Permission granted to withdraw an admission made pre-action and in the defence

Richard Smith

Ramsdale v Ditta and others [2026] EWHC 544 (KB)

In this case the Claimant seeks damages against a number of Defendants alleging failures of diagnosis and management of chronic rhinosinusitis. He saw a number of medical professionals between January and April 2018 complaining of increasing sinus problems, which appear not to have been escalated to secondary care. The Claimant collapsed on 5th April 2018 and was taken to hospital, where a large abscess was found on his brain. This required treatment by several surgical procedures and it is claimed that the Claimant was left with a brain injury which would have been avoided with earlier intervention.

This post concerns an application made by the Fifth Defendant, an Advanced Nurse Practitioner, to resile from admissions that had been made on her behalf in her Letter of Response and in her Defence to the claim. The application came before Duncan Atkinson KC sitting as a Deputy Judge of the High Court.

The admissions in question were of breach of duty. The judgment does not expressly discuss causation, but it can be inferred that this remained in dispute. The position of the other Defendants is not made clear in the judgment. The relevant chronology is as follows:

4th November 2022 Letter of Response from the Fifth Defendant in which breach of duty was admitted for failing to consult notes of an earlier consultation.

25th August 2023 Defence of the Fifth Defendant in which breach of duty was admitted as above, and also for failing to refer the matter to a General Practitioner for further discussion at the time of the consultation. The Defence was drafted with the benefit of a written report from an expert Nurse, Fiona Moss, with whom there had been a conference.

7th May 2024 The Fifth Defendant’s solicitor emailed other parties to inform them that there may be an issue relating to Ms Moss, in that she had withdrawn from undertaking medio-legal work.

16th July 2024 The Fifth Defendant’s solicitor emailed the other parties to say that a new expert had been instructed, but no report had been received at that point.       

Late July 2024 The draft report from the new expert, Mr Major-Preece, was received by the Fifth Defendant’s solicitors.

24th July 2024 Case Management Conference – no issue was raised on the part of the Fifth Defendant in relation to the expert, or in relation to admissions made. It is unclear whether the report of Mr Major Preece had been received by the Fifth Defendant’s solicitors prior to this hearing, but at the very least the fact that it had been commissioned was known about.

29th October 2024 The witness statement of the Fifth Defendant was served.

December 2024 A further version of Mr Major-Preece’s report was provided to the Fifth Defendant’s solicitors.

3rd December 2024 Second CMC – again no issue raised by the Fifth Defendant as to her expert, the content of his report, or the possibility of resiling from admissions. Again, it is not clear whether the latest draft of the report was available prior to this hearing.

28th February 2025 Amended Defence from the Fifth Defendant which maintained the previous admissions.

16th May 2025 Service of Mr Major-Preece’s report on the Claimant with an invitation to consider a draft application to resile from the admissions made.

23rd May 2025 Application to resile made.

28th January 2026 Hearing of the application.

Trial is listed to begin on 15th June 2026.

The Fifth Defendant’s argument in support of her application was, in essence, that

  • The admissions had been made on the basis of the expert evidence of Ms Moss.
  • The Fifth Defendant had no option but to instruct a new expert when Ms Moss withdrew from medico-legal practice. It is not clear in the judgment but can be inferred that there were remaining issues of breach and/or factual causation which needed to be addressed.
  • The new expert, Mr Major-Preece, provided an opinion which supported a denial of the admitted breach allegations, in that his position was that the Fifth Defendant’s conduct of the consultation with the Claimant was in line with reasonable nursing practice.
  • Therefore, the Claimant was in possession of new evidence which was not available when the admissions were made and she should be permitted to rely on it.

The circumstances which the Court should consider before permitting a Defendant to resile from an admission are set out in CPR rule 14.5. This non-exhaustive list (which was previously set out in the Practice Direction, and derives from earlier cases) is as follows:

  • (a) the grounds for seeking to withdraw the admission;
  • (b) whether there is new evidence that was not available when the admission was made;
  • (c) the conduct of the parties;
  • (d) any prejudice to any person if the admission is withdrawn or conversely is not permitted to be withdrawn;
  • (e) what stage the proceedings have reached and in particular, whether a date or period has been fixed for the trial;
  • (f) the prospects of success of the claim or the part to which the admission relates; and
  • (g) the interests of the administration of justice.

The Judge considered those circumstances, and the parties’ submissions in relation to each of them, in turn. The Claimant’s main arguments were that the Fifth Defendant was “expert shopping”, had conducted the defence poorly in terms both of the evidence obtained and the timing of the application and had obtained flawed evidence. It was said that the Claimant would be caused significant prejudice if the Fifth Defendant were permitted to resile from her admissions.

The Judge allowed the Fifth Defendant’s application, on condition that she disclosed the report of Ms Moss. While acknowledging the importance of parties making admissions in litigation, and their counter-parties being able to rely on them, he considered that balancing the relevant issues favoured allowing the Fifth Defendant to resile. This was the case notwithstanding that he was very critical of the conduct of the Fifth Defendant and her solicitors. He said this:

“25. I agree with the characterisation by Mr Bishop KC that the delay on the part of those acting for this defendant in relation to the alerting of others to this issue has been deplorable and inexcusable. If that criteria were the sole criteria upon which to judge whether I should permit this defendant to resile from these admissions, then I would have no hesitation in refusing her application. But equally, it is clear that that is not the sole criteria to be applied. Whilst it is always a matter of balance, in any case as to how much prominence should be given to any particular criteria, in my judgment, here, particular priority needs to be given to the question of whether there has been prejudice occasioned by what has occurred.

…

35. In relation to the instruction of Mr Major-Preece, the concern, in my judgment, is not that he was instructed at all. Given the issue that arose in relation to Ms Moss, it was clearly appropriate for a second expert to be instructed. The concern more properly is as to whether, and to what extent, efforts were made to limit that which he was being asked to consider. This relates to whether he was being asked to consider matters that had already been resolved, not just by Ms Moss but by the defendant herself, against the background of the evidence received from Ms Moss as to breach of duty.

36. This is not, in my judgment, “expert shopping” as properly defined but it is a cause for concern. The result, however, of that is that evidence is now available to this defendant that was not available to her at the time that she made admissions, and which has a direct bearing on whether those admissions should have been made. As I have already made clear, I consider that the conduct of those acting on behalf of the defendant after Mr Major-Preece was instructed and his first report received, is a matter of very real concern. They have exhibited significant and inexcusable delay in raising the matter with others, for example, through two case management conferences, through an application to delay the service of the amended defence, and through otherwise alerting others to what was to come.”

Notwithstanding those criticisms, the Judge determined that the prejudice that would be suffered by the Claimant would not be great. He had expert evidence which addressed the points that the Fifth Defendant sought to put in issue and the trial was almost six months away, which the Judge felt was adequate to address the change of case and prepare for trial. The Judge stated that leading counsel representing the Claimant at the hearing had demonstrated that there were arguments to undermine the change of stance and the basis of the opinion of Mr Major-Preece. Conversely, if the Fifth Defendant was not permitted to rely on that expert evidence she would be prevented from contesting a central issue in the case.

Thus the Judge determined the application primarily relying on the balance of prejudice between the parties.

In some ways this result is surprising. The Judge recorded some serious concerns about the conduct of the Fifth Defendant in the approach to the application, but ultimately took a generous position in terms of allowing her to fully ventilate the defence with which the new expert evidence had provided her. Concerns over the delay in bringing the application, or drawing its possibility to the Claimant’s attention were described as deplorable and inexcusable; and yet the Judge seems to have been persuaded that the fact that there was still enough time prior to trial for the Claimant to deal with it.

The most acute concern may be thought to be obtaining and seeking to rely on expert evidence on breach of duty after the admissions had been made. No explanation was given as to how this came to pass and why these issues had not been put off limits in Mr Major-Preece’s instructions. It raises a suspicion, at least, of underhand tactics. Nevertheless, rather than rule that this conduct meant that the Fifth Defendant should be bound by her admission, the Judge was persuaded that the Trial Judge should consider the available evidence in full. This approach may have been influenced by the skilled dissection of that evidence by Leading Counsel for the Claimant in responding to the application, paradoxically helping the Fifth Defendant.

The Judge did not cite any case law on the approach to the exercise of his discretion under rule 14.5. The rule as drafted came into being in 2023, but the criteria set out were previously included in Practice Direction 14 and, prior to that, derived from case law such as Sowerby v Charlton [2005] EWCA Civ 1610, meaning that there are plenty of examples to draw upon. Given the broad discretion afforded under rule 14.5 previous cases are of limited assistance in any event, but the Judge’s decision in this case is in line with the approach that, if there is a sufficient reason to withdraw the admission, then it will be permitted. The reason need not be that new evidence has come to light – see e.g. Woodland v Stopford [2011] EWCA Civ 266, where a re-evaluation of the merits by the solicitor was enough – but where there is such evidence the applicant’s position will be stronger – see e.g. West v Bedfordshire Hospitals NHS Foundation Trust [2024] EWHC 1744 (KB). The Judge is not required to approach the application as if it were seeking relief from sanction using Denton principles. The approach that a Judge will take in any given case is unpredictable as there are examples of permission to withdraw an admission being refused on the basis of the application not being made promptly and the claimant having relied on the admission for some time – e.g. Clark v Braintree Clinical Services [2015] EWHC 3181 (QB). It is overwhelmingly likely that, if no good explanation is given, then the application will be refused – e.g. XL Catlin Insurance Co UK Ltd v Linkham Services Ltd [2021] EWHC 3551 (Comm).

Applicants should also consider whether successfully withdrawing an admission will amount to anything other than a pyrrhic victory, as in Woodland ([2015] EWHC 273 (QB)), or something of real substance. Whether the suspicion is borne out that the position of the Fifth Defendant in Ramsdale falls into the latter category remains to be seen.

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