Withdrawal
of pre-action admissions
From 6th April 2007, CPR Part 14 will be amended
to insert a new rule 14.1A covering admissions made before commencement of
proceedings, redressing to some extent the disquiet that followed the decision
in Sowerby v Charlton [2006] 1 WLR 568.
Admissions made before 6th April 2007 in Multi-track claims
Admissions made before 6th April 2007 in
multi-track cases will continue to be covered by the decision in Sowerby.
Rule 14.1A(5) expressly excludes application of the new provisions to
admissions made before that date. In Sowerby, the Court of Appeal
had concluded that a Defendant who had made a pre-action admission of liability
did not need the permission of the Court because the CPR was principally
concerned with the regulation of cases after an action was started and the
wording of Rule 14 could not be interpreted as covering pre-action admissions
of liability. The status of the admission was evidential only and might be used
as such in either interim proceedings or at trial.
In Stoke on Trent City Council v John Walley [2006] 4 All ER 1230, the Court of Appeal recognised the concern raised by
the decision in Sowerby and the fact that Defendants were free to
withdraw pre-action admissions without sanction. Lord Justice Brooke suggested
that the right approach where a pre-action admission was withdrawn would be for
the Claimant to apply to strike out the defence or part of it under CPR r3.4.
However, the Court went on to state that:
- for a Claimant to show that the withdrawal of an
admission would amount to an abuse of the process of the court, it would
usually be necessary to show that the Defendant had acted in bad faith.
- in order to show that the withdrawal of a pre-action
admission was likely to obstruct the just disposal of the case, it would
usually be necessary for the Claimant to show that he would suffer some
prejudice that would affect the fairness of the trial. Any effect on the
funding of the withdrawal of the admission would be unlikely to obstruct
the fair disposal of the case.
In such circumstances, the prospects of any Claimant risking
the costs of an application to strike out on the basis of a pre-action
admission would be extremely limited.
Admissions made before 6th April 2007 in Fast-Track claims
Fast track claims with a value under £15,000 have been in a
different situation to multi-track claims since the introduction of the
Pre-action protocols. Paragraph 3.9 of the Personal Injury Protocol states that
a Defendant who admits liability in a claim with a value up to £15,000 will be
presumed to be bound by the admission.
Admissions made from
6th April 2007
Rule 14.1A(3) provides that a party may, by giving
notice, withdraw a pre-action admission before commencement of proceedings if
the person to whom the admission was made agrees and after commencement of
proceedings, if all the parties to the proceedings consent or with the
permission of the court. Consent is hardly likely to be forthcoming. The rules
give no guidance on the criteria that the Court will apply. However, in Sowerby,
the Court of Appeal considered that Sumner J in Braybrook v Basildon
& Thurrock University NHS Trust [unreported, 7.10.04] had offered
valuable guidance on the way in which a court should exercise its discretion
when determining whether or not to permit the withdrawal of an admission made
after an action was commenced. Namely, that the following principles
should apply:
“1. In
exercising its discretion the court will consider all the circumstances of the
case and seek to give effect to the overriding objective.
2. Amongst
the matters to be considered will be:
(a) the
reasons and justification for the application which must be made in good faith;
(b) the
balance of prejudice to the parties;
(c) whether
any party has been the author of any prejudice that may suffer;
(d) the
prospects of success of any issue arising from the withdrawal of an admission;
(e) the public
interest in avoiding where possible satellite litigation, disproportionate use
of court resources and the impact of any strategic manoeuvring.
3. The nearer
any application is to a final hearing the less chance of a success it will have
even if the party making the application can establish clear prejudice. This
may be decisive if the application is shortly before the hearing.”
Whilst the provisions create a more level playing field when
it comes to resiling from the earlier admission, unless a Claimant can
demonstrate some genuine prejudice arising from the withdrawal, the balance
will inevitably come down in favour of a Defendant that has established an
arguable prospect of the Defence succeeding. The Defendant will almost
certainly pay the costs of the application unless the application was so
obviously bound to succeed that it should never realistically have been opposed.
ELIOT
WOOLF
CHRISTOPHER
WILSON-SMITH QC
