CIVIL PROCEDURE BACK TO BASICS 39: A NOTICE TO ADMIT FACTS: THE RULES AND CASE LAW
In a discussion about the 20th anniversary of the Civil Procedure Rules on Twitter today someone asked if “Notices to Admit Facts” were still available, they had not seen one for a long time. The rules still permit parties to serve notices to admit facts. This is an apposite time to look at the rules relating to notices to admit facts and the case law that deals with this rule.
Notice to admit facts
(1) A party may serve notice on another party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice.
(2) A notice to admit facts must be served no later than 21 days before the trial.
(3) Where the other party makes any admission in response to the notice, the admission may be used against him only –
(a) in the proceedings in which the notice to admit is served; and
(b) by the party who served the notice.
(4) The court may allow a party to amend or withdraw any admission made by him on such terms as it thinks just.
THE COSTS SANCTION
There is no automatic costs sanction within the rules if a party refuses to admit facts that are subsequently proven at trial. Rather it is a factor that the court takes into account in assessing costs under CPR 44.2 and 44.3.
It is probably the absence of an automatic costs sanction that has led to the serving of notices to decline.
JUDICIAL CONSIDERATION OF NOTICE TO ADMIT FACTS
In Glaxo Wellcome UK Ltd (t/a Allen & Hanburys) & Anor v Sandoz Ltd & Ors  EWHC 1626 (Ch) Chief Master Marsh expressed the view that it was within the court’s case management powers to order a party to respond to a notice to admit facts.
The Master was considering a number of applications, one of which was an application that the defendant respond to a notice to admit facts that had been served by the claimant.
The second element of the application concerns a notice of admission served by the claimants on the defendants. The notice is a detailed one comprising some 32 headline points with a considerable number of sub-points. The notice was met with a response from the defendants saying that they do not admit the relevance of the alleged facts and they do not admit any of the facts that are set out in the notice.
CPR 32.18 governs such notices. A notice to admit facts is a convenient procedural device and has the potential to save cost because a party need not go to the expense of proving uncontroversial detail. The rule, however, contains no sanction for a refusal to agree facts. It would not be common for the court to seek to apply any sanction to the refusal to admit facts other than a costs sanction after the event under CPR 42.
The claimants seek an order that the defendants should respond to the notice and, although the claimants accept that the defendants cannot be ordered to admit facts, to the extent that they decline to do so, they should not be permitted to seek to put forward an alternative positive case at a later stage. The application is defined in paragraph 6 of the application notice.
The defendants’ position is that the court does not have power to require them to provide any further response than they have already given. Plainly it is right that a defendant cannot be, and should not be, forced to admit facts. Generally speaking, a party is entitled to lead the evidence it wishes for the purposes of either pursuing a positive case or defending the claim at a trial. I have no doubt, however, that the court has power to make the sort of order that the claimants seek applying the overriding objective and the broad case management powers in CPR 3.1(2)(m) and indeed under CPR 3.3(b) to impose a condition.
The defendants point to aspects of the notice to admit which they say are unsatisfactory. For example, there are facts which are asserted that do not readily lead to a simple admit or non-admit answer. There are two additional points that are made on behalf of the defendants. First, the approach adopted by the claimants can be described as a unilateral one rather than being collaborative. The notice was served without prior warning and the defendants were required to respond to it within a short period. The springboard for the request is said to have been an observation made by me in paragraph 29 of the judgment dated 28th June 2017. Be that as it may, it is right to observe that the claimants could have proceeded with the request at a much earlier stage. Furthermore, this is complex multi-jurisdictional litigation and it would have been preferable for there to have been some engagement with a view to agreeing, if possible, a list of core facts to which the defendants could have responded by admission and non-admission. In any event, that is not what happened.
The second point taken by the defendants is that the timing of the order the claimants seek is wrong. There are two aspects of timing. First of all, but for today’s application and but for the application to adjourn the trial date, exchange of witness statements would already have taken place. It is said that an attempt to narrow the range of disputed facts is best done after the exchange of witness statements and not before. The second timing issue concerns the claimants’ application to join the Vectura parties. If the current defendants are required to re-answer the notice, their responses will not bind the Vectura parties which will necessitate further work.
It seems to me that the objective that lies behind the notice to admit facts is an entirely laudable one. There are, undoubtedly, many matters of fact in this case which are not controversial and it will be helpful to get into the open precisely what those facts are. The notice to admit covers a range of facts of different types and it is clear to me that a considerable number are uncontroversial. I have characterised the approach by the claimants as being less than satisfactory but it seems to me that the defendants’ approach of simply refusing to admit any of the facts was unhelpful.
I have come to the view that now is not the appropriate moment for the court to exercise its discretion, a discretion I am satisfied exists, to make an order in the terms that are sought by the claimants. The litigation is in flux at the moment. It is common ground that the date for exchange of witness statements needs to be reviewed. It is plainly essential that the claimants’ further application, in both limbs, is resolved as soon as possible. The right approach for the court to adopt today is to adjourn the relevant part of the claimants’ application with a view to it, if necessary, being reconsidered by the court at a later date.
I would express the provisional view that the parties should seek to work together in a collaborative way to the extent they feel possible after exchange of witness statements with a view to achieving clarity about the differences between concerning the basic facts in which the dispute arises. That will be of considerable help to the trial judge. However, I do not consider it is right to make the order today. If the parties are not able to agree an approach, or to agree the detail of what it is they should do, the application can be restored to me for further consideration.