CIVIL PROCEDURE BACK TO BASICS 92: RESILING FROM ADMISSIONS – A SUMMARY OF THE LAW

The judgment of Master Stevens in  Shah v London Borough of Barnet [2021] EWHC 2631 (QB) provides an essential summary of the rules and case law in relation to resiling from admissions.   The decision itself was looked at in an earlier post.

THE JUDGMENT  ON THE LAW ON RESILING FROM ADMISSIONS

B THE LEGAL TEST

CPR 14.1A(3)(b) and CPR 14PD.7 set out the criteria that the court must consider when determining an application to resile from an admission.

The court has a wide discretion, but must have regard to all the circumstances, including the overriding objective at CPR 1.1(2).

The relevant Rules for making and withdrawing admissions made before the commencement of proceedings are set out below:

CPR 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 the 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 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.

The Practice Direction states in respect of withdrawing an admission:

14PD 7.1     An admission made under Part 14 may be withdrawn with the court’s permission.

14PD7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including –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 applicant 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 admission was made; and

(g) the interests of the administration of justice.

Pursuant to the overriding objective and dealing with the case justly and at proportionate cost includes, so far as is practicable –

(a)        ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence ;

(b)        saving expense ;

(c)        dealing with the case in ways which are proportionate –

1. to the amount of money involved ;

2. to the importance of the case ;

III.       to the complexity of the issues ;and

1. to the financial position of each party ;

(d)       ensuring that it is dealt with expeditiously and fairly ;

(e)        allotting it and appropriate share of the court’s resources, while taking into account  the need to allot resources to other cases; and

(f)        enforcing compliance with rules, practice directions and orders.

C CASE AUTHORITIES

During the course of submissions I was referred to a number of case authorities. These illustrated the wide nature of the discretion afforded to the court and the fact sensitive nature of previous decisions. Principles of wider application, and therefore relevant to this determination, are summarised below, with the cases being listed in date order of when the judgments were given:

Woodland v Stopford [2011] EWCA Civ 266

On the correct approach to the factors to be taken into account in the Practice Direction Ward LJ held at [26] that:

“These factors are not listed in any hierarchical sense nor is it to be implied in the Practice Direction that any one factor has greater weight than another. A judge dealing with a case like this must have regard to each and every one of them, give each and every one of them due weight, take account of all the circumstances of the case and, balancing the weight given to those matters, strike the balance with a view to achieving the overriding objective. Cases will vary infinitely and the weight to be given to the relevant factors will inevitably vary from case to case.”

The Court of Appeal noted that this was a case where the withdrawal of the admission was prompted, not by the emergence of new evidence, but by the defendants’ realisation (after a careful reappraisal of what was known) that those acting on their behalf when the admission was made had acted in error. Such a situation did not preclude the court from permitting withdrawal when exercising its discretion but sometimes the lack of new evidence may be the important consideration.

Moore v Worcestershire NHS Trust [2015] EWHC 1209 (QB)

In this case Bidder J. held in determining an application to resile from an admission, at [31] and [50/51]) that the court “should be aware of and look at [the] case against the background of the revitalised robustness of approach enunciated by the Court of Appeal and the Master of the Rolls in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Denton v TH White Ltd [2014] EWCA Civ 906 respectively, but I do not consider that an application to withdraw pre-action admissions necessarily imports the full factors that are relevant on an application to seek relief from sanctions under CPR3.9″. The Judge drew a distinction between the types of case where a party has made a procedural error such as in Denton and Mitchell and found no true analogy with an application to resile from a pre-action admission.

Bidder J. also found that where there are errors in the initial assessment of liability, rather than new evidence, it is not a bar to a successful application to resile. The grant of permission to withdraw is discretionary, with regard to all the circumstances of the case and the overriding objective (at [28]). He held at [29] in appropriate cases a distinction was to be drawn between a pure mistake and a tactical change of an admission. In the case there was no new evidence coming to light but the defendant’s representative was negligent in making an admission because they had misread expert opinion which had been provided to them. In fact the judgment makes clear that there were inconsistencies in the defendant’s admissions of causation and the Judge stated at [18] that due to those inconsistencies “if the learned master had not allowed the withdrawal of admissions, it would not just have resulted in a trial on quantum alone or an assessment of quantum alone, but inevitably the court would have had to have sorted out what the true position on medical causation actually was “.

Cavell v Transport for London [2015] EWHC 2283 (QB)

In this case William Davis J. dismissed an application to resile from an admission. He reminded himself that it was not for him to conduct a mini-trial. He gave weight to the fact that there was no explanation offered at all as to how the error in making an admission of liability had come about. He reflected further at [16] that so far as the interests of justice were concerned:-

“It cannot be in those interests to permit the withdrawal of an admission made after mature reflection of a claim by highly competent professional advisors when there is not a scintilla of evidence to suggest that the admission was not properly made. Were it to be otherwise civil litigation on any sensible basis would be impossible”.

Wood v Days Healthcare UK Limited [2017] EWCA Civ 2097

This case concerned a product liability claim. Sharp LJ considered what was contended for as “new evidence”, such as to bring it within scope for a party to be permitted to resile from their pre-action admission. The Judge concluded at [50] that an “entire “change in character and amount” of the claimant’s claim in 2012 (to adopt the language of her own solicitors) should, given all the circumstances, have justified the grant of permission to withdraw the pre-action admission)”. Such a significant increase in the value of the claim could be regarded as new evidence which could change the commercial decisions and perspective of the defendant, such that an admission could be withdrawn.

The Royal Automobile Club v Wright [2019] EWHC 913 (QB)

In this case liability was admitted and interim payments were made. The defendant’s insurers had invited the claim to be submitted through the MOJ Portal but this was declined on the basis that the claim was clearly in excess of £25,000. A detailed Schedule of Loss was provided subsequently, valuing the claim at in excess of £1,000,000. The defendant expressed surprise at the scale of the loss, putting the claimant on notice that it considered withdrawing its admission, which it subsequently did. The Master declined permission to withdraw.

On appeal, the Judge, William Davis J, agreed both with the decision made by the Master and the way in which he had reached it (at [23]). William Davis J. held that:

(1) The correspondence indicated that it was plain that this was not going to be a modest claim (at [13]);

(2) The claimant’s solicitors had done nothing to give any impression that the claim was of a modest size and indeed, had declined to enter the claim into the MOJ Portal (at [14]);

(3) There was prejudice to the claimant in that “she had had no cause to engage in any exercise of recollection as to how the accident happened. No investigation had been made as to the precise circumstances” (at [15]);

(4) There was delay in bringing the application to withdraw (at [16]) taking account of the overall timescales not just the time period after proceedings were issued;

(5) Also referring to his own decision in Cavell v Transport for London [2015] EWHC 2283 (QB) William Davis J held that so far as the administration of justice is concerned:

“If clear and unequivocal admissions which have led to a substantial investigation of quantum and to interim payments being made apparently without question can be withdrawn many months later, there will be real damage to the administration of justice. It undermines the basis on which parties to this type of litigation conduct themselves” (at [17])

(6) Furthermore it was held that when considering the prospects of success of the claim (or defence), and the strength that the claimant’s case is required to have in order to justify dismissing an application to withdraw an admission, it was not necessary for a claimant to prove that his/her case was bound to succeed ( at [21]).

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