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Resiling from an admission: A recap in Shah v London Borough of Barnet [2021] EWHC 2631 (QB) - Rochelle Powell, Temple Garden Chambers

22/12/21/ In refusing the Defendant’s application for permission to resile from an admission, Master Stevens sets out a helpful and detailed overview of the relevant Civil Procedure Rules (‘CPR’) and case authorities.

Background

The Claimant had been injured when he fell over an uneven pavement, the Defendant was the relevant highway authority. The Defendant initially denied liability but later wrote stating that “liability will no longer be in issue”. Twelve months later and after proceedings had commenced, the Defendant made an application to resile from that admission.

The Law

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 after the commencement of proceedings. In particular, 14PD7.2 states that:

In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including –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(c) the prejudice that may be caused to any person if the admission is withdrawn;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(f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the admission was made; and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.

Master Stevens noted that “all the circumstances” also included consideration of the overriding objective. He also referred to a number of case authorities, in particular Cavell v Transport for London [2015] EWHC 2283 (QB), which was found to have “significant similarities” with the facts of the instant case.

Decision

The court considered each of the grounds within the Practice Direction to perform a balancing exercise of all the circumstances of the case and the overriding objective. In refusing the Defendant’s application to resile, Master Stevens held that:

“it would reflect poorly on the justice system to allow the defendant another last “bite at the cherry” in respect of liability arguments… An important component of the overriding objective is compliance with rules and practice directions and therefore with protocols. The purpose of the pre-action protocols is to narrow issues and resolve disputes, or parts of them, wherever possible without having to engage expensive court resource. If issues are to be re-opened at a later stage there need to be very good reasons as the overriding objective makes clear.”

Comment

Practitioners should think carefully before making an admission and the appropriate time do so. It is important to obtain and consider all relevant information for the purposes of liability arguments before an admission is made. As with any application, the conduct of the parties and any prejudice they may face will be of paramount importance.

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