DEFENDANT’S ADMISSION IS BINDING: BUT PERMISSION TO WITHDRAW ADMISSION GRANTED: HIGH COURT DECISION

In Blake -v- Croasdale [2017] EWHC 1336 (QB) His Honour Judge Purle QC (sitting as a Judge of the High Court) decided that an admission made by insurers was a binding admission. However he granted permission to resile from that admission. The case was an unusual one.

THE CASE

The claimant was seriously injured in a road traffic accident. The claim was submitted on the portal. The defendant indicated that it may be raising issues of contributory negligence, in addition to seat belt issues, and that the matter was unsuitable for the portal because of the value of the case.

THE LETTERS OF ADMISSION

The defendant insurers wrote admitting primary liability.

  1. However, the previous letter of 24th November from Esure had stated in terms: “Primary liability for the accident is admitted”. It was once that admission was made that that the question of contributory negligence was raised later in the same letter. That was queried by the letter of 14th January 2015 saying: “We are pleased to note that primary liability is admitted. Please advise whether this is an unequivocal and irrevocable admission or if you seek to reserve your position in any way.” Then later on, when considering contributory negligence (and in that context alone) they said as already mentioned that they were proceeding on the basis that liability remained in issue.

  2. Just pausing there, it is clear, in my judgment, that an admission was made in the letter of 24th November 2014, though the claim remained subject to issues of contributory negligence. I doubt whether the claimant’s solicitors needed to be as cautious as they were by seeking further clarification on 14th January 2015. That letter, it is said, showed that the claimant refused to accept the admission. In my judgment, it did no such thing because it stated in terms: “We are pleased to note that primary liability is admitted.” The letter qualified that, just as the previous letter had done, by making it plain that the admission was subject to a contributory negligence defence.

  3. The same letter of 14th January 2015 also expressed the view that the claim was not suitable to be dealt with via the portal and sought acceptance of the letter as formal notification that the claim had left the portal.

  4. Esure wrote a further letter to the claimant’s solicitors, erroneously dated 9th May 2014. It is accepted that it was received on 4th February 2015 and should bear the date 3rd February 2015. Esure stated: “With regard to liability, we have made our position abundantly clear. We accept primary liability. No further clarification is needed”.

THE DEFENCE

When proceedings were issued the defendant filed a defence denying liability. One allegation was that the claimant’s injury was caused by his own criminal act – asserting that at the time of the accident he was acting in the course of a joint-criminal enterprise (drug dealing) with the first defendant.

THE  BINDING STATUS OF THE ADMISSION

The judge found that the admission was binding.
  1. That brings me to the first point as to the status of the admission. This is the admission in the letter of 24th November 2014, which was subsequently re-affirmed in the letter received on 4th February 2015. The case having been started on the portal was subject to the RTA Protocol to which CPR 14.1B applies. I have, as already indicated, no doubt that an admission has been made here.
  2. I was taken to the RTA protocol in order to demonstrate that the admission must be construed narrowly, and not as precluding an ex turpi defence. However, an admission of liabilty, as defined in the RTA protocol, means that the defendant admits, among other matters, that the defendant caused some loss to the claimant. As the authorities binding on me explain the ex turpi defence by reasoning, in the case of a criminal joint enterprise, that the true cause of the loss is the joint enterprise and not the negligent driving, it seems to me that the admission necessarily precludes an ex turpi defence.
  3. Accordingly, it seems to me that the admission is binding and that it requires to be withdrawn. This was not done before commencement of proceedings. That, therefore, brings the matter within CPR 14.1B(2)(b), which provides that the admission can be withdrawn after the commencement of the proceedings if all parties consent (not this case) or “with the permission of the court”. Sub-paragraph (2) refers expressly to an admission of causation, which I have held is clearly covered by the admission as made, and would, absent withdrawal, exclude the ex turpi defence. Even without that any other pre-action admission after commencement of proceedings may only be withdrawn if all parties consent or with the permission of the court under CPR 14.1B(3).

SHOULD THE DEFENDANT BE GIVEN PERMISSION TO WITHDRAW FROM THE ADMISSION?

It was common ground that the defendant was entitled to plead contributory negligence.  The issue was whether the defendant could plead contributory negligence in being in the car as a result of the alleged drug activities and put forward an ex turpi defence, which could be a defence to the entire action.

THE JUDGMENT ON THIS POINT

    1. A number of particulars in support of the joint criminal enterprise are given. I shall read them as pleaded.

“A quantity of items associated with drug dealing were discovered in the Astra, namely two small quantities of cannabis; a Morrison’s bag containing traces of cannabis; another plastic bag containing small plastic bags and traces of cannabis; a Smelly Proof plastic bag containing a large quantity of small plastic dealer bags and £215 in cash in an envelope. A mobile telephone was also found in the vehicle, with a quantity of texts suggestive of drug dealing activity. The name Dom, the First Defendant’s name, appears in the texts. The Claimant’s fingerprints were found on the Smelly Proof plastic bag which was concealed in the roof interior/light panel of the vehicle. He was also the person in possession of the £215 in the brown envelope and he was carrying a concealed offensive weapon, a lock-knife. For the reasons set out above, the Second Defendant would invite the court to find that the Claimant and the First Defendant were engaged in a criminal activity, namely the business of drug dealing.”

    1. It has been strongly urged on behalf of the claimant that these matters individually and cumulatively do not make out a case of engaging in criminal activity. It may be that it is correct to say that they do not amount to what many years ago would be called a prima facie case. However, if I am considering whether or not, which ultimately is the test I need to apply, paragraph 5(ii) could or should be struck out, then I am concerned only with ascertaining whether there is a real issue to be tried – in other words, a realistic propsect of success. That does not require, at this stage, the satisfaction, even provisionally, of any burden of proof. It merely requires that there be a case worthy for trial. In my judgment, this is not a defence which could be struck out, whether it appears as ex turpi or as a defence of contributory negligence. In those circumstances it seems to me that, unless there is some other significant reason for the matter not to proceed, the claim should go to trial on all issues and that I should allow the admission to be withdrawn.
    2. I am conscious, however, that before reaching any final conclusion I must consider all of the circumstances of the case, in particular those set out in the Practice Direction to CPR 14 which reads as follows in paragraph 7.2.
“7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including –

(a) the grounds upon which the application seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;

(b) the conduct of the parties, including any conduct which led the party making the admission to do so;

(c) the prejudice that may be caused to any person if the admission is withdrawn;

(d) the prejudice that may be caused to any person if the application is refused;

(e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;

(f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer [sic] was made; and

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

  1. Taking each of those in turn, under (a) the grounds upon which Esure seeks to withdraw the admission is, in brief, that it initially considered that it was dealing with a low value claim, although it soon came to realise, and indeed appeared to realise from the outset, that the case was not suitable for the portal. There was nothing in the material it received to indicate a claim running into millions and therefore proportionality persuaded Esure to adopt a pragmatic approach of not taking the ex turpi defence in a claim which, to make good the costs of that defence, would or might have exceeded the benefit to be derived from endeavouring to settle, upon the footing of an admitted liability, a relatively small claim. There is no doubt that the raising of the ex turpi defence will significantly add to the costs of a trial, at least if one includes within that the costs of the newly emerged contribution negligence limb under paragraph 5(2) which I have mentioned. Moreover, the defence may well fail. In my judgment, Esure’s approach was a perfectly sensible one and I do not consider that it is to be criticised for what has been described, in my judgment erroneously, as a last-ditch effort to avoid liability. It is correct to say that the material enabling Esure to raise the defence has been available to Esure from an early stage, but Esure cannot possibly have imagined that it was facing a multi-million pound claim when the claimant’s own solicitors considered it appropriate to have started the claim within the portal. Even when the initial medical evidence was served in November 2015, Esure could not then have foreseen that this was what is now described as “a catastrophic” claim running into many millions of pounds, its response then being to make an offer of £100,000 net. Accordingly, it seems to me that Esure should be entitled to withdraw its admission and that to refuse to do so would discourage defendants, especially insurers, from acting proportionately, which would make the giving of admissions in like cases where it is appropriate, in the interests of reasonableness and proportionality, to give them, more difficult to secure.
  2. As to ground (b), the conduct of the parties on both sides, neither party’s conduct is open to criticism in my judgment. As I have said, Esure has taken a proportionate view, and it is entitled to reassess the position as the litigation proceeds, in the light of the changed circumstances which it now faces. As far as the claimant is concerned I do not think any serious criticism was made of him or his solicitors, but the fact remains that it was the conduct of the claimant’s solicitors in starting the claim in the portal, no doubt in complete good faith, which caused Esure to treat this claim as a low value one – not necessarily one which was so low as to justify the portal but one which was sufficiently low not to justify the raising of the stakes by running an ex turpi defence which though it has some basis is not bound to succeed.
  3. Moving on to (c), the prejudice that may be caused to any person if the admission is withdrawn, there is obvious prejudice in one sense to the claimant; the claimant now no longer has a claim which is admitted. However, if that is to be treated as a determining factor then permission to withdraw an admission would never be given after the commencement of proceedings. Emphasis was placed upon the difficulties of proof which have increased over the three years and more since the admission was made. That is a matter which I should take into account but which can be exaggerated. As I have said, the contributory negligence defence in any event relies upon the same matters and that is something with which the claimant, as well as the defendants, will have to deal. Furthermore, the claimant has suffered brain damage, which I am prepared to accept on the evidence is real and substantial, and he may be able to give only limited assistance to his lawyers. That, however, may always have been the case. It may well be that the immediate impact of the accident was even more severe than it is now. However that may be, it should not be beyond his competence to deal with an allegation of being involved on the night in question in drug dealing, which admits of a simple answer.
  4. Reference is also made under (d) to the prejudice that may be caused to any person if the application is refused. In this case there is the prejudice that Esure will suffer if not allowed to rely upon what I have held to be a realistically arguable defence of ex turpi.
  5. Under (e) there is no imminent likelihood of a trial and the time at which the admission is sought to be withdrawn is shortly after the commencement of proceedings.
  6. Paragraph (f) refers to the prospects of success with which I have already dealt. As I have said, it is enough at this stage that there is a claim which has some realistic prospect of success. It is not appropriate at this stage to conduct a mini-trial as counsel for the claimant effectively was asking me to do. It is wrong for me to speculate as to what the position would be if I had to give judgment now, not having heard a single witness who might be available to give evidence at the trial. There were at least two other people in the car who appear to be able to give evidence. One is the driver (the first defendant) and the other is an individual, Mr. Plumber, who was able to walk away relatively unscathed from the scene of the accident and whose recorded comment to the police was that he had only just been picked up, thereby marking a distance between himself and whatever earlier activities the other car occupants might have been engaged in, which he may have known of or suspected. That, of course, is a long way from establishing liability, but at the trial the judge will have to consider all the evidence in detail, and form a view on the reliability of the witnesses. I am in no position to judge any of that on this application save to say whether there is a case which can properly proceed. As to that it is sufficient, as I have said, that the prospects of success are realistic without in any way being guaranteed.
  7. Finally, there is a reference to the interests of the administration of justice. In one sense a shorter trial is always better than a long trial but that cannot justify the holding of Esure to the admission in circumstances where overall the general justice of the case requires permission to withdraw the admission to be given. Accordingly, I will allow Esure to withdraw the admission or, given that the initial admission was repeated, admissions”

COMMENT: DOES THIS ALLOW INSURERS TO CHANGE THEIR MINDS SIMPLY BECAUSE OF AN INCREASE IN VALUE?

This was an unusual case, involving allegations of criminal conduct which were probably not known when the admission was made.  Part of the judgment could be read as justifying a change in mind simply due to the increased value of a case.  This may be a dangerous assumption.  It is prudent to read the judgment of Mrs Justice Elisabeth Laing DBE in Wood -v- Days Health UK Ltd & Others [2016] WHC 1079 (QB) when she considered this very issue.

“It is true that the potential value of C’s claim has increased since 2010; and that is the real ground for the application. But that is a risk which is inherent in any personal injuries claim, and is a reason why it can sometimes be commercially advantageous to try and settle a claim at an early stage. I accept Mr Bright’s submission that D1 took a commercial decision to avoid the costs of fighting liability in what it then thought was a low-value claim. I also consider that as experienced loss adjusters, Garwyn took a calculated risk that the value of the claim might increase after the admission. I do not consider that the fact that potential value of the claim has increased since the admission is a good reason for allowing D1 to withdraw the admission.”

 

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