PI Brief Update

Episode 2, A New Hope: Resiling from admissions of breach under CPR r.14.5 - Michael Brooks Reid, Temple Garden Chambers

26/07/26. Michael Brooks Reid discusses the decision of Duncan Atkinson KC, sitting as a Deputy High Court Judge, in Ramsdale v Ditta & Ors [2026] EWHC 544 (KB).

Facts

The claimant (“C”) brought clinical negligence proceedings arising from failures of diagnosis and management of chronic rhinosinusitis.

The fifth defendant (“D5”), an advanced nurse practitioner, admitted breach of duty pre-action and in her defence. That admission was made on the advice of an expert who later became unavailable. D5’s replacement expert took the contrary view, and some ten months later, an application was made to resile from the admissions.

Law

CPR r.14.5 provides:

“In deciding whether to give permission for an admission to be withdrawn, the court shall consider all the circumstances of the case, including—

(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(d) any prejudice to any person if the admission is withdrawn or not permitted to be withdrawn;

(e) what stage the proceedings have reached; in particular, whether a date or period has been fixed for the trial;

(f) the prospects of success of the claim or of the part of it to which the admission relates; and

(g) the interests of the administration of justice.”

In Edwards-Tubb v JD Wetherspoon plc [2011] 1 WLR 1373 (“Edwards-Tubb”), permission to rely on a new expert was made conditional upon disclosure of the old expert's report. That did not override privilege directly, but the court fixed waiver of privilege as “the price” of the court's leave, to guard against expert shopping and to ensure the trial court has all the available evidence.

Decision

The judge found D5’s conduct to have been “deplorable and inexcusable.” D5 had failed to alert C to a possible change of position over some ten months that included two case management conferences and serving an amended defence maintaining the admissions.

Conduct of the parties was not, however, the sole factor to consider. The new expert's opinion was treated as new evidence under factor (b), obtained through no fault of the defendant once her original expert ceased to practise.

On prejudice — factor (d) — the claimant would suffer some disadvantage, tempered by the trial remaining six months away and by his already having expert material to challenge the new report. Refusing the application, conversely, risked real prejudice to D5, unable otherwise to contest a central negligence allegation despite credible, independently obtained expert support.

The trial date itself was not at risk under factor (e), only pre-trial preparation would be affected.

Weighing these factors together, the judge concluded the interests of justice under factor (g) favoured permitting D5 to contest the allegations against her.

Applying Edwards-Tubb by analogy, the judge made it a condition of permission that the defendant disclose the report of her old expert, so that C had the whole of the available evidence on the issue rather than only the favourable part.

Comment

Under CPR 14.5 the court must consider “all the circumstances of the case”, including the specific factors cited at (a)-(g). Had the conduct of the parties been the sole factor, the judge held that the application would have failed. But when the parties’ conduct was weighted alongside the other factors favouring D5, even conduct which was condemned in the strongest terms was insufficient to negative the interests of justice in allowing D5 to resile. Interesting, too, is the judge’s application of Edwards-Tubb, requiring D5 to waive privilege on the old report as a condition to granting her permission to resile.

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