This is an appeal from an order of Upper Tribunal J sitting in the county court on 30 May 2025 when he refused A’s application to amend his pleadings. [1]
A is the personal representative of his father, Eric Blakeman, who died in R’s hospital on 31 October 2018, having been admitted on 28 October. Throughout his stay, he was treated for sepsis, firstly with IV antibiotics and thereafter with oral antibiotics. [2]
The death of A’s father led to an inquiry by the Health Service Ombudsman. In the Ombudsman’s decision dated 29 January 2021, the Ombudsman concluded that D had failed to follow the sepsis protocol by moving from intravenous antibiotics to oral antibiotics at too early a stage in treatment. [3]
Based on this report, in July 2023, A sued R, asserting that the move from intravenous to oral antibiotics was negligent and was causative of his father’s death. (It is agreed that proceedings were commenced within the extended limitation period as agreed between the parties and which expired on 30 July 2023). A had previously (in January 2022) notified the respondent of his intention to make a claim on this basis. R, in a letter dated 22 June 2022, admitted this breach of duty but denied causation. [4]
Between the time at which A wrote to R in January 2022 and the issuing of proceedings in July 2023, he obtained two expert reports from Dr Gani. Those reports were received by A in October 2022 and April 2023; that is, significantly before proceedings were commenced. In his reports, Dr Gani expressed the view that the change from IV to oral antibiotics had been a reasonable course of treatment in the context of this case. However, he opined that an inappropriate antibiotic had been administered, and the use of this inappropriate antibiotic was causative of the appellant’s father death. His evidence thus refuted any claim based on the proposition that the causative breach of duty consisted of the change from IV to oral antibiotics, but was capable of supporting a claim on the basis that the breach of duty lay in the administration of the wrong medication. [5]
Dr Gani’s first report was sent to R in November 2022. In a letter dated 28 March 2023, R disputed the contents of that report. [6]
The claim, when issued, was founded on the change from IV to oral medication as the negligent act and made no mention of the assertions made by Dr Gani as to the type of antibiotic used. Despite that, copies of Dr Gani’s reports were attached to the claim form in purported support of the claim as pleaded. [7]
R’s defence, filed on 24 October 2023, stood by their earlier acceptance of breach of duty by moving from IV to oral medication, denied causation, and pointed out that Dr Gani’s report did not support A’s case as pleaded. They highlighted the inconsistency between the pleaded case and Dr Gani’s report to support an indication that they might seek to have the claim struck out. [8]
The application… was filed on 8 April 2025. The meat of the application was that the Particulars of Claim which had stood from the time of issue in July 2023 should be amended to remove the original basis of the claim and replace it with a claim based on the alleged negligent use of the incorrect medication; that is, that the claim based on the Ombudsman’s report, which it is now accepted cannot succeed, be replaced by a claim based on the reports of Dr Gani, which it is asserted might do so. [9]
There are four grounds on which permission to appeal has been granted… Permission was refused in respect of a further ground and there has been no application to renew. The first (Ground 1) is that J wrongly failed to consider allowing the application under s33 Limitation Act 1980. The second (originally Ground 3) is that J was wrong to find that this was a new claim. The third (originally Ground 4) is that the claim arose out of the same or substantially the same facts. The fourth (originally Ground 5) is that the J wrongly exercised his discretion. I shall take those grounds in turn.
this appeal fails on all grounds. [32]
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