EWJ 60 April 2025 web - Journal - Page 22
An Unfortunate Admission
In this article Sophie Howard and Julian Horne, of our Personal Injury team, set out the legal
principles and practical considerations in making or responding to an application to
withdraw an admission, and offer some words of caution. They also discuss applications to
withdraw admissions of liability in claims that initially appear to be within the Portal limit, but
where the value of the claim later increases significantly.
An unfortunate admission
Withdrawing admissions under CPR 14
particular, whether a date or period has been fixed for
the trial;
It should hardly need saying that “a person may…
admit the whole or any part of another party’s case”,
and yet CPR 14.1(1)(a) and 14.2(1) provide precisely
that, prescribing only that the admission should –
whether it comes before or after the issue of proceedings – be “by notice in writing”. And of course almost
every Defence contains some admissions, because the
admission of agreed or uncontroversial elements of
another party’s case is an important part of the efficient conduct of litigation. At least in theory, refusing
to admit something and putting the other party to
proof puts one at risk of the costs incurred in proving
it, though one might reasonably question how real
that risk is in everyday personal injury practice.
(f) the prospects of success of the claim or of the part
of it to which the admission relates; and
(g) the interests of the administration of justice.”
The list was previously contained in CPR PD14, and
while the presentation of those factors in the list has
been tweaked a little – (a) and (b) used to be one factor, while (d) used to be two – there is no indication
that there has been any change of emphasis or
approach.
West v Bedfordshire Hospitals
It is perhaps a trite observation that the interplay of
these factors depends very much on the facts of an individual case, so comparisons with reported decisions
are often of limited assistance. But a recent example of
the general approach can be seen in West v Bedfordshire Hospitals NHS Foundation Trust [2024] EWHC
1774 (KB), a claim for wrongful birth brought by the
mother of a child born with spina bifida.
The most important kind of admission, made in thousands of cases every year and usually long before proceedings are issued, is an admission of liability. In low
value personal injury claims, a failure to admit liability will cause a case to exit the Portal process, and so
lose a defendant the potential benefit of a tightly constrained fixed costs regime. Especially since qualified
one-way costs shifting effectively means defendants
must now pay to prove that they are not liable, there
is every incentive for a defendant in a low value claim
to admit liability in the Portal and settle as soon as
practicable.
Sitting as a deputy judge of the High Court, Charles
Bagot QC characterised the second defendant’s application to withdraw various admissions of breach of
duty as ‘not attractive’. He was deciding the application in February 2024, and the admissions had been
made in D2’s letter of response back in August 2020
and repeated in its Defence in January 2021 – more
than three years before the hearing. The case was only
four months from a liability trial listed for June 2024,
which would have to deal with events nearly nine
years earlier. The ‘new evidence’ which formed the
basis for the application came from an existing witness, who had originally been interviewed in 2020, but
was not asked the crucial questions about her usual
professional practice until seen in consultation with
leading counsel in August 2023. And even then, D2
had not told the other parties about her new evidence
until October 2023, and did not make the application
until January 2024.
Having made an admission, however, defendants occasionally have second thoughts. If proceedings have
not been commenced, an admission can be withdrawn
only with the agreement of the other party under
CPR 14.1(1)(b). After proceedings have been started,
anyone wanting to withdraw an admission requires
the permission of the court (whether the admission itself was made before or after proceedings).
The exercise of that permission is in the discretion of
the court, but a non-exhaustive list of factors to be
considered is set out in CPR 14.5, which enjoins a
judge to “consider all the circumstances of the case,
including:
(a) the grounds for seeking to withdraw the
admission;
All of that was, in the judge’s words, an ‘inauspicious
start’. But he ended up allowing D2 to withdraw its
admission nevertheless. What seems to have weighed
particularly heavily in his decision was a lack of forensic prejudice to the claimant, and an absence of anything suggesting bad faith or sharp behaviour on the
part of D2.
(b) whether there is new evidence that was not
available when the admission was made;
(c) the conduct of the parties;
(d) any prejudice to any person if the admission is
withdrawn or not permitted to be withdrawn;
(a) grounds for seeking to withdraw
Thus under factor (a) the judge recognised that the
basis for the application was D2’s own mistakes and
(e) what stage the proceedings have reached; in
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APRIL 2025
