An inquest, by definition, is a fact-finding investigation into the death of an individual. It aims to answer four key questions; who died, where and when they died, and - the most difficult question – how they died.
Whilst inquests are intended to be an inquisitorial rather than adversarial process, the effect of admissions pre-inquest can have an adverse and permanent effect on any subsequent civil claim.
The recent case of Somoye v North West Anglia NHS Trust [2023] relates to a civil claim following an inquest hearing and explores the consequences of making pre-inquest admissions by a defendant party.
In this case the defendant NHS trust made an application to withdraw an admission of liability on the basis that the admission, which was made before the inquest, was no longer valid due to the emergence of new evidence. The attempt to resile from the admission was ultimately rejected by the court.
The facts of the case were that Dr Oluyinka O Somoye attended North West Anglia NHS Trust on 28/02/18 for a myomectomy (surgery to remove fibroids from the wall of the womb), and was discharged on 03/03/18. Following her return from hospital Dr Somoye suffered a seizure and was readmitted to hospital on 07/03/18 at 04:15. At 13:00 Dr Somoye suffered a cardiac arrest and despite efforts to resuscitate, very sadly she died at 14:52 the same day.
The trust conducted a Serious Incident Investigation which identified various issues with the care provided to Dr Somoye, precipitating the case being referred to the coroner.
Following a post-mortem conducted by Miss Wright (pathologist) the cause of death was declared as 1a multiorgan failure, 1b abdominal sepsis, 1c small bowel ileus and 2 uterine myomectomy.
The coroner requested expert evidence from Professor Winslet (colorectal surgeon), who provided a report stating that Dr Somoye had aspirated during cardiac arrest, and that had this been treated with nasogastric decompression, the death could have been avoided. Accordingly, the NHS trust made pre-inquest admissions. The inquest was listed for 25/03/20 and the admission of liability from the NHS Trust was sent on 24/03/20, however the inquest was ultimately adjourned due to the Covid-19 pandemic.
Following the easing of Covid-19 restrictions, a second pre-inquest hearing was held on 21/04/21 and the trust re-affirmed its admission on 20/04/21.
At the substantive inquest hearing, Miss Wright (who had carried out the post-mortem) was called by the coroner. She disagreed with the evidence given by Professor Winslet and said that in her view the cardiac arrest was caused by hyperkalaemia (excessive levels of potassium in the blood) due to multiorgan failure and as such nasogastric decompression would not have prevented the death. Consequently, Professor Winslet changed his opinion and confirmed he could now not say with certainty what had caused the cardiac arrest, and ultimately the Coroner found that they could not determine on the balance of probabilities if interventional treatment would have altered the outcome.
The claimant issued proceedings and made an application for judgment on the admissions made by the trust pre-inquest.
The trust made an application to withdraw the admissions on the basis that Professor Winslet had changed his views at the inquest and there was now further evidence available, obtained by the defendant from experts in cardiology and intensive care, which gave rise to a good defence of the claim. Furthermore, the defendant confirmed that the application for withdrawal was only pertaining to admissions relating to causation and not breach of duty.
Master Sullivan set out the legal test for withdrawal of a pre-action admission in accordance with CPR Practice Direction 14 para 7.2.
In applying the relevant CPR provision, Master Sullivan considered the criteria against the facts of this case:
(a) “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 admission was made”
Master Sullivan acknowledged that whilst Professor Winslet had ultimately changed his mind at the inquest, in his report he had considered two possible theories as to the cause of death. These alternatives were in evidence at the time the admissions were made. As such, the court concluded that the trust’s more recent expert reports could not strictly be classified as “new evidence”.
(b) “The conduct of the parties, including any conduct which led the party making the admission to do so”
The claimant argued that the trust had ample opportunity to investigate the case before the inquest and whether admissions should be made in the circumstances. The claimant also argued that the trust decided to make the admission pre-inquest in order to limit the recoverable costs of the claimant in respect of the inquest, which was confirmed by the trust’s reference to Veevers v Greater Manchester Fire and Rescue Sevice [2020] in the pre-action correspondence.
Master Sullivan agreed with the claimant’s argument that a defendant is expected to take independent medical and legal advice before making an admission, especially where an expert, not instructed by the defendant, raises issues which explore possible arguments as to causation which would serve as a defence to the claim.
(c) “The prejudice that may be caused to any person if the admission is withdrawn” and
(d) “The prejudice that may be caused to any person if the application is refused”
Both the trust and the claimant argued they would suffer significant prejudice if the admission was withdrawn/not withdrawn respectively. Master Sullivan acknowledged that if she did not allow the withdrawal of the admission the trust would not be able to dispute legal liability. This was mitigated by the fact they could dispute the extent and consequences of the harm and therefore the refusal to permit the admission to be set aside would not have an unduly prejudicial effect on the trust.
(e) “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”
In this case, the trust’s application had been made fairly early in proceedings, but this made no real difference in the circumstances as around five years had passed since the incident and the trust’s admission, and there had already been an inquest.
(f) “The prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation which the admission was made”
Master Sullivan accepted that the trust did have a real prospect of success as to causation based on allegations arising from 07/03/18 i.e. when Dr Somoye was re-admitted to hospital following discharge having suffered a seizure at home. However, Master Sullivan considered there was no evidence available which dealt with causation relating to the earlier substandard treatment on 03/03/18 i.e. when Dr Somoye was discharged from hospital following the myomectomy.
It was also stated that, whilst Professor Winslet had concluded the earlier substandard treatment was not causative of the subsequent death, this evidence pre-dated the repetition of the trust’s admission, and therefore this evidence should have been considered when the admission was made.
(g) “…the interests of the administration of justice”
The trust argued that it could not be said justice would be brought into disrepute if the court allowed the application for withdrawal to be made because it had cogent evidence at an early stage in proceedings. The claimant argued that it would not be in the interests of justice to allow the application, as the claimant would now need to incur further costs to investigate matters considered at the inquest in the knowledge that they may not be able to recover their costs.
Ultimately, Master Sullivan allowed judgment for the claimant on liability, with quantum to be assessed. He confirmed that the trust could raise arguments as to the extent of injury, life expectancy and loss as long as they did not raise an argument inconsistent with some injury (including death) being caused by the negligence.
Although the defendant’s application to withdraw a pre-inquest admission failed, admissions of liability pre-inquest can be beneficial to a defendant party for a number of reasons, such as:
(1) The costs incurred by a claimant in attending an inquest may not be recoverable where liability is no longer an issue. Therefore it can be sensible for a defendant party to make admissions of liability. This can remove the need for the potential claimant party to attend an inquest, in order to further explore the facts relating to legal liability.
(2) Full admissions can further restrict the claimant’s costs incurred at the pre-action stage, as investigations as to liability do not need to be carried out, and instead the parties can save time and expense by focusing on settling damages etc.
(3) Admissions can save court time as witnesses will not be required to address issues where admissions have been made, thereby reducing the overall hearing length.
(4) Admissions at an early stage can limit the additional distress for a family, and potential adverse publicity to the defendant parties.
Notwithstanding the potential benefits to the defendant parties listed above, Somoye highlights the detrimental effect of early admissions on any future civil litigation. It confirms that pre-inquest admissions are binding in a civil claim, despite the fact an inquest returns a verdict inconsistent with that admission. The case underlines the fact that inquests and civil claims have different functions.
Somoye exemplifies that a careful balance needs to be struck between considerations for limiting the claimant’s costs, and ‘taking the heat’ out of the dispute, with the risk for potential prejudice to the defendant’s position should evidence be clarified or altered upon scrutiny at the substantive inquest hearing.
In considering the merits of making pre-inquest admissions, the case suggests it may be prudent for a defendant to obtain their own independent expert evidence rather than rely on the coroner’s evidence. The defendant’s expert should then consider the coroner’s expert evidence before any admissions are made.
In addition, Master Sullivan was somewhat critical of the time taken by the defendant in making an application to withdraw the admission and, as such, any application should be made as soon as possible. In this case, the inquest concluded in June 2021 with the trust advising the claimant they were intending to seek expert evidence in March 2022. The application was then made in July 2022. Arguably, being alive to a potential forthcoming claim, the trust could have explored further expert evidence a year earlier when the inquest concluded.
The take home message is that, whilst defendants should be alive to the benefits of making pre-inquest admissions, there needs to be caution exercised. A defendant should spend further time exploring their own expert evidence before making such admissions, given the potential difficulties which arise when circumstances change after the admissions are made.
Author:
Chloe Hopkins - Solicitor
Email: CHopkins@keoghs.co.uk
Healthcare and Sport
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