 September 2015Date on which the Claimant’s expert alleged he should have undergone surgery.
8 September 2015The Claimant’s third consultation with the Defendant when he again reported the lump had grown.
14 September 2015The Claimant first referred to hospital
15 October 2015The Claimant first seen by a consultant
12 November 2015The Claimant underwent surgery involving biopsy of the base of the tongue, extraction of three teeth and a right modified radial neck dissection. He suffered complications of the surgery including loss of function in the right shoulder.
3 July 2018Letter of claim served. No letter of response was received.
30 August 2019Claim form issued
23 December 2019Particulars of claim served
February 2020The Defendant expert report of Nurse Wiltshire stated that the Defendant was in breach of duty on 20 July 2015.
1 April 2020The Defendant served a defence dated 26 March 2020 admitting breach of duty by the Defendant in failing to refer the Claimant on 20 July 2015 when he presented with a neck lump.
23 July 2020CCMC before Master Yoxall and permission given for the Defendant to obtain causation evidence from an ENT surgeon Mr Reece.
26 July 2020Mr Reece drew attention to local guidance that suggested a neck lump did not require referral until it had been present for 3 weeks.
9 September 2020Nurse Wiltshire, the Defendant nursing expert was asked about the local guidance and said she was not aware of it.
7 October 2020Nurse Wiltshire was sent the local guidance.
8 October 2020Nurse Wiltshire responded that on the basis of the local guidance there was no breach of duty on 20 July 2015 but still a breach of duty by the Defendant on 17 August 2015.
16 October 2020Local guidance sent to the Claimant by the Defendant and the Defendant requested an extension of time to serve causation evidence.
18 December 2020Application made to resile from admission supported by a witness statement from Ms Owen the Defendant’s solicitor. The Claimant served causation evidence, not to be opened until the Defendant served their evidence.
15 January 2021The Defendant served causation evidence stating it was not negligent for the Defendant to fail to refer on 15 July but was negligent to fail to refer on 17 August. Referral on 17 August would have resulted in surgery on 15 October (rather than 3 September with earlier referral). The Defendant expert accepted the outcome would still have been better than it was.
19 and 26 May 2021Application heard
8 June 2021Judgment given

The issue was whether the Defendant could resile from the admission made in the original defence that it was a breach of duty that the Defendant did not refer the Claimant to hospital on 15 July thereby resulting in surgery on 3 September 2015.

It is of note that:

  • The basis of resiling from the admission was that in accordance with the local guidance the Defendant would not have been in breach of duty.
  • However the Defendant was not aware of the local guidance.
  • In accordance with the NICE guidance it would have been negligent not to refer the Claimant on 15 July 2015.
  • The Defendant was in any event admitting breach of duty in failing to refer on 17 August and that later date of referral would still have resulted in a significantly better outcome than the Claimant achieved when surgery was delayed until 12 November 2015.

CPR 17 sets out the test required for amendments to statements of case. CPR 14 sets out the rules in respect of admissions and the practice direction to CPR 14 sets out in paragraph 17 the circumstances in which an admission may be withdrawn stating:

“7.1 An admission made under Part 14 may be withdrawn with the court’s permission.

7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including –

  • the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;
  • the conduct of the parties, including any conduct which led the party making the admission to do so;
  • the prejudice that may be caused to any person if the admission is withdrawn;
  • the prejudice that may be caused to any person if the application is refused;
  • the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;
  • the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the admission was made; and
  • the interests of the administration of justice.”

The judge considered the respective arguments of the parties on each of these criteria in considerable detail in paragraph 30 of his judgment.

The judge refused permission to the Defendant to withdraw the admission as:

  • The local protocol could have been obtained by the Defendant before the admission was made and it was the Defendant’s fault it was not obtained.
  • The prejudice to the Claimant was greater and included further delays.
  • In any event the point lacked any real prospect of success at trial.

On the facts of this case the refusal of the judge to allow withdrawal of the admission is unsurprising. The more surprising point is perhaps that the application should have been made in circumstances where an admission of breach of duty and causation of significant damage had to be made in any event and where the merits of trying to put back the date of surgery so as to argue the outcome would have been not quite as good as at the earlier date are less than clear. The argument based on trying to rely on guidance that the Defendant was unaware of is in any event a very doubtful one. As the judge said:

“There is no evidence the guidance was in force, adopted by the Health Centre and therefore applicable at the time. On the face of the documents supplied there is an apparent contradiction and the material is not complete. It is not suggested the Defendant was aware of the local guidance and acted in reliance upon it therefore how does Nurse Wiltshire square that with her point that competent Nurse Practitioners would follow such guidance?”