This article is published as part of Capsticks’ Insurance Review 2023.  

In Somoye v NW Anglia NHSFT [2023] EWHC 191 (KB), the defendant had made admissions on breach and causation before an inquest which was adjourned in 2020 and again at a pre-inquest hearing in 2021. Later it sought to withdraw the admission on causation on the basis that its expert’s opinion had changed at the inquest.

Master Sullivan refused the application. The decision was based on the prejudice to the claimant in allowing the withdrawal being greater than that to the defendant in refusing it. Factors included the theory not being ‘new’. It had been canvassed by the expert in a 2018 report. His opinion had simply changed as to which theory was the most like on balance of probabilities. The claimant’s opportunity to investigate a civil claim fully had been affected as the admission led to an agreement that factual witnesses would not be called at inquest.

Comment

The court has a discretion under Practice Direction 14 to permit an admission to be withdrawn. However, in this case the Master considered that the balance of prejudice was in the claimant’s favour. Whether evidence is ‘new’ it is likely to be interpreted strictly and defendants will need to demonstrate more than an expert favouring a new theory in order to have a reasonable prospect of the discretion being exercised in their favour.

Insurance Review 2023

This article is part of Capsticks' Insurance Review 2023.

Read the other articles featured in this publication below:

• Spotlight on three appeal court decisions
• Appeal decisions pending
• Fundamental Dishonesty – ‘good days and bad days’ defence rejected
• Two important changes to the fixed recoverable costs regime
• Defendants’ ability to recover their costs from claimants extended
• Pre inquest admissions fatal to defendant’s case
• Personal Injury Discount Rate (PIDR) review update

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To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Ed Mellor or Sarah Bryant or Cheryl Blundell.