Charlotte Buck, a pupil barrister at 12 King’s Bench Walk, examines the findings of the recent Privy Council decision in Balwah v Abdulla and Surgi-Med Clinic Co Ltd [2026] UKPC 31.

INTRODUCTION

The Privy Council has handed down judgment in Balwah v Abdulla and Surgi-Med Clinic Co Ltd [2026] UKPC 31, providing useful insight into how courts may or may not admit evidence contrary to a party’s written case without amendment of the pleadings.

BACKGROUND

On 18 May 2002, Mrs Balwah was admitted to Surgi-Med Clinic Co Ltd to be induced for labour. Dr Abdulla was the obstetrician responsible for her care.

She was induced at about 8.00pm, after which there was no foetal monitoring for several hours. Her membranes later ruptured and Dr Abdulla was called. After an hour of attempted vaginal delivery, an emergency caesarean section was performed. Aeden Balwah was born at 6.15am and later diagnosed with cerebral palsy and other serious conditions.

In May 2013, a claim was brought against Dr Abdulla and the Surgi-Med Clinic, alleging that Aeden’s cerebral palsy was the result of hypoxic-ischaemic brain injury sustained during labour.

THE COURT OF FIRST INSTANCE

At trial, following the medical evidence, counsel agreed that causation could not be established unless there had been at least an hour during which a hypoxic event could have occurred undetected.

The timing of Dr Abdulla’s arrival was a crucial fact to be determined.

Both Defendants’ pleadings contained admissions consistent with Dr Abdulla arriving at about 4.00am. This was contradicted by Dr Abdulla’s witness statement, which said he had arrived at 4.30am.

When counsel for the Claimant sought to put this inconsistency to Dr Abdulla, his counsel objected. If Dr Abdulla “remained unshaken” on his 4.30am arrival time, they would consider applying to amend the pleadings.

No such application was made. Nevertheless, the trial judge found that Dr Abdulla had arrived at 4.30am, relying, in particular, on a contemporaneous nurse’s note.

The only breach found against Dr Abdulla concerned an overdose of the drug used to induce labour. That breach was not causative of the Claimant’s injuries.

THE COURT OF APPEAL

The Court of Appeal took a different approach, finding that the trial judge had “wrongly and unreasonably exercised” his discretion. It regarded the absence of an application to amend as being “of great significance” and held that Dr Abdulla should have been bound by his pleaded case of arriving at 4.00am. The Court of Appeal then substituted its own finding as to Dr Abdulla’s arrival time and concluded that causation had been established against Dr Abdulla in relation to mismanagement of the labour.

However, the Court of Appeal upheld the trial judge’s dismissal of the claim against Surgi-Med, which had been decided on the basis that attempted delivery started at 4.30am.

The result was striking. The Courts had effectively reached two factual conclusions about the same event. Dr Abdulla was found liable on the basis that he arrived at 4.00am, while the finding in favour of Surgi-Med depended on him arriving at 4.30am.

THE PRIVY COUNCIL

The Privy Council heard two appeals: Dr Abdulla’s appeal, and the Claimant’s challenge to the finding in favour of Surgi-Med following the Court of Appeal’s decision.

The Board allowed Dr Abdulla’s appeal, noting that a trial judge may, in limited circumstances, permit a party to depart from its written case “where the interests of justice so demand.”

Referring to Loveridge v Healey [2004] EWCA Civ 173, it affirmed that this is an issue for the trial judge, having regard to all material matters. The Board emphasised appellate restraint. There was no proper basis for interfering with the trial judge’s finding that Dr Abdulla arrived at 4.30am; that finding was not “rationally unsupportable”.

In considering whether it is within the interests of justice, an analysis of how and when the discrepancy arose, and whether admitting evidence contrary to the pleaded position would cause prejudice is required. The Privy Council considered that the Court of Appeal had failed to undertake such analysis.

The absurdity of inconsistent findings was also recognised. Where different parties take contradictory positions on a single factual issue, the trial judge must make one finding of fact.

CAUSATION

Another useful reminder from the judgment relates to causation.

Even if Dr Abdulla had arrived at 4.00am, the Claimant still had to establish, on the balance of probabilities, that appropriate monitoring would have detected the relevant conditions in time for intervention and safe delivery. The trial judge made no such findings.

The Claimant’s case could only succeed against Dr Abdulla if the limited breach of duty identified, namely the medical overdose, was capable of causing the injury.

CONCLUSION

Balwah is a useful reminder that, although parties will ordinarily be held to their pleadings, departure from a written case is not automatically impermissible. The court must consider how the discrepancy arose, the conduct of the trial and whether reliance on the evidence would cause unfair prejudice.

Pleadings matter, but they should not be applied so strictly that the court is required to reach an inherently contradictory conclusion.