VERY LATE APPLICATIONS FOR PERMISSION TO WITHDRAW ADMISSIONS REFUSED: ADMISSIONS MADE IN REPLY REMAINED BINDING

I am grateful to John De Waal QC for pointing out the procedural aspects of the judgment of Mr Justice Edwin Johnson in Valley View Health Centre (a firm) & Ors v NHS Property Services Ltd [2022] EWHC 1393 (Ch). The judge considered, and refused, applications to withdraw admissions made in a Reply by some of the claimants. The applications were made in closing submissions.

“It is clear to me that the interests of administration of justice point firmly in favour of the application being refused. It seems to me that a late and informal application of this kind would require very particular circumstances, and very good grounds before it could be permitted. There are no such circumstances or grounds in the present case.”

THE CASE

The claimants were all doctors surgeries involved in a dispute with the defendant, their landlords.  Part of the dispute involved the extent of the premises that were demised.   Some of the claimants had filed a Reply which admitted the extent of occupation set out in the defence and counterclaim.  The trial proceeded on the basis of the admissions. However, during closing submissions, some of the claimants attempted to resile from those admissions.   An informal application was made during closing submissions for permission to withdraw from the admissions made.  Those applications were refused by the judge.

THE JUDGMENT ON THE APPLICATIONS TO WITHDRAW THE ADMISSIONS

The judge observed that the applications were made in closing submissions.  It was not clear whether an application had been made in one case, the judge assumed that it had.

1. 1. As I have already explained, the Defendant has counterclaimed for declarations as to the extent of the premises currently demised by the relevant Tenancies in Coleford, Bushbury, St Andrews, and St Keverne. The extent of the current occupation has been admitted by the relevant Claimants in each of these cases. It will be recalled that current occupation in this context does not mean occupation at the date of this trial, but occupation at the time when the Defendant made its counterclaims for declarations as to the extent of the premises demised in Coleford, Bushbury, St Andrews, and St Keverne and/or at the time when the Claimants made their admissions of current occupation. As I have also explained, the Claimants made an application, in the course of closing submissions, for permission to withdraw their admission and dispute the extent of the current occupation in St Andrews. It was not clear to me whether the equivalent application was being made in Coleford.

1. 1. Dealing specifically with Coleford, I start with the relevant pleaded position. Paragraph 20 of the Coleford Amended Defence and Counterclaim pleads as follows:

“The parts of the Building occupied by the Claimants in the period since 1 April 2013 have fluctuated over time. The parts of the Building currently occupied by them are shown cross-hatched turquoise on the occupation plan annexed to this Amended Defence and Counterclaim (“the Occupation Plan”).”

1. 1. A plan of the Coleford Building is annexed to the Amended Defence and Counterclaim (“the Coleford Current Occupation Plan”). A large proportion of the floor area is shown, by turquoise hatching, as being in the current occupation of the Coleford Claimants. Paragraph 41 of the Amended Counterclaim counterclaims for various declarations including, at paragraph 41.1, a declaration “As to the precise extent of the part or parts of the Building that are demised by the Tenancy”.

1. 1. The pleaded response to paragraph 20 of the Amended Defence and Counterclaim is at paragraph 9 of the Coleford Reply and Defence to Counterclaim, which is in the following terms:

“As to paragraph 20 it is admitted that the cross-hatched turquoise area on the Occupation Plan is a true representation of the area that the Claimant currently occupies, save that the waiting area outside the podiatry room is for use by Gloucestershire Care Services and is not used by the Claimant. The parts of the building occupied have not fluctuated since 2012/2013 aside from taking up occupation of an additional space from 2017/2018. The Defendant is required to prove the varying occupancy percentages attributed to the Claimant in Schedule 1.”

1. 1. The reference to the waiting area outside the podiatry room turned out to be irrelevant because, as Ms Docking confirmed in cross examination, the relevant area is not shown hatched turquoise on the Coleford Current Occupation Plan. So far as the reference to varying occupancy percentages is concerned, I understood this to be a reference to the occupancy percentages applied by the Defendant to the service charge years in respect of which the claim to alleged arrears of service charge is made. I believe that the correct reference is to Schedule 2 (as now amended) to the Amended Defence and Counterclaim, where the varying occupancy percentages are to be found. In any event, the varying occupancy percentages are relevant to the issue concerning historic occupation. They do not affect the admission of the Coleford Current Occupation Plan as an admission of current occupation.

1. 1. Paragraph 41.1 is dealt with in paragraph 24 of the Reply and Defence to Counterclaim, which states that “As to paragraph 41.1, the Claimant avers that it occupies parts of the Property as set out in paragraph 9 above”.

1. 1. On the pleaded position therefore, there should be no difficulty in the making of a declaration as to the current extent of the premises demised by the Coleford Tenancy, given that it is accepted that the premises demised by the Coleford Tenancy comprise the premises occupied by the Coleford Partners from time to time. The current occupation has been shown by the Defendant on the Coleford Current Occupation Plan, and the Coleford Claimants have admitted that the Coleford Current Occupation Plan is correct in showing the current occupation. The only matter which should remain to be resolved is the identification of the appropriate date to which the declaration should be tied, in order to reflect what is meant by current occupation in this context.

1. 1. As I have noted however, when explaining the common issues in the five actions, the Claimants produced a Closing Note on Occupancy which attached plans for Coleford, Bushbury, and St Andrews which were put forward as the current occupation plans to be used if declarations were to be made as to the current extent of the premises demised by the relevant tenancies. As I have also noted, the Claimants’ plans do not match up with the relevant current occupation plans attached to the relevant Amended Defences and Counterclaims. In Bushbury the discrepancy is not controversial. I will come back to St Andrews later in this judgment. So far as Coleford is concerned, the Claimants’ plan is materially different to the Coleford Current Occupation Plan; having more areas shown hatched turquoise and thus showing a greater area of current occupation.

1. 1. The difficulty with entertaining the Claimants’ case on current occupation is the Claimants’ admission of current occupation, as shown on the Coleford Current Occupation Plan, in paragraph 9 of the Reply and Defence to Counterclaim. It seems to me that the only way out of this difficulty for the Claimants was to apply for permission to withdraw the admissions. As I have said, it was not clear to me whether the application to withdraw the equivalent admission in St Andrews, which was made in closing submissions, was intended to extend to Coleford. I should also make it clear, in passing, that no formal application notice was issued to withdraw the admission in St Andrews. The application was made orally, in the course of the Claimants’ closing submissions on occupancy.

1. 1. Given this situation, and given that I do have to deal with an application to withdraw the admission in St Andrews, it seems to me that the correct way forward is to take the slightly unusual course of considering how I would have dealt with an application to withdraw the admission in Coleford, if such an application had been made. So far as I can see, the grounds for the application in Coleford would not be materially different to those I have considered in relation to St Andrews. If therefore I have misunderstood the position, and the Claimants did intend to make an application to withdraw the admission in Coleford, what follows is my decision on that application. If the Claimants did not, for any reason, intend to make such an application in Coleford, then what follows is what my decision would have been, if such an application had been made.

1. 1. As the Claimants’ admission was made after the Coleford action had been commenced, the Claimants would have required the permission of the court to withdraw the admission; see CPR 14.1(5). Paragraph 7.2 of CPR PD14 explains how the court is required to approach such an application. The court is required to have regard to all the circumstances of the case, including a list of factors set out in sub-paragraphs (a) to (g) of paragraph 7.2. These specific factors are as follows:

“(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.”

1. 1. The Claimants’ application to withdraw the admission in St Andrews was not supported by any evidence. Nor were submissions made, in support of the application for withdrawal of the admission, which either addressed the factors in paragraph 7.2, or referred me to evidence in the trial which was relevant to the consideration of these factors. This was not perhaps surprising. The application to withdraw the admission was made in the course of closing submissions, and had the appearance of something of an afterthought.

1. 1. Looking through the factors in paragraph 7.2, as they would have applied in the case of an application to withdraw the admission in Coleford, all seem to me to point clearly to refusal of the application. Using the same lettering as in paragraph 7.2, I deal briefly with each factor:

(a) The grounds upon which the application was made (if it was made) were opaque. The catalyst for the application appeared to be the taking of instructions referred to in paragraph 5 of the Closing Note on Occupancy, which was said to have occurred “since the close of the hearing”, which I take to mean since the close of the evidence. In any event, there was no suggestion of new evidence having been found which was not previously available.

(b) There was no suggestion of any conduct, either on the part of the Defendant or otherwise, which justified the application.

(c) The question of prejudice to the Defendant was not addressed, but it does seem to me that it would unfair to the Defendant to find that an admission upon which it had assumed it was entitled to rely, all the way through to closing submissions in Trial 1, could then be withdrawn by the Claimants.

(d) The question of prejudice to the Claimants was not addressed. As such, I cannot find that prejudice would be caused to the Claimants if they are held to their admission.

(e) The application was made almost as late in the day as it could have been, without explanation or justification for the delay in making the application.

(f) If I had granted permission for the admission to be withdrawn, it is not clear what I was then supposed to do. The question of historic occupation was explored in the evidence and was the subject of extensive submissions. The same was not true of current occupation, presumably because it was assumed on both sides that the position was governed by the admission. I cannot see how I would have been able to resolve the differences between the Coleford Current Occupation Plan and the Claimants’ rival plan, particularly when the Claimants’ rival plan was the product of instructions to which I and, I assume, the Defendant were not privy.

(g) It is clear to me that the interests of administration of justice point firmly in favour of the application being refused. It seems to me that a late and informal application of this kind would require very particular circumstances, and very good grounds before it could be permitted. There are no such circumstances or grounds in the present case.

1. Having regard to all the circumstances of this case, and having particular regard to the factors listed in paragraph 7.2, it seems to me that the application for permission to withdraw the admission in Coleford, if it had been made, would have fallen to be refused. If I have misunderstood the position, and the application was in fact made, it falls to be refused.

THE TENANCY AT ST ANDREWS

In this case it was clear that an application had been made, albeit informally in closing submissions. However the application was equally unsucessful.

1. 1. The procedural position is the same as in Coleford. The Claimants’ admission in St Andrews was made after the St Andrews action had been commenced, with the consequence that the Claimants require the permission of the court to withdraw the admission. I have already made reference to CPR 14.1(5), in my discussion in Coleford. I have also already made reference to Paragraph 7.2 of CPR PD14, which explains how the court is required to approach such an application. I need not repeat the list of specific factors to which the court is required to have regard, in paragraph 7.2. The factors are set out in my discussion in Coleford.

1. 1. As I have noted in my discussion of the application in Coleford, the application was not supported by any evidence. Nor were submissions made, in support of the application for withdrawal of the admission, which either addressed the factors in paragraph 7.2, or referred me to evidence in the trial which was relevant to the consideration of these factors. Again, this was not perhaps surprising. As I have already observed, the application to withdraw the admission was made in the course of closing submissions, and had the appearance of something of an afterthought.

1. 1. In my judgment the position is the same as in Coleford. Looking through the factors in paragraph 7.2, all seem to me to point clearly to refusal of the application. Again, using the same lettering as in paragraph 7.2, I deal briefly with each factor:

(a) The grounds upon which the application was made were left unidentified. Paragraph 5 of the Closing Note on Occupancy referred to instructions having been taken, “since the close of the hearing”. I have taken this to mean since the close of the evidence in the trial. It is a rather odd statement in the case of St Andrews, because I assume that the Claimant’s plans showing their case on the current occupation of St Andrews are based on what Dr Budden said in cross examination. Potentially this might have been a point in the Claimants’ favour. The Claimants might have argued that there was new evidence upon which they were entitled to rely; namely the relevant evidence of Dr Budden in cross examination. The obvious problem with any such submission would however have been that Dr Budden signed the statement of truth confirming the content of the St Andrews Reply and Defence to Counterclaim. If Dr Budden had evidence to give which contradicted what was shown on the St Andrews Current Occupation Plans, it must be assumed that he was well able to give that evidence from the outset of the St Andrews action. The relevant evidence given by Dr Budden in cross examination was plainly not new evidence which only came to light after the admission was made.

(b) There was no suggestion of any conduct, either on the part of the Defendant or otherwise, which justified the application.

(c) The question of prejudice to the Defendant was not addressed, but as in Coleford it does seem to me that it would unfair to the Defendant to find that an admission upon which it had assumed it was entitled to rely, all the way through to closing submissions in Trial 1, could then be withdrawn the Claimants. In particular, I assume that the Defendant went into cross examination of Dr Budden on the basis that, whatever arguments there might be about historic occupation, it could at least rely upon the admission, in terms of current occupation.

(d) The question of prejudice to the Claimants was also not addressed. In this context the position might be said to be different to Coleford, because the Claimants can, at least, say that evidence was heard at the trial, from Dr Budden, which supported their case on current occupation. As such, the Claimants can say that they should not be shackled to their admission, when the evidence of Dr Budden points to a different factual position. This seems to me to be a limited point. I say this because it was far from clear to me, hearing Dr Budden’s evidence, what the true position was on current occupation. Dr Budden himself very fairly conceded that some of the areas to which he was referring might arguably be said to have qualified as being in the occupation of the St Andrews Partners. In overall terms, Dr Budden’s evidence did not seem to me to establish that the admission was clearly wrong. Rather, the evidence suggested that there would have been matters to investigate further and argue about, if the admission had not been made. The relevant point seems to me to be that the evidence of Dr Budden did not clearly establish that the St Andrews Current Occupation Plans were wrong. Rather, the evidence raised matters which would have required further investigation and further evidence. Such further evidence was not available, and such further investigation was not feasible, because, right up to closing submissions, the admission was in place and was not the subject of any application for its withdrawal. In summary, I can see the possibility of prejudice to the Claimants, if the application is refused, but in my judgment that prejudice is limited, and cannot possibly prevail against all the factors which militate against allowing the application. It will also be kept in mind that I say all this while putting to one side the point that the extent of the premises demised by the St Andrews Tenancy is not, for the reasons which I have given, controlled by the extent of the current occupation of the St Andrews Building.

(e) In terms of timing, the position is the same as in Coleford. The application was made almost as late in the day as it could be, without explanation or justification for the delay in making the application.

(f) In terms of prospects of success, if I had granted permission for the admission to be withdrawn, there would have been a need for further investigation and further evidence, neither of which was feasible, given the timing of the application. If such further investigation and further evidence had been feasible and had been permitted, I do not consider it possible to say what the outcome would have been, in terms of the Claimants’ case. What does seem clear to me is that holding the Claimants to their admission cannot be said to have deprived them of the opportunity to advance a case on current occupation which was clearly going to succeed. The position seems to me to have been far less clear cut than that.

(g) In terms of the administration of justice, I do not think that the position is quite on all fours with Coleford. There is the evidence of Dr Budden. Nevertheless, it is still clear to me that the interests of the administration of justice point firmly in favour of the application being refused. In my view, as in Coleford, there is a complete absence of the circumstances or grounds which would justify the grant of permission to withdraw the admission.

1. Having regard to all the circumstances of this case, and having particular regard to the factors listed in paragraph 7.2, it seems to me that the application for permission to withdraw the admission in St Andrews, so far as it is relevant to what I have to decide, in the context of the extent of the premises demised by the St Andrews Tenancy and in the context of historic occupation, must be refused.