Withdrawing Admission of Liability

 

Legal Article

UK Law: Withdrawing Admission of Liability – dated 21 June 2015

 

 

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I provided advocacy for a multi-track application hearing for C objecting to D’s application in relation to withdrawing admission of liability.

D had been driving in lane 1 on a three lane motorway in a large HGV vehicle and collided with a car, B, in front of C in lane 2, having changed lanes without indicating.

C had been in lane 2 and had been injured due to having to brake and change lanes into lane 3, then being hit in the rear by a car, E in that lane .

D had initially admitted liability for C’s injuries and damage and also for the damage to E on the basis he had thought C had come into contact with B.

D never withdrew his admission of liability in relation to E.

D sought to withdraw the admission of liability in respect of C. This was on the basis that D considered that new evidence obtained three years later suggested C had not come into contact with B and therefore C’s injuries were due to C not keeping a proper distance, driving at an unsafe speed and unnecessarily entering lane 3.

The evidence relied on by D to withdraw the admission of liability included a police report which contained contemporaneous statements from all parties suggesting that C never came into contact with B.

However prior to making the admission D had received C’s claim notification form which clearly stated that C had not come into contact with B. Further C had stated that C’s injuries resulted from C needing to take evasive action to avoid the possibility of colliding with D and B resulting in a multi-vehicle pile up, due to D’s negligence.

The limitation period for a claim against E had passed and due to the earlier admission of liability by D, C had not pursued E.

Amongst other issues the Court dismissed D’s application due to the fact that the police report was not considered to be new evidence and the courts applying Henning Berg v Blackburn Rovers Football Club and another [2013] EWHC 1070 (Ch) after the Jackson Reforms are taking a more rigorous approach to applications to withdraw from admissions of liability.

Please see the law below which applies to a challenge to this type of application.

 

The UK Law relating to withdrawing from an admission of liability before commencement of proceedings

UK Civil Procedure Rule (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 (PD) 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.’

D came within CPR 14.1A(3)(b) having sought permission of the court for an admission made before commencement of proceedings and the application being made after the commencement of proceedings.

PD 14.7 sets out the factors which the court will take into account when considering an application to withdraw an admission.

Withdrawing an admission

7.1 An admission made under Part 14 may be withdrawn with the court’s permission.- This is what the Defendant is seeking

7.2 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;’

-I argued that the Police report was not new evidence, the witness statements exhibited were available before the admission of liability was made. I further argued that new evidence did not include evidence available at the time but not sought.

I also dealt with other matters addressed in the practice direction including.

‘(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;

application :

(i) C missing out on an opportunity to pursue E due to limitation and

(ii) being under the impression since the admission that the case was effectively over, particular considering the psychological element to the injuries and now nearly four years after the accident being faced with the case being resurrected.

(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 offer was made; and

(g) the interests of the administration of justice.’

Case law

Factors

In Sollitt v D J Broady Ltd [2000] CPLR 259 the Court of Appeal held that the following were relevant:

-Reason for admission

-C’s feelings on resurrection

-Stress on civil justice system

-Public interest excluding unnecessary litigation and strategic manoeuvring- I argued this was a clear example

In Braybrook v Basildon & Thurrock [2004] EWHC 3352 factors considered included:

-Prejudice to parties

-Who is responsible for prejudice

-Prospects of success

-Public interest against satellite litigation

-Close to final hearing less chance of a successful application to resile.

Other cases relevant include:

Sowerby v Charlton [2005] EWCA Civ 1610

The Governing Body Charterhouse School v Hannaford Upright [2007] EWHC 2718

White v Greensand Homes Limited and BSF Consulting Engineers Limited [2007] EWCA Civ 643

The above cases are now entrenched within PD 14.7 other cases that apply are as follows.

Gunn & another (t/a Chipperfield Garden Machinery) v Taygroup Ltd [2010] EWHC 1665 (TCC),

Hamilton v Hertfordshire County Council [2003] EWHC 3018. – Withdrawal allowed if admission made by mistake

In Henning Berg v Blackburn Rovers Football Club and another [2013] EWHC 1070 (Ch) it was held:

‘The Principles Applicable To This Application

  1. CPR r.14.1.(5) is augmented by Paragraph 7.2 of Part 14 Practice Direction – Admissions. It provides:

“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 offer was made; and

(g) the interests of the administration of justice.”

In exercising the discretion conferred by CPR r 14.1(5) the Court of Appeal in Sowerby v. Charlton [2005] EWCA Civ 1610 approved the approach identified by Sumner J in Braybrook v. Basildon & Thurrock University NHS Trust [2004] EWHC 3352 (QB) which requires that the Court should consider all the circumstances of the case and seek to give effect to the overriding objective. Amongst the matters to be considered are:

  1. i) The reasons and justification for the application, which must be made in good faith;
  2. ii) The balance of prejudice to the parties;

iii) Whether any party has been the author of any prejudice they may suffer;

  1. iv) The prospects of success of any issue arising from the withdrawal of the admission;
  2. v) The public interest in avoiding where possible satellite litigation, disproportionate use of court resources and the impact of strategic manoeuvring;
  3. vi) The proximity of the application to a final hearing.

On 1st April 2013, the Overriding Objective was radically amended. It now places emphasis not merely on the need to deal with cases justly but to do so at proportionate cost, expeditiously, to enforce compliance with the Rules and orders and to allot to each case an appropriate share of the Court’s resources. This amendment of the overriding objective is likely to have a significant impact on the approach to be adopted to applications of this kind, which will now be approached by courts much more rigorously than perhaps has been the practice in the past, particularly where formal admissions are made on behalf of parties represented by experienced and specialist professional advisors.

 

  1. In relation to the underlying merits of Blackburn’s asserted defences, I suggested in the course of the argument that the appropriate starting point is the realistic arguability test applied to summary judgment applications. Mr Berragan accepted this approach as correct and Mr Gilroy did not express any disagreement with that approach. It necessarily follows from that, and in any event from the nature of these proceedings, that I cannot resolve disputes of fact that are material but by the same token, just as is the position in relation to summary judgment applications, there is no obligation on the Court to accept without question any factual assertion made by the party asserting that it has an arguable defence available to it – see National Westminster Bank Plc v. Daniel [1993] 1 WLR 1453 and the post CPR cases noted in the notes to Part 24 in Volume I of the White Book at Paragraph 24.2.5, which show that this practice has continued to be applied post the coming into effect of the CPR.

 

  1. In my judgment the correct way of approaching an application of this sort is to start by asking whether the Defendant has demonstrated that if permitted to withdraw its admission it would have a realistically arguable defence. If it has it will be necessary to consider the other factors. If it has not then clearly it will not be necessary to consider the other factors because a summary judgment application would be bound to succeed if permission to withdraw the Admission was granted and thus no useful purpose would be served by giving the permission sought.’

 

I submitted that Berg v Blackburn required dismissal of D’s application and this was successful.

Thanks for reading.

Montclare Campbell

Barrister

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<h3>Disclaimer: The above article on withdrawing admission of liability is for information only, does not amount to legal advice and should not be relied on.</h3>

Withdrawing Admission of Liability