APPLICATION TO WITHDRAW ADMISSION REFUSED: SUMMARY JUDGMENT GRANTED

May 10, 2016 · by · in Admissions, Applications, Conduct, Uncategorized

NB – THE JUDGE’S DECISION NOT TO ALLOW THE FIRST DEFENDANT TO WITHDRAW FROM THE ADMISSION WAS SUBSEQUENTLY OVERTURNED ON APPEAL. See the post here.

The judgment yesterday in Wood -v- Days Health UK Ltd & Others [2016] WHC 1079 (QB) shows how a simple incident can give rise to  complex litigation.  The various applications took two-and-half days and judgment was reserved. The judgment deals with a number of applications, I want to concentrate upon the  important observations on the first defendant’s application to withdraw from an admission of liability.

“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.”

KEY POINTS

  • The fact that a claim had a greater value than the defendant thought when it admitted liability was not a good ground for allowing the defendant to resile from an admission.
  • In the current case the (first) defendant’s admission and conduct had prevented the claimant from inspecting the defective equipment that caused her injury.
  • The defendant that had admitted liability did have a good arguable defence. On the facts of this case,however, it was unjust to allow it to withdraw from the admission.
  • The fact that the claimant had obtained summary  judgment, in part, against another defendant was not a good reason to allow another defendant to resile from an admission.
  • The fact that the defendant had a right to bring proceedings for a contribution against other defendants was not a good reason to permit it to withdraw from an admission.

THE CASE

The claimant was a paraplegic and  the user or a motorised wheelchair. She was injured when the chair riser shot forward propelling her into a desk and injuring her.

  • The first defendant was a company that supplied the wheelchair to the health authority.
  • The second and third defendants had (effectively) merged and were now the relevant health authority bodies.
  • The fourth defendant supplied the riser unit that was in use at the time.

THE SUMMARY JUDGMENT APPLICATION AGAINST THE SECOND AND THIRD DEFENDANT

The claimant obtained summary judgement against the health authority defendants on a number of key matters.

The judgment of Mrs Justice Elisabeth Laing DBE

  1. I give summary judgment to C on the questions whether or not
i) she had a contract with D2 under which she bought the riser unit from D2,
ii) that contract was breached, and
iii) that breach caused her any injury.

THE  FIRST DEFENDANT’S APPLICATION TO RESILE FROM AN ADMISSION

The first defendant had admitted liability prior to issue.
  1. C’s solicitors wrote to D1 on 12 April 2010. The letter said that attached were ‘a letter dated 30 March 2010’ from D2 ‘together with photos of the faulty wheelchair and the incident report form confirming that there was a failure on the part of the chair’.
  2. The 30 March letter referred to ‘the visit report dated 27 October 2009’ and ‘the MHRA report’ (that is, a report to the relevant regulator). The letter said that D2 had the wheelchair. At the foot of letter, 2 documents were mentioned: the MHRA report dated 13/11/2009 and the visit report dated 27/10/2009. The visit report is headed ‘Date of Visit: 27th October 2009′. On page 2, under ‘Actions’, it said, ‘JS to complete MHRA report’. ‘JS’ was the author of the visit report.
  3. There is a dispute about whether the MHRA report was enclosed with the letter sent by C’s solicitors on 12 April 2010. But whether or not it was, a reasonably careful reader of the documents which, it does not seem to be disputed, were sent, would have realised that there was a missing document, that is, the MHRA report. A reasonably informed reader would have known, or taken steps to find out, that the MHRA was the relevant regulator, and would thus have appreciated that the MHRA report was likely to be important.
  4. Asking C’s solicitors for the MHRA report would not have required onerous further investigation. All Garwyn needed to have done was to write a further letter; either to C’s solicitors, or to D2, the originator of that document. That limited further step was not disproportionate to the value of what was then thought to be a fast-track claim.
  5. The MHRA report revealed that the ‘frame’ was replaced in ’08/2008′. There is a dispute about what that means. I accept Mr Ferris’s submission that it must mean the seat riser frame, given what the documents from D2 show about the history of the wheelchair. The chassis was replaced later than June 2008.
  6. On 6 May 2010, C’s solicitors asked Garwyn whether they intended to inspect the wheelchair, as they would like to be present. Garwyn replied on 3 June 2010 that ‘We understand that the wheelchair ….has already been inspected by our Principals insured’ (that is, it would seem, by D1). They had not yet decided whether a further inspection was necessary.
  7. Garwyn admitted liability for the accident by a letter dated 14 June 2010. They had completed their inquiries. They ‘confirme[d] that liability is formally conceded’ and that they would not argue that C had contributed to her injury. They asked for medical evidence and a schedule of loss.

The first defendant subsequently applied to withdraw its admission in April 2013.  For various procedural reasons this took several years to be heard.

FIRST DEFENDANT’S APPLICATION TO WITHDRAW ADMISSION REFUSED

The judgment of Mrs Justice Elisabeth Laing DBE

“D1’s application to resile from its admission of liability
  1. CPR PD 14.7.2. provides that when a court is considering whether to allow a party to withdraw an admission, it must take into account all the circumstances, including the matters specified in that sub-paragraph. ‘All the circumstances’ must mean such of the circumstances as, in addition to those listed in PD 14.7.2, the court considers are relevant on the facts before it. As will appear when I consider the factors listed in paragraph 7.2, there is some overlap with each other, at least on the facts of this case.
  2. The first listed factor is the grounds on which the application is made, including whether there is new evidence since the date of the admission. In my judgment there is no new evidence about the circumstances of the accident. The admission was made after D1 inspected the wheelchair which failed. That inspection would have shown that the wheelchair had a riser unit fitted to it, albeit that it would not have shown (though D1’s records might well have shown, and D2’s records did show) that it was not the original chassis and riser unit. However, if it is assumed in D1’s favour that C’s solicitor did not send the MHRA report in April 2010, a reasonably diligent investigator would have realised in April 2010 that an important document was missing, and would have asked for it then. So had the defendant taken reasonable steps to investigate in April 2010, it would have discovered that the ‘accident’ wheelchair was not the wheelchair which was originally supplied by D1 via D5.
  3. 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.
  4. The next factor is the conduct of the parties, including any which led to the admission. I heard many submissions on the issue of delay. D1 and C both referred to periods of delay between D1’s admission of liability, its indication that it wished to resile from its admission, and the hearing this year. In my judgment, since C knew before she issued her claim, and D2 knew once it saw D1’s defence, that D1 was repudiating its admission, the relevant period of delay is the delay between the admission (in C’s case, when D1 first indicated its changed position) and in D2’s case, the date D1’s defence was served. D1 acted promptly once proceedings were issued, and it does not seem to be D1’s fault that its application was not heard in 2013, when it was first listed, still less that it has taken until February/March 2016 for the application finally to be listed.
  5. C argues that about a year has been lost because of D1’s application for disclosure from C which led, eventually, to an application by C for relief from sanctions and an order that C make disclosure. Since the court did order C to make disclosure, and gave C relief from sanctions, I do not consider that D1 can be criticised for this for making that application (or for the time it took for the application to be determined). The orders made by the court suggest that the application for disclosure was justified.
  6. D2 criticises C for waiting until close to the end of the limitation period before issuing her claim, and D1 argues that it could not apply to withdraw its admission until C had issued proceedings. Once C did so, D1 made the application promptly. I consider that given the admission by D1 in early 2010, C cannot be criticised for not issuing sooner; nor can she be criticised for issuing when she did, and joining D2 and D3, in the light of D1’s indications that others might have modified the wheelchair, and that it was considering applying to withdraw the admission.
  7. The crucial period is that between the date of the admission and the time when D1 indicated it was going to resile from it. I am not in a position to make definite findings about D1’s thought process, or about whether it received the MHRA report in 2010. D1’s solicitor, Mr Neal, has asked Garwyn about what was in its file. He reports that Garwyn have sent him copies of what was in the file, and they did not include that MHRA report, but I have no direct evidence from Garwyn. There is no witness statement from C’s solicitors, but I was told on instructions that, in any event, it is not possible to tell from their file what enclosures are sent with a letter, as copies of the enclosures are not kept in the file. The enclosures are not listed on the letter of 12 April 2010. Mr Ferris pointed out that there have been other occasions when C’s solicitor appears not to have included relevant documents with a letter. On balance, on the material I have seen, I consider it more likely than not that C’s solicitor did not send the MHRA report with the letter of 12 April 2010, but that he did send D2’s letter of 30 March 2010, the photographs and the visit report. I do not consider that it is likely that Garwyn would have admitted liability if they had read the MHRA report in 2010.
  8. l infer that when D1 realised that C’s injuries might be more serious than C had initially suggested (‘Currently we consider this case will fall into the fast track’), and that damages, rather than being a maximum of £25,000, could be in the region of £300,000, it looked more closely at the documents it had. I am not able to say whether it realised that it had not been sent the MHRA form. It is surprising that, if all that was missing was the MHRA form, D1’s solicitors asked, in their letter of 15 August 2012 to C’s solicitors for further copies of the enclosures sent with the letter of 12 April 2012 to Garwyn, ‘that is the letter from [D2], together with the photographs and Incident Report, as these would appear to be missing from our file’. That letter suggests, not that one document was missing from Garwyn’s file, but that all the enclosures were. That letter, therefore, is not entirely consistent with Mr Neal’s evidence about what he was told about the state of Garwyn’s file. If D1 supplied a further riser unit to D2 at D2’s request (as D2’s documents suggest it did) it is also somewhat surprising that D1 did not know from its own records that it had separately supplied the replacement riser unit to D2 (as it had failed during the warranty period). However Mr Ferris tells me that that evidence is disputed by D1, and on the balance of the documents, it could be that the second riser unit was in fact supplied direct to D2 in 2006. D1 is to blame for the delay between the date of the admission and the first intimation that it would be withdrawn.
  9. I do not consider that C can be criticised for any conduct which led to the admission. Even if the MHRA report was not sent to D1 in April 2010, any such failure did not in any material way cause the admission (see above). D1’s conduct, on the other hand (see above) is open to criticism. If the MHRA report is as significant as Mr Ferris submitted, D1 had the means of obtaining it before it made the admission. In my judgment, the relevant conduct factors point against allowing D1 to withdraw the admission. I deal with further factors which were relied on by C in the context of prejudice, below.
  10. The next relevant factor is prejudice that may be caused to any person if the admission is withdrawn. Both C and D2 rely on such prejudice.
  11. The main prejudice which would be caused to C is that (leaving to one side the outcome of her application against D2), she would lose a certain claim against D1, and face continuing her claims against D1, D2 and D4, in circumstances where each defendant denies liability.
  12. She also complains that on two occasions, in 2010, and in 2013, the conduct of D1’s advisors deprived her of an opportunity to conduct a joint inspection the wheelchair. Mr Neal, D1’s solicitor, explains that on 2 January 2013, D2 told him that the wheelchair was available for inspection. He then received a letter from C’s solicitor, dated 14 January, which showed that C thought that the wheelchair had been disposed of. He did not correct this mistake. He assumed D2 would tell C that it was available for inspection. C submits that he should have arranged a joint inspection. C submits that being deprived of that opportunity caused her prejudice because of an issue which was developing about the possibility that the use, or misuse, of the wheelchair might have contributed to failure of the riser unit.
  13. She also argues that the surviving bracket has now been sawn up by D1’s expert, before any expert could inspect it for her. There may be limited force in this point, because her expert adopts the conclusions of D1’s metallurgist. She also argues that by time the wheelchair was inspected, it was in a terrible state. It had been stored outside with rubbish (as photographs in the bundle show). She argues that if D1 is allowed to resile from its admission, it will be difficult for her to counter the claim that extraordinary stresses caused the riser unit to fail. Who can say whether or not the wheelchair was damaged in the years when it was left unattended, out of doors, by D2, asks C rhetorically.
  14. If D1 had not made the admission when it did, it is likely, in my judgment, that C would have pressed to inspect the wheelchair herself at a very early stage, when it was in better condition. Moreover, if she had done that, it is very unlikely that the wheelchair would have been stored outside by D2, apparently with assorted rubbish. C has, putting it at its lowest, suffered an intangible prejudice and sense of injustice which comes from having lost the opportunity to inspect the wheelchair immediately after the riser unit failed. That sense is exacerbated, even if marginally, by her complaint that D1 apparently knew that C mistakenly thought the wheelchair had been disposed of, and did not correct that mistake (see C’s skeleton argument, paragraph 96).
  15. She also argues that D1 and D4 no longer have relevant documents because of events since, or at, or around time of, the admission; D1 sold its business in June 2010; and D4’s solicitors say that historic paper records about testing were destroyed in 2012; they also suggest that documents relevant to the CE mark on the riser no longer exist. If D1 is allowed to withdraw its admission, in sum, the investigation of C’s claim will be prejudiced and there will be more delay while the various issues are litigated.
  16. D2 also argues that it will suffer prejudice if the admission is withdrawn. While D2 seems to have reasonable records, and to have conducted its own (albeit somewhat limited) investigation promptly, it had no notice of the claim by C until over 2 years after the accident. As Mr Hunjan pointed out, D1 has had the advantage, with notice of the claim, of having investigated promptly, when it would have been easier to find relevant documents, and of having inspected the wheelchair very soon after the accident. It is inevitable that memories will have faded in the meantime.
  17. The next listed factor is the prejudice that may be caused to any person if the application is refused. The only party who would suffer prejudice if I refuse the application is D1. The prejudice it would suffer is that it would be prevented from running a credible defence. I say more about this below.
  18. The fifth factor listed in paragraph 7.2 is the stage in the proceedings at which the application is made, in particular in relation to any date fixed for trial. As Mr Ferris pointed out the application could not be made before the proceedings were commenced. It was made at a relatively early stage. Indeed, in her particulars of claim, C sought to meet such an application, which, at that stage, she anticipated, even though it had not yet been made. The delay by D1 was between the date of the admission, and its realisation, on further investigation, that it might have a defence to a claim which appeared to be more valuable by the summer of 2012 than the claim which was first intimated in early 2010. That means that this factor is neutral rather than telling in favour of D1, given the delay between the admission and D1’s first hint that it might withdraw the admission. I of course accept that the application was made at an early stage in the proceedings, and as no trial date has yet been fixed, it has not in any way impinged on a trial date, or delayed it.
  19. The sixth factor is the prospects of success of the claim if the application is withdrawn. Mr Bright submitted that C has a strong case against D1 on liability which is very likely to succeed even if D1 is permitted to resile from the admission. I would not put it as high as that. Mr Ferris argued that the case that D1 was the producer of the wheelchair was flawed on a number of different grounds. I do not need to rehearse the arguments here in detail. I have explained the basis of those arguments. In short, he submitted that the evidence suggested that the ‘accident’ wheelchair had been ‘produced’ by D2 and/or by D4. D2 had assembled it from separate parts, and the provenance of the second riser unit was unclear. Moreover, the evidence that D4 had produced the riser unit to a tight specification by D1 was not clear, and it was the (second) riser unit, rather than the (second) wheelchair chassis, which failed. The riser unit’s CE marking was still on the second riser unit and it identified D4 as the producer of the riser unit. I consider that D1’s prospects of defending a claim that it was the producer of the accident wheelchair are reasonable, and it follows that C’s prospects of establishing such a claim are far from certain.
  20. A further factor listed in the PD is the interests of justice. In my judgment, the interests of justice include finality; but also a fair outcome. Those two considerations are in tension with each other in this case. It would not be fair to D1 to prevent it from running a good defence to C’s claim that D1 was the producer of the ‘accident’ wheelchair. On the other hand, D1 made an admission on professional advice, having had a good opportunity to investigate the facts and to inspect the accident wheelchair, and should, in the interests of finality, be held to that admission.
  21. Mr Ferris submitted that if D1 is held to its admission, and is not in fact liable, it will have difficulty in recovering contribution from the parties who are. That, on its face, seems to be powerful point in favour of allowing D1 to withdraw its admission. But there are two answers to that. First, any such difficulty is part of the calculated risk which D1 took in making the admission in the first place, on the basis of an investigation which was not as thorough as it might have been. Second, the argument is circular. If D1 is not permitted to withdraw its admission, judgment will in due course be entered against it. That, whatever the underlying merits of C’s claim against D1, will be the basis of D1’s liability to C: see BRB v Connex South Eastern Limited [2008] EWHC 1172 (QB); [2008] 1 WLR 2867, paragraph 18, per Cranston J. In that case D1 admitted liability by mistake, and in due course, C entered judgment against it. Cranston J held that the judgment itself gave rise to a liability on the part of D1 for the purposes of the Civil Liability Contribution Act 1978, and that it could therefore claim a contribution from D2 (who was in fact liable to C). On analysis, therefore, D1’s ability to claim a contribution from D2 and D4 is a factor which tells in favour of holding D1 to its admission.
  22. I should make clear that I do not consider that the fact that I have given summary judgment against D2 on C’s contractual claim against D2 is a reason for allowing D1’s application to withdraw its admission. C has, in my judgment, reasonably issued claims in contract, under statute, and in tort against D1, D2 and D4. I will consider her claim against D5 below. She had (at least potentially) concurrent causes of action against those defendants, and it was not apparent to her, at least initially, which of them might be liable to her, and if so, on what basis. D1 admitted liability in relation to one of those concurrent causes of action, but then suggested that another defendant might be liable instead. Contribution proceedings are a mechanism by which the defendants can establish, inter se, the extent of their liabilities (or otherwise) in respect of the extent of the injury which C is able to establish flowed from the accident. As a matter of logic, the liability of one defendant which is admitted, proved or established by other means in respect of one cause of action does not extinguish that of another defendant in respect of a different cause of action.
Conclusion on D1’s application
  1. For these reasons I dismiss D1’s application to withdraw its admission of liability and its concession on contributory negligence.”

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