Pleadings, Expert Evidence and QOCS: A Triple Warning

Written by: Anthony Searle
Published: 28 August 2025

Clinical negligence specialist Anthony Searle analyses a recent decision on pleading deficiencies, expert evidence missteps, and costs consequences

Introduction

In Read v North Middlesex Hospital Trust [2025] EWHC 1603 (KB), Master Thornett delivered a judgment that should make clinical negligence practitioners pause. The case offers a triple warning for those undertaking claimant work:

  1. Inadequately particularised claims that lack a counterfactual causation case will not survive.
  2. Expert evidence must come from the right disciplines and must be obtained prior to serving pleadings.
  3. QOCS protection is no shield for substantively unviable claims.

The decision illustrates how failures at every stage — from expert instruction to pleading to compliance with unless orders – can culminate in both strike out and the disapplication of QOCS, exposing claimants to adverse costs orders. This blog post analyses the judgment and offers practical guidance for claimant and defendant practitioners alike.

A claim in trouble: procedural background

Mr Read’s claim stemmed from two A&E attendances in November 2016 and January 2017 following a fall that allegedly caused severe spinal compression. He underwent surgery later in January 2017, said to have been only partly successful, leaving paraesthesia in both feet and a kyphotic deformity.

He initially brought the claim as a litigant in person. The central allegation was that earlier investigation and treatment would have improved his outcome.

The procedural history reveals not only drafting inadequacies but also fundamental misjudgements in case preparation:

  • Initial Particulars of Claim (June 2020): The Claimant drafted the PoC himself. They were sprawling and unfocused, and they relied on impermissible ‘loss of a chance’ arguments.
  • Unless order (October 2020): The Court required the Claimant to provide proper particulars, failing which his claim would be struck out. He appealed the order and further applications followed.
  • Appeal compromise and further unless order (November 2023): The appeal did not go ahead because the Claimant, by then legally represented, agreed to serve Amended PoC with ‘further and better particulars’ of breach and causation by 15/12/2023, plus a condition and prognosis report, failing which the claim would be struck out.
  • December 2023: Amended PoC, together with a C&P report, were filed in intended compliance with the order. The PoC were a complete rewrite of the original [19-20].

Expert evidence missteps

Two problems emerged relating to (i) timeline concerns and (ii) expert disciplines.

The Claimant’s solicitor’s witness statement revealed they were instructed in October 2023 ‘for the limited purpose of obtaining expert medical evidence from a consultant neuro/spinal surgeon’ [25]. Yet at the November 2023 compromise, the Claimant represented — through his Counsel — that he had obtained supportive expert evidence on breach and causation [12].

Master Thornett found this representation ‘material to the Defendant’ in agreeing to the compromise [13], noting that the Defendant ‘not unreasonably assumed any amended Particulars of Claim would not only be more comprehensive and coherent in pleading terms but had the support of independent considered expert opinion’ [12].

The expert discipline mismatch compounded the problem. Despite alleging breaches in A&E management, the Claimant had only instructed a Consultant Neurosurgeon and not an expert in emergency medicine. As Master Thornett observed: ‘It is difficult to follow how opinion from a Neurosurgeon and Spinal Surgeon could ever be appropriate to the question how the Claimant should clinically have been considered and processed in the Accident and Emergency Department(s)’ [14]. This fatally undermined the case.

It was inevitable that the Defendant applied for strike out and/or summary judgment: neither the initial nor the Amended PoC were underpinned by relevant expert evidence and both were without foundation. In any event, the Court had to address whether the Amended PoC complied with the November 2023 unless order or whether the claim was already struck out.

Master Thornett’s judgment grappled with 3 key issues.

Issue 1: the counterfactual imperative

Pleading failures: the Court’s forensic analysis

The Amended PoC alleged negligence across two A&E attendances:

  • First attendance: Negligent triage (category 3 instead of urgent) and loss of chance of earlier diagnosis and ‘full, alternatively better recovery.’
  • Second attendance: Negligent failure to investigate/examine, misdiagnosis, and negligent discharge.

However, the causation allegations operated at an unacceptably high level of generality, lacking the essential counterfactual matrix. The PoC simply stated that ‘The Claimant suffered spondylodiscitis (“the condition”)’, copied directly from the neurosurgeon’s report. Master Thornett identified this as a ‘self-explanatory state of the Claimant’s health’ without temporal context [47].

Critically, without knowing when the Claimant developed spondylodiscitis or ‘its aetiology and hence state of progress or manifestation as at the operative dates relied upon,’ the allegations of breach became ‘devoid of relevant clinical context’ and ‘unacceptably present in a vacuum’. The Court noted that the Defendants’ clinicians ‘did not cause “the condition”’, and any actionable claim must show they ‘either made matters worse or at least made a material contribution to the continuance of “the condition” between specified dates’ [ibid]. These are elementary points of pleading in clinical negligence litigation.

The 10 unanswered counterfactual questions

Master Thornett’s analysis crystallised the pleading deficiencies through 10 fundamental questions that remained unanswered in the Amended PoC [51]:

  1. When should the Claimant have been seen by a doctor?
  2. What grade or type of doctor should have seen him?
  3. What assessment should have been performed?
  4. What would the likely findings have been?
  5. How and why would those findings have led to an MRI scan?
  6. When and where would the MRI scan have been performed and reported?
  7. What action would have been taken in response to that MRI scan?
  8. What treatment would the Claimant have received?
  9. When, what and where would that treatment have occurred?
  10. What is meant by ‘better recovery’?

These questions ‘naturally arise and as one would expect to be explored and answered as part of the fundamental burden of any claimant pleading such a claim’ [52]. Helpfully, they provide a practical template for all practitioners drafting clinical negligence pleadings.

Master Thornett delivered a robust rejection of the Claimant’s submission that elucidation of what should have taken place could be a matter for subsequent expert opinion [36]. This represented an ‘inappropriate attempt to pass the burden of proof onto a defendant instead to identify, propose and justify what it contends should (or might) have happened’ [37].

The Court emphasised that ‘stating what did not happen is rarely if ever sufficient proof of what should have happened if the events relied upon are acts of omission’ [36]. Pleading a counterfactual matrix is not optional: it is fundamental to establishing causation.

Issue 2: the failed re-amendment

The Claimant had cross-applied for permission to re-amend the PoC. This application revealed the scale of the problems. Despite narrowing the claim to a single attendance and deleting ‘loss of chance’ language on causation — only to reintroduce it under the guise of quantification [70] — fundamental defects remained uncured. Master Thornett did not pull his punches.

The proposed amendments included allegations of failure to provide pain relief and an opportunity to lie down. Although important to patient comfort, Master Thornett characterised these as ‘collateral and comparatively minor episodes’ more suited to ‘a Small Claims Track claim’ rather than multi-track clinical negligence [72]. This demonstrates how far the claim had fallen from a viable clinical negligence action.

Even after re-amendment, core questions remained unanswered, and the claim still failed to establish how the alleged omissions would have led to the claimed consequences. Both the Amended PoC and the proposed re-amended pleading ‘would present any defendant and their representatives with an almost impossible task unless the burden of proof were to shift to expecting them as defendants to offer and discuss the range of possibilities that might have eventuated had the Claimant not voluntarily chosen to leave A&E on his first attendance’ [79]. There remained a failure to articulate a positive counterfactual case.

Unsurprisingly, the Court refused permission to re-amend, and went further: even with the re-amended allegations, the claim would still have no real prospect of success.

Issue 3: QOCS and the ‘substance over form’ approach

Automatic strike-out

Master Thornett found the claim was automatically struck out for non-compliance with the November 2023 unless order. The Amended POC failed to provide ‘further and better particulars’ that had the cogency and authority of supporting expert evidence [80-81]. A Part 18 request would not be able to remedy this and, in any event, should not ‘facilitate a party wholly to re-plead their claim.’ As the Claimant did not apply for reinstatement, ‘this has to be the end of the claim’ [82].

Crucially, the Court noted that the unless order was designed to avoid the wrongs contemplated in CPR 3.4(2)(a) and (b), and failure to comply meant those substantive defects remained [89].

The competing QOCS arguments

On costs, the strike out for non-compliance with the unless order raised the question: was QOCS protection lost?

  • Claimant’s argument: Non-compliance with an unless order falls under CPR 3.4(2)(c) (failure to comply with a rule/order). CPR 44.15 disapplies QOCS only where strike-out is on grounds (a)/(b) (no reasonable grounds/abuse). Hence QOCS remained.
  • Defendant’s argument: The underlying reason for non-compliance was a failure to plead a viable case, i.e. grounds (a)/(b). The Court should look at substance, not the technical procedural route to strike out.

Master Thornett’s QOCS decision

Master Thornett sided decisively with the Defendant’s interpretation and adopted a ‘substance over form’ approach. These are the key takeaways:

  1. The meaning of ‘grounds’: The word ‘grounds’ in CPR 44.15 refers to the substantive reasons for strike-out: ‘“grounds” in rule 44.15 refers to, no more and no less, than the underlying reason [or] explanation why a claim came to be struck out’ [97].
  2. Independent framework: CPR 44.15 should be ‘approached and applied on its own terms,’ creating its own framework rather than being parasitic on CPR 3.4(2) [93, 97].
  3. Authoritative support: The court relied on Achille v Lawn Tennis Association Services Limited [2022] EWCA Civ 1407 and Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18, confirming that CPR 44.15 is engaged by reference to substance, not form [91-92].
  4. Overlap between grounds: The Defendant cited Cable v Liverpool Victoria Insurance Lt [2020] EWCA Civ 1015 to demonstrate that CPR 3.4(2)(c) and (b) can overlap rather than being entirely distinct categories [94].
  5. Inherent jurisdiction: Master Thornett noted that strike-out powers are not limited to CPR 3.4, citing the Court’s inherent jurisdiction preserved by CPR 3.4(5) [96]. This reinforced that CPR 44.15 should not be read restrictively by reference only to specific rules.
  6. Policy against absurdity: Agreeing with the Claimant’s restrictive interpretation would have led to unjust and absurd consequences: ‘Such as the example provided of a claimant who egregiously fails to comply with an unless order obliging them to preserve documents by instead destroying them’ [98].

Even if wrong about automatic strike-out, Master Thornett found that the Amended PoC should be struck out under CPR 3.4(2)(a) and/or (b) as disclosing no reasonable grounds and/or constituting an abuse of process [100]. Either way, QOCS protection was lost.

Practical implications

Clinical negligence practitioners, whether acting for claimants or defendants, cannot afford to ignore Master Thornett’s judgment in Read. The following practical guidance emerges from the case:

For Claimants

  • Instruct the right experts early — from the correct disciplines, before serving the PoC.
  • Never represent that supportive expert evidence exists unless it has actually been obtained.
  • Plead the temporal relationship between the condition’s development and the alleged negligence.
  • Build a complete counterfactual causation case, especially in cases involving omission allegations. Use Master Thornett’s 10 questions as a checklist.
  • For obvious conditions (e.g. ‘a claimant had two legs before the wrongful amputation of one of them’ [47; see footnote 6]), detail may be unnecessary; for progressive conditions (e.g. infection), temporal context is essential.
  • Non-compliance with unless orders risks both strike out and QOCS disapplication.
  • Courts look to substance, not technical procedure — defective claims will not be rescued by labels.

For Defendants

  • Challenge speculative or poorly particularised claims early using CPR 3.4(2)(a)/(b) — and not just in cases involving litigants in person.
  • Consider using Pantelli, Quaatey and now Read as authorities in support of any strike out application under grounds (a) or (b).
  • Seek to obtain unless orders strategically to compel proper particularisation and expert support.
  • Use Master Thornett’s 10 questions as a practical tool to identify and challenge deficiencies in a claimant’s causation case.
  • On costs, argue that QOCS disapplication turns on substance rather than form.

Conclusion

Master Thornett’s triple warning underscores a judicial intolerance for speculative or underprepared clinical negligence claims. For claimants, the risks extend beyond strike out to adverse costs exposure. For defendants, the judgment offers both a template for challenging defective pleadings and reassurance that QOCS protection is not a safety net for unviable claims.

Anthony Searle has a broad practice in clinical negligence, acting for claimants and defendants in complex and high-value cases. He is also the Hon. Secretary of the Professional Negligence Bar Association.