Claim No. KB-2023-001572 |
KING'S BENCH DIVISION
B e f o r e :
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(1) MICHELLE PRUDENCE (2) FLEUR CHARLTON |
Claimants |
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- and - |
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GLOUCESTERSHIRE HOSPITALS NHS FOUNDATION TRUST |
Defendant |
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MR Simon Trigger (instructed by Browne Jacobson LLP) for the Defendant
Hearing date: 17 February 2025
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Crown Copyright ©
The Claimants bring very similar claims based on the same tragic event. A baby, referred to throughout by both parties as "Baby Margot", was born in May 2020 at a Birth Unit in Cheltenham ("the Unit") and died a few days later having been transferred to the main hospital in Gloucester ("the Hospital"). The Defendant admits there was negligence in the delivery of Baby Margot whilst at the Unit. Two midwives who were initially involved in the delivery at the Unit have been the subject of significant criticism upon investigation. The Claimants were also midwives, employed by the Defendant, who provided treatment to Baby Margot sequentially to the first midwives. This treatment included accompanying Baby Margot in an emergency ambulance transfer to the Hospital in the course of their employment. The Claimants allege that as a result of matters that occurred during the transfer, they have each sustained significant psychiatric injuries. Each Particulars of Claim uses descriptions such as "frightening high speed journey" and "horrifying" to emphasise the intensity of this particular emergency transfer.
Either way, none of this assists the clarification of the main claims.
The Claimants also each seek Summary Judgment, again based on the ten paragraphs.
The breadth and detail of this material essentially supports the Claimants' broad submission that the "Baby Margot incident" establishes that the issues in their claims can substantially to be limited and reduced by way of these applications.
The proportionality and relevance of this approach is questionable, although this is perhaps more a question on costs.
Strike-out
"a defendant is unable to admit or deny an allegation within the meaning of 16.5(1(b) where the truth or falsity of the allegation is neither within his actual knowledge (including attributed knowledge in the case of a corporate defendant) nor capable of rapid ascertainment from documents or other sources of information at his ready disposal. In particular there is no general obligation to make reasonable enquiries of third parties…..instead the purpose of the defence is to define and narrow the issues between the parties in general terms on the basis of knowledge and information which the defendant has readily available to him during the short period afforded by the rules for filing his defence".
Although I do not entirely follow the following remark as being the purpose of a Statement of Case, Mr Roy submits that the Amended Defences "do not act as a reality check" for the Defendants and its lawyers.
a. Paragraph 3 in each Particulars of Claim alleges that the Claimant was required to assist in a "highly traumatic ambulance emergency transfer" of baby Margot. "The need for the emergency transfer was a result of the Defendant's negligence".
b. Paragraph 5 of each Amended Defence admits that the Claimant was involved in an ambulance transfer of Baby Margot. Each expressly denies that the need for the transfer being an emergency transfer "was as a result of the Defendant's negligence whether as alleged or at all". Paragraph 5 alleges that the need for emergency transfer "arose as a result of the poor condition at birth of Baby Margot".
c. I do not follow the basis for seeking to strike out the entirety of Paragraph 5, as would include the admission featured in each first sentence. The inclusion of this as part of each Application is unfortunate and distracting. The Claimant's approach has required both Defendant and the court to infer that the true strike-out concerns the denial as to the cause or need for the emergency transfer arising from the Defendant's negligence.
d. The pleading provides an express reason for the denial, namely that as matter of fact the cause of the emergency transfer was due to the condition of the baby at birth. I agree with the Defendant that this is not abusive or in breach of any Court rule but is instead factually accurate; at least in itself.
e. The Defendant is entirely correct to comment that the purpose of each Paragraph 5 is in response to each Paragraph 3 in the Amended Particulars of Claim and cannot be expected to go further. This is hardly a subjective pleading interpretation point but a matter of reading. Very simply, the end of each sentence of Paragraph 5 explains by ending how "paragraph 3 of the Amended Particulars of Claim is denied".
f. It becomes entirely clear from later parts of both Amended Particulars of Claims and Amended Defences that the issue as to whether the transfer was caused by the clinical negligence is dealt with substantively at paragraphs 17 and 24 of the respective Amended Defences.
g. The application to strike out each Paragraph 5 in the Amended Defences does not engage any reasoned basis for a strike-out. To this extent, that part of the Claimant's Application is dismissed.
a. Paragraph 13 puts the Claimant to proof in respect of paragraphs 15 to 17 in the Amended Particulars of Claim, save that it is admitted (in the first part of the paragraph) that this was an emergency transfer owing to the condition of Baby Margot.
b. I observe again that the basis for seeking to strike out the entirety of this paragraph, as would include the admission featured in the first sentence, is not explained or justified by the Claimants. So the inclusion of this proposition seems unfortunate and distracting.
c. Paragraphs 15 to 17 in the Amended Particulars of Claim adopt and incorporate quite specific evidential descriptors about the journey that would not be within the knowledge of the Defendant. The Defendant cannot know whether this was "a frightening high-speed journey" or that the circumstances were "horrifying". Accordingly, it ought to come as no surprise to any objective reader that the Defendant requires each Claimant to prove factual matters known only to her. Not least because it surely falls for someone engaged in professional health care, that inevitably requires medical attention to be applied in situations of pressure, what was distinct about the ambulance journey to other like situations.
d. The Defendant's response is not an abuse of process but, as I accept the Defendant's submission, the only pleading the Defendant can advance.
e. The application to strike out Paragraph 13 in the Amended Defence of Prudence does not engage any reasoned basis for a strike-out. To this extent, that part of the Claimant's Application is dismissed.
a. Paragraphs 14 to 18 in the Amended Particulars of Claim aver the circumstances in which the Claimant was called to the birthing room, the poor condition of Baby Margot, attempts to resuscitate by respectively Ms Prudence and the Claimant and the transfer by emergency ambulance.
b. Paragraph 18 in the Amended Defence admits such allegations "as…are consistent with the contemporaneous medical records for Baby Margot and her mother" but otherwise puts the Claimant to proof. Although a school of thought might consider the final sentence unnecessary, Paragraph 18 states that the Defendant will "as required" refer to the entire clinical records at trial.
c. I note the Claimant has not applied to strike out paragraph 12 in the case of Prudence. Paragraph 12 of Prudence would appear to be the mirror paragraph of paragraph 18 in Charlton for which an application is made. It is unclear why in Charlton paragraph 18 is said to be an abuse that should be struck out but the same paragraph in Prudence is not objected to.
d. The point being here that, as I find, there is nothing obvious or irregular about Paragraph 18 in Charlton that amounts to an abuse such as engages any reasoned basis for a strike-out. It is entirely reasonable and indeed common for a party to admit to the generality of an event but rely upon the substance and detail of contemporaneous documentation. The absence of any like challenge in Prudence supports this conclusion.
e. This part of the Claimant's Application is dismissed.
a. Paragraph 20 in the Amended Particulars of Claim in Prudence and Paragraph 25 in the Amended Particulars of Claim in Charlton are in like terms. They allege fourteen specific particulars of negligence in the pre-birth, delivery and post-birth care of Baby Margot and her mother.
b. Paragraph 16 in the Amended Defence in Prudence and Paragraph 23 in the Amended Defence in Charlton are also in like terms. They comprise a detailed and entirely typical sequence of forensic admissions, non-admissions and denials in response to each of the particulars. The sequence comprises 26 specific paragraphs. The Claimants have observed and the Defendant accepts that some of the denials and non-admissions have been admitted in the Defendant's replies to respective Claimant's Notice to Admit Facts.
c. Given, however, that the Defendant has made entirely and unequivocally clear that it does not seek to resile from the Notice to Admit Facts replies, the basis for striking out the now resiled from parts of the Defences is not obvious as necessary; at least if the proposal is on the basis that those parts as they remain would now constitute an abuse. In simple and practical litigation terms, it would and should be entirely open to the parties to agree either that the Claimants take no issue with the "non-resiled but accepted as incorrect" sub-paragraphs or, if they would prefer not to see such sub-paragraphs remain, then they should be further amended. Either way, to pursue by Application a strike-out for reasons of this inconsistency alone would seem disproportionate and unnecessary.
d. The incidence of discrepancy aside, the proposed strike out of these paragraphs again raises the perhaps surprising proposition that even the Defendant's admissions should be struck out. Again, I express the view and conclusion that I do not follow this and find it both unhelpful and distracting.
e. Distilling the broad scope of this part of the Claimant's strike-out Application further, one is left with an engaging question as to the extent to which the Defendant can be expected to plead to particulars of alleged negligence that, as is highly pertinent to note, are not particulars of negligence directly relied upon by each Claimant as directly causative of their personal loss as led to a scenario arising from which, on each Claimant's case, there independently arose a breach of duty(or duties) of care owed by the Defendant to each of them.
f. This takes one to the centre of the dispute between the parties on the Application.
g. Mr Trigger places some emphasis, in my view with relevance, on the continuing absence of comprehensive particulars of negligence or duty relied upon by each Claimant as breaches of such identified duties of care (or otherwise) directly owed to them. The Defendant's complaint, again in my view with justification, is that particulars of negligence and breach of duty as owed to Baby Margot and her mother are not obviously or implicitly portable as particulars of negligence or breach of duty to be relied upon by each of the Claimants. If one or more of the particulars of negligence and breach of duty as owed to Baby Margot and her mother are (or are capable of) being so directly relied upon, then this can only become clear once the primary duties relied upon as directly owed to each Claimant have been sufficiently and comprehensively pleaded. It follows from that analysis that the requirement and expectation for the Defendant to go on to plead a positive case to each and every particular of negligence as owed to Baby Margot and her mother does not arise, or at least has not yet because of the opacity of the Claimants' pleadings. In other words, the potentially simplistic argument that the respective duties of care to Baby Margot, her mother and the Claimants are either the same or sufficiently contiguous such that providing there has been admitted negligence in respect of one or both third parties (Baby Margot and her mother), and because the Claimants became involved in the factual scenario as created, the Claimants can appropriately adopt and rely upon the same particulars of negligence.
h. This point, the Defendant submits, crucially over-arches its concession that certain consequential findings may well indeed be found to arise from its admissions of clinical negligence. I therefore am not persuaded by Mr Roy's submission that because Mr Trigger has conceded (Paragraphs 58 and 59 in his skeleton argument) that consequential findings may well arise at trial following a fuller analysis of both pleadings and evidence, this means that judgment or strike out is appropriate at this stage. This submission, with respect, fails to have sufficient regard to the Defendant's carefully presented position.
i. The circumstances in which a party can be said to be unable to admit or deny a matter are discussed in SPI.
j. Significantly, the discussion in SPI principally contemplates that the ability of a defendant to admit or deny an allegation in a context where the pleaded cause of action engages duties of care or obligation owed directly to the claimant, not third parties. The Defendant submits that the Defendant is not in such a clear position in principle as the discussion in SPI engages.
k. For example, sub-paragraph (g) in each of the Amended Defence paragraphs does not admit that there was a failure to obtain informed consent for delivery at the Unit "whether as alleged or at all". The Defendant submits that it cannot know what information the mother knew, what matters were important in her mind to ensure her consent was informed when she made decisions or what information she herself had or needed to ensure she could give Informed Consent. The Defendant does not admit or deny whether the mother gave informed consent because it does not know.
l. A similar and subtle point, in my judgment entirely reasonably reserved by the Defendant, is that whilst the Defendant admits at sub-paragraph (h) that there is no documented discussion with the mother about the risks and benefits of place of birth, the Defendant cannot admit the mother had not given informed consent for the location of the birth. In terms, then, that the omission of documentation discussion is not obviously probative of a lack of consent in fact. Sub-paragraph (j) does not admit that obstetric opinion was reasonably required to enable the mother to make an informed choice as to birth location and, at sub-paragraph (k), each Claimant is put to proof that obstetric referral would have altered the management and location of birth.
m. Noting the principles expressed in SPI but as much in terms of general pleading practice, I accept the Defendant's submissions that there are numerous aspects of the particulars the Defendant cannot be expected to know and hence either admit or deny.
n. The Defendant challenges the Claimants' submission that a counter-factual case ought to feature in each Defence (and, hence, because it does not, then their Applications are made out) even if it concerns something that did not in fact occur.
o. I was taken, for example, to sub-paragraph (e) in each of the relevant Defences. This sub-paragraph responds to the Claimant's allegations as to what would have occurred had there been a growth scan; in particular that there would then have been a senior obstetric review. As the Defendant points out, however, there was in fact no growth scan and therefore it is not, and cannot be, known that this would have occurred. The Defendant concedes it might have done and it may well be the Claimant may be able ultimately to prove on evidence that, on the balance of probabilities it would have done.
p. Nonetheless, the Defendant submits that it is its prerogative to "not admit" something would have occurred that did not in fact occur and only might have done hypothetically. Hence, the critical distinction between what may be concluded only at trial on evidence as to what was more likely to have occurred and expecting a party in its Statement of Case to elect either to agree with the entire hypothetical relied upon by an opposing party or instead offering a positive counter-assertion but from a different hypothetical starting point.
q. Of course if the Defendant wishes positively to argue that a review would not have occurred then of course it will be required expressly to plead a denial and set out that alternative account. That is not however the Defendants case. In the absence of seeking to rely upon an express counter-assertion, or in a position to admit, a party is entitled to oblige the opposing party to prove the same.
r. Plainly, a party that does not so admit in circumstances when it is or reasonably ought to be in a position to admit is vulnerable to an application of this kind. Carefully considering the pleadings as I have, however, I do not accept this case falls into the latter category. These are not matters "capable of rapid ascertainment from documents or other sources of information at his ready disposal" per SPI.
s. The inability to positively plead to counter factual assertions also feature in sub-paragraphs f, k, p, q,r and v. I accept the Defendant's submissions here likewise.
a. These plead to allegations that Baby Margot would have been delivered by the obstetric team at the Hospital, there would have been "no Baby Margot incident or in any event no need for the post-natal emergency transfer", no need for either claimant to assist with any such incident or any emergency transfer from the unit. There is a further allegation that these events would have occurred even had the Defendant "belatedly recognise(d) the mother's autonomy as a patient and responded to her second transfer request" rather than (as is alleged in Paragraph 20(11) her third request).
b. The Defendant does not admit that, but for the admitted breaches, Baby Margot would have been delivered by the obstetric team, that there would have been no "Baby Margot incident", any need for each claimant to assist with any such incident or emergency transfer. Crucially, both Amended Defences go on to plead very specific denials by way of a further three sub-paragraphs that (to paraphrase) the events relied upon fall within the scope of duty of care owed to each claimant or otherwise that the claimant's particular losses and injury were foreseeable in these circumstances.
c. It might be argued on a strict view that the three sub-paragraphs denying any legal liability arose are not directly in response to the relevant two paragraphs in each Amended Particulars of Claim. That said, given the Defendant's fundamental objection to the Claimant's lack of particularised pleading linking particulars of negligence in the context of Baby Margot and her mother to sufficiently identified duties of care and their breach owed to each claimant, I can entirely follow why these three sub-paragraphs were added in qualification.
d. Discussion of such distinctions ought not be necessary had the Claimant identified precisely what within these paragraphs ought to be struck out. Instead, the Claimant seeks to strike out each entire paragraph, leading to the unsustainable and unmeritorious proposition that clear denials of legal liability in response to parts of the claim that are not the subject of the Applications ought nonetheless to be struck out. As late as the skeleton argument prepared by Mr Trigger, the Defendant was therefore obliged to "reserve its position in relation to those specific sections pending clarification of the basis upon which it is said they fall to be struck out".
e. The Claimants did not offer a qualified version of their strike out applications in respect of this irregularity. In the absence of such a request, I see no reason to rewrite the Claimants' applications as they apply to strike out these paragraphs even if, for reasons that follow, it may be other aspects of their applications make good the Claimant's election to pursue entire strike out.
a. To reiterate (necessarily so owing to the diverse issues raised), both Amended Particulars of Claim seek to endorse a proposed apparently obvious association between their claims and admitted negligence in respect of Baby Margot and her mother. To this end, the Amended Particulars of Claim heavily rely upon collateral evidence about the "Baby Margot incident" even if eliding central questions of duty and breach in respect of each claimant. Accordingly, each Claimant relies upon the entire HSIB report, the Defendants' Chief Executive's public statement in response, the Defendant's admissions in protocol correspondence, a BBC Panorama documentary broadcast in January 2024 and the Defendant's public response to that.
b. The adoption and incorporation of extrinsic evidence or documentation into a Statement of Case has always been of subjective merit. In appropriate cases, it serves to illustrate where more amplified support and explanation can be found in respect of an allegation that is nonetheless self-standing and self-explanatory in itself within the Statement of Case. The opposite is where a party seeks to incorporate extrinsic evidence in substitution of allegations that ought to be expressly pleaded. In many instances, the approach adopts something of a middle-ground although, as is indeed the case here, this can lead to argument whether the express pleaded narrative is sufficient.
c. The Defendant in each Amended Defence notes the Claimant's reliance upon the extrinsic documentation but does not admit "the reasonableness or otherwise of that reliance". Whether a party is acting reasonably or not in a Statement of Case is perhaps more an ultimate question on costs but, as I read it, the Defendant's intended record here is that it does not agree with the Claimant's implied assumption that the extrinsic material is self-standing evidence of negligence in the Claimants' claims.
d. More specifically, the Defendant expressly denies that the HSIB report establishes a negligent failure to exercise reasonable care by the Defendant as distinct from being a safety led investigation into best practice. Further, the Defendant accepts that admissions of legal liability were made to Baby Margot and her mother but pleads that it is unable to follow how such admissions are relevant to the Claimant's claims until they each more fully particularise the duties owed to them and how they were breached.
e. The Defendant comments that the BBC panorama programme, if relevant, must be considered at trial for its full context and meaning.
f. Given these paragraphs are in response to the incorporation of extrinsic material that is bound to feature a very wide range of material of which not all may be obviously relevant, it is difficult to follow the Claimants' broad proposition that the Defendants' response to such material ought entirely to be struck out. Indeed, I am satisfied that in respect of the HSIB report the Defendant sets out a correct legal and factual analysis of its status.
g. By way of Mr Trigger's skeleton argument, the Defendant describes as misconceived the application to strike out of these paragraphs but reserves its position in the event of the Claimant identifying a different basis at the hearing.
h. No such different basis was identified by the Claimant at the hearing, Mr Roy instead confirmed at the outset that he maintained his strike-out application.
i. As I have reasoned in respect of previous paragraphs, I see no reason to rewrite the Claimants' applications to enable them to strike out these paragraphs even if, for reasons that follow, it may be other aspects of their applications make good the Claimant's election to pursue entire strike out.
I do not accept the Claimants' submission that the paragraphs sought to be struck out fall into the classification expressed in SPI as "stonewalling …full of indiscriminate non-admissions", neither with reference to PD 3A 1.5(1) do they "consist(s) of a bare denial or otherwise set(s) out no coherent statement of facts".
The vital starting point is that the Defences seek to defend claims that arguably still call for more precise presentation and clarification as to the nature and scope of the duties relevant to the Claimants personally rather than third parties. Questions as to what the Defendant can admit or ought instead to be able to deny (if so elected) are far from clear cut. If a path was to be found utilising CPR 3.4, then it needed more than the broad proposition that multi-factorial and composite paragraphs responding to composite allegations should entirely be struck out.
Having read carefully the respective allegations and defences in each of the above paragraphs, I am satisfied that the strike-out aspect of both Applications should be dismissed. At least in the context of CPR 3.4, I conclude that any arguable absence of a precise counter-factual or legal defence can fairly be interpreted to have arisen because of: (a) an imbalance in the Amended Particulars between reliance upon very specific particulars of clinical negligence and the absence of clarity as to the independent duties owed to each Claimant and their breach; (b) the allegations fall outside the Defendants knowledge as understood in SPI or; (c) would constitute counter-factual matters that the Defendant is unable to admit or deny.
a. In Prudence, the Claimant seeks summary judgment in respect of Paragraphs 20 and 21 in the Amended Particulars of Claim.
b. Paragraph 20 comprises the particulars of negligence in respect of the mother and baby's birth, in respect of its various stages before during and after.
c. The amending Paragraph 20A adds that but for such alleged negligence, Baby Margot would have been delivered by the obstetric team at "the hospital". This proposition does not sit entirely well with the balance of Paragraph 20A which alleges that but for the negligence there would have been no "Baby Margot incident" at all. I note "the Baby Margot incident" is not expressly defined but, presented as a sub-heading to Paragraph 9, is presumably intended to reflect the entire sequence of events from the time the midwife Hazel Williams came to assist Baby Margot's mother on 14 May 2020 through to the unfortunate death of Baby Margot on or around 17 May 2020 and so includes the emergency transfer to Gloucester. This interpretation is consistent with the phrase "or in any event no need for the post-natal emergency transfer".
d. Hence Paragraph 20A(c) "There would thus have been no need for the Claimant to assist with any such incident or any emergency transfer from the unit".
e. Paragraph 20B avers that the transfer should at its least been in consequence to the mother's request for such a transfer.
f. Paragraph 21 pleads evidence in support of the allegation that the Defendant was negligent in the sequence of events before and following the birth of Margot.
g. In Charlton, the Claimant seeks summary judgment in respect of Paragraphs 25 to 26 in the Amended Particulars of Claim. These paragraphs duplicate the paragraphs discussed above in Prudence.
The statement summarises the allegations in the Statements of Case and provides a procedural history commencing pre-issue. In respect of protocol stages, Mr Marshall concedes that the Defendant has disputed liability of the Claimant's claims but had never disputed allegations of negligence in respect of "the Baby Margot incident". He comments that despite the absence of any such admission, the understanding of the Claimants and their firm was that it was not in issue because:
(i) No denial appeared in the Defendant's protocol correspondence in reply;
(ii) The Defendant had provided no disclosure "in respect of the clinical negligence issue" as, he maintains, should have been expected if so relied upon;
(iii) They could not "imagine that the clinical negligence issue could sensibly be disputed in the light" of the "damning" contents of the November 2020 HSIB report. He adds that their inference as to the probative effect of the HSIB report was "not least because the HSIB has been often criticised for pulling its punches and failing to condemn negligence practice".
Mr Marshall notes (and, I comment, appropriately accepts) the distinction that whilst the Defendant in its replies to Notices to Admit had declined to admit "secondary facts on which the Claimant's case flowed from these i.e. that but for admitted failings there would have been no need for the emergency transfer. That element of liability therefore remained disputed".
24. Perhaps mindful of the probability that the court on such an Application would apply a more careful scrutiny of the causal relationship between the alleged clinical negligence events and the circumstances establishing how the Claimants each came to be in the ambulance, at Paragraph 47 Mr Marshall cites two allegations where "the Claimant's case….is overwhelming". I assume from the wording of the examples as follow, by "the Claimant's case" Mr Marshall means the issue as whether an emergency ambulance transfer was required sooner:
a. Because of the feature of blood-stained liquor reported at 03.40 and documented at 03.50, "the counterfactual transfer would have been long before the need for an emergency transfer involving the Claimant's arose";
b. The mother had requested at c11.00 and c.12.00 to be transferred to the hospital and so, had she have been transferred, then "the evidence is clear that at this stage this would not have been an emergency transfer". He records how an ambulance was not called until 13.08 but not because of a perceived emergency, arrived at 13.25 and was (relying upon a factual note in the HSIB report) was not treated as an emergency until 13.20.
a. Does not admit that the Claimant did not give consent to the birth location;
b. Does not admit that any failure to seek obstetric opinion to discuss the place of birth constituted a breach of duty to the mother, that such opinion was necessary in respect of the birth location or that this would have altered the management and location of the birth;
c. Admits that obstetric opinion should have been obtained when blood stained liquor was recorded and this feature should have expedited the birth;
d. Does not admit that an expedited birth would have avoided it being a traumatic birth and/or the resulting need for an emergency ambulance;
e. Does not admit that a failure to increase the frequency of intermittent auscultation in the second stage of labour or failure to monitor the mother's fluid intake led to any alteration in the management of the birth or its location;
f. Does not admit that any requests by the mother for a transfer (none being admitted) would have led to any alteration in the management of the birth or its location;
g. Does not admit that "any risk assessment which it is alleged ought reasonably to have been undertaken" led to any alteration in the management of the birth or its location;
h. Does not admit that alleged failure to use the emergency alert or failure "to take a holistic view as required" led to any alteration in the management of the birth or its location;
i. Does not admit that the broad sequence of events pleaded as the "Baby Margot incident" would not have occurred but for the breaches of duty the Defendant admits or that without such admissions there would have been no need for each Claimant either to assist at all or in an emergency transfer.
a. As had to be conceded by Mr Roy during the hearing, the Paragraph 3 so called self-contained "clinical negligence issue" is unacceptably broad in a claim where questions of clinical negligence are relied upon by each claimant not in support of claims for loss directly caused by such acts or omissions but instead as gave rise to a factual scenario in which there were then (apparently but not clearly pleaded) separate acts or omissions as were directly owed to the Claimants.
b. Through some exploration and exchange in the course of the hearing, Mr Roy came to concede that the more realistic and precise nexus the Claimants best could rely upon was if (and sufficiently in the context of summary judgment) the court is persuaded that at least one or more of the allegations of clinical negligence in respect of Baby Margot and her mother led to the need for the emergency ambulance transfer in question i.e. that in which the Claimants were involved. Hence, irrespective of the interpolation of analysis whether the transfer did or did not give rise to breaches owed to the Claimants, the court can be satisfied that the emergency transfer arose from at least some (in the sense of material) negligence by the Defendant.
c. It is clear from the Defendant's Protocol correspondence that it has declined to offer an admission that negligence admitted in the respect of the care of Baby Margot and her mother is directly supportive of the Claimants' claims. I do not find this response unexpected, such that it supports the Applications. Clear questions immediately arise from the Claimants' presentation of events and surely would have done at the protocol stage of correspondence.
(i) Was an ambulance transfer justified sooner than as eventually occurred;
(ii) If so, would it always have been an emergency transfer;
(iii) If not at what point in time did the distinction arise between the requirement for a transfer and the necessity for an emergency transfer;
(iv) How do the Defendant's admitted acts and omissions of negligence interplay with the question whether an ambulance transfer was inevitable in any event, even if it possibly would not (at an earlier point) have been an emergency transfer;
(v) How do the Defendant's admitted acts and omissions of negligence interplay with questions whether an ambulance transfer was inevitable in any event and would have been an emergency transfer.
"If there is unexplained blood loss per vagina, the woman should be immediately transferred to the Obstetric Unit, referred for Consultant care. Be aware of blood stained liquor, ensure a show is a mucoid show and not blood loss……….Documentation of your findings must be clear – is it blood loss or mucoid show."