The importance of obtaining factual input early and the potential pitfalls of not doing so

Man v St George’s University Hospital NHS Foundation Trust [2024] EWHC 1304 (KB)

In this case, Master Sullivan allowed the Claimant’s application which sought to identify that witness evidence served on behalf of the Defendant was inadmissible, as it sought to deal with issues which were not properly in dispute in proceedings. The outcome was that the Defendant was unable to rely upon that evidence at Trial.

Background

This was a clinical negligence claim against the Trust, represented by another panel firm, for alleged failures by a Nurse to adequately deal with a left lower leg infection. It was alleged, amongst other things, that the Nurse failed to heed that the Claimant was in ‘exquisite left lower leg pain’. Whilst admissions were made regarding a failure to make a referral, the Defendant put the Claimant to proof in respect of all other issues not supported by the contemporaneous medical records. 

The Trust later served a witness statement from the Nurse in question, which positively denied that the Claimant was in extreme pain.

Claimant’s Application

The Nurse’s statement identified that she could not recall the Claimant communicating that she was in extreme pain, and that had she observed her to be visibly distressed from pain, she would have recorded this and the absence of such a record suggests that this was not the case.

The Claimant argued that as the issue of extreme pain had not been positively denied within the Defence, and contrary to CPR 16.5, it was not the case where the Defendant could say that they could not admit or deny the allegation as there was no good reason why they could not have obtained factual input from the Nurse prior to pleading a Defence. The Claimant’s case therefore was that the Defendant had failed to deal with the allegation and so it should be taken as effectively admitted. The Claimant argued that if the Defendant wished to put in issue that the Claimant complained of extreme pain, then they would need to apply to amend their Defence, which they had not done and as such, the witness statement of the Nurse should not be permitted as it did not go to matters in dispute.

The Defendant resisted this on the basis that the Defence had specifically put the matter in issue by saying that the Claimant must prove all matters which are not consistent with the medical records and as the Claimant had not done so, it was highly appropriate for the Nurse to deal with this in her witness evidence.

In respect of the Nurse’s statement, Master Sullivan did agree that the statement did deal with matters that were not properly in issue on the pleadings. The Court held that had the Defendant spoken to the Nurse before pleading the Defence, they would have been able to properly put it in issue. The Court referred to the commentary in the White Book at 16.5.2 which says “The language of non-admission should not be used and a practice of pleading numerous non-admissions can only be justified where a defendant is truly unable to admit or deny an allegation and so requires the Claimant to prove it. Rule 16.5(1) raises a positive duty for a defendant to admit or deny pleaded allegations which he or she is able to do so and so to prevent merely a ‘stonewalling defence with indiscriminate non-admissions’ (per Lord Justice Henerson in SPI North Ltd v Swiss Post International (UK) Ltd [2019] EWCA Civ 7).

Whilst that case went on to say there was no general obligation on a defendant to make reasonable enquiries of third parties at an early stage of litigation, Master Sullivan held that this case was different as the Nurse was the very practitioner for whom was alleged to be negligent and it was not enough for an NHS Trust in a clinical negligence case to say that they have been unable to ask without good reason. In circumstances where it appeared the Nurse had made a note relatively early on in investigations, there appeared to be no good reason that she could not be asked for input on the allegations against her.

Summary and Lessons Learnt

This case highlights the importance of ensuring that witnesses are contacted and involved from the outset of a claim (where possible) to ensure as accurate a pleading as possible, and also serves as a warning when drafting pleadings that even where there are admissions, where there remain issues in dispute, these are positively pleaded.

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