CIVIL PROCEDURE BACK TO BASICS 86: PRE-ACTION ADMISSIONS: THE DANGERS OF NOT MAKING THEM AND THE CONSEQUENCES IF YOU DO

The judgment in Greater Manchester Fire and Rescue Service v Veevers [2020] EWHC 2550 (Comm) HHJ Pearce emphasises the point that a party can make a formal pre-action admission.  A party who tries an alternative “non-formal” admission may well not get the benefits of saving in costs that an open admission would give rise to.  This is an opportunity to remind people that pre-action admissions can only be withdrawn by consent, or by order of the court.

THE JUDGMENT IN VEEVERS

The judge did not accept an argument that a letter stating that the defendant would not formally admit liability but was interesting in paying damages was an “offer” that should be given weight when considering the costs that the claimant later incurred in attending an inquest.

(a) If the public body is ultimately going to admit liability in the litigation or at least consent to judgment being entered against it, there is no reason not to make such an admission at early stage. An appropriately worded admission would put the Appellant in no different position to that which it is when judgment is entered against it (whether on admission or otherwise). The benefit to the Appellant in not admitting liability in general terms at an early stage is that it can subsequently resile from its position without having to apply under CPR 14.1A;

(b) CPR 14.1A sets out a clear procedure for making a formal admission. It would be undesirable if uncertainty were created by giving equal effect to other communications that do not satisfy that description. If the defendant chooses to make a communication which is not a admission within the meaning of the CPR, that document will be one factor in the case, but the availability of a route to making a formal admission that puts liability beyond argument will mean that the court is entitled to place less weight on it in the overall conclusion.

CPR 14.1.A

This rule was introduced to overturn previous decisions that pre-action admissions were not binding on the party making them.  It means that a party that makes an admission prior to issue is in an identical position as if it had made an admission after issue.  The admission can only be withdrawn by consent, or by order of the court.

THE RULE

Admissions made before commencement of proceedings

14.1A

(1) A person may, by giving notice in writing, admit the truth of the whole or any part of another party’s case before commencement of proceedings (a ‘pre-action admission’).

(2) Paragraphs (3) to (5) of this rule apply to a pre-action admission made in the types of proceedings listed at paragraph 1.1(2) of Practice Direction 14 if one of the following conditions is met –

(a) it is made after the party making it has received a letter before claim in accordance with the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol; or

(b) it is made before such letter before claim has been received, but it is stated to be made under Part 14.

(3) A person may, by giving notice in writing, withdraw a pre-action admission –

(a) before commencement of proceedings, if the person to whom the admission was made agrees;

(b) after commencement of proceedings, if all parties to the proceedings consent or with the permission of the court.

(4) After commencement of proceedings–

(a) any party may apply for judgment on the pre-action admission; and

(b) the party who made the pre-action admission may apply to withdraw it.

(5) An application to withdraw a pre-action admission or to enter judgment on such an admission –

(a) must be made in accordance with Part 23;

(b) may be made as a cross-application.