Hello. Welcome to this Webinar on admissions of liability. My name's Niki Carter. What I thought was a good time to look at missions was now really, because there's been so much case law on the court's attitude, really, to when a defendant wants to change their mind basically about having made mission of liability on seeks to riz I'll from that admission withdraw that admission all sorts of raises a use, but basically just sort of renege on the deal. If you like that admission of liability has been made on, I thought. We take a look at the arenas in which admissions are made. One of the things I think you got to look out. But before we go any further, is to try and sort out exactly what on admission is and when we received one, because I think there can be a lot of uncertainty about the difference, perhaps between on offer, but might have been made on an actual admission of liability on what the rules say about when an admission is an admission. I think it's also important to be clear about the without prejudice rule on When I say that what I mean we know what the rule is, but the use of the time without prejudice, when it comes to making admissions and quite hurt, that means, what does it change? The nature of the admission has been made to you or not. Does it make it easier for a defendant to resign from it? Well, not on, I think. In addition, we need to look a partial admissions, you know, missions that perhaps might be causation, admissions, or perhaps an admission without accepting any causation. And exactly what that means on. We will look at pre action admissions that we look admissions before proceedings have begun post proceedings for want of a better term admission so made off the proceedings are underway. We'll look at portal admissions on. We'll look at withdrawing missions. When can they be withdrawn? How can they be withdrawn and where What forum is there for resigning from an admission? Now? One of the key things, obviously, about the reason that missions are made is that they can narrow the issues in dispute quite significantly on they can lead to our saving of costs. Partly, a defendant will tell you that that's the reason for making an admission of liability necessarily to make the climate's job easier. But it's really just so that our money could be saved. You know, no investigations are carried out into liability. That's a cost. Saving on it might lead to settlement. And indeed, the civil procedurals pulled no punches in the white book. In the commentary to the current White book. There's no question that called encourages admissions. They are something that the court is encouraging parties today, so they they certainly encouraged now in terms off proof. One of the things that we find is that the court is interested in admissions being made. Why? Well, it basically means that a party then doesn't have toe concern themselves with evidence about liability at the trial. Consequently, it maybe not necessary for a party to marshal evidence about a liability investigations. Possibly, of course, admissions can be used as basis for obtaining judgment, so receipt of an admission of liability may well lead to a situation where the part that party and received it will seek to obtain judgment on the basis of it. By the same token, we can argue that notices to admit all a useful way to narrow down the issues if you like on give notice to another party that they're required to admit France that they're required to agree how those facts will be treated on a party. And receipt of that notice needs to respond clearly to say what facts are going to be needed to prove at trial on which ones will not no later than 21 days for trial must be noticed. Admit facts be filed. I reserved I should say sorry, and that's under 30 to 18. Off the rules Responding. Failure to respond. Unreasonable failure to respond Likely to cost sanction on Don't forget that when facts are admitted there admitted only for the claim in question, not for other matters Consequently, only for the claim in question. Now we could argue that there are at least three types of admissions, and indeed the rules, I think, recognize that those admissions can be put into three categories. Part 14 is the appropriate place whenever in the rule, but we're looking admissions. What they mean what types were talking about on post faction admissions, so admissions made after proceedings have started are certainly set out clearly in Part 14. What we need to look at is what does that mean? What does the what does ah, post action admission mean will? Sometimes you might receive that in the defense defendant mace out in their defense, they admit liability for the accident. In addition, of course, part 14 1 a deals with pre action mission. So the possibility that the defendant may make a pre action of mission before proceedings that started in writing make it clear that liability is admitted. And then, of course, you could argue the third category, our portal admissions. So admissions that might be made in the pl pl or the RT a portal in the format in the form that the portal allows the admission to be made on what we know for all those three categories is that if the defendant wishes to change their mind on Riz, I'll from the admission all of those situation being that the defendant may only withdraw that admission with the consent of the person to whom it's made, I, you you're the claimant or if that's not forthcoming, once proceedings are underway, they will need to make an application to resolve from the admission. Now it's important to note, then the emissions about how made where the post pre or portal all have to be dealt with in the same way. If the person in receipt of that admission doesn't agree to its being resolved from on, that is an application to the court, the only issue off importance with an admission of liability. Regardless, Vulcan it's about whether or not it's made without prejudice or not is whether it's made pursuant to civil procedural. 14. Is it or isn't it? If you receive an admission, one of the things you want to clarify with your opponent is Are you making me an admission pursuant to several procedural 14 on when it we're talking about admissions made before the commencement of proceedings, that rule is clear. 14.1 A. You can buy given notice in writing, admit ah, whole or any part, another party's case before proceedings. Those paragraphs, paragraphs of the rule apply to a pre action admission. If one of the following conditions is met, it's made after the party making it has received a letter are before claim in accordance with the practice direction or any protocol, or if it's made before that letter is received, but that is stated to be made on the port part 40. So that underlies, doesn't it? The importance of ensuring whatever you've received from your opponent Are you clear? Are they clear what they're seeking to do is make your formal admission of liability pursuant to Part 14. No problem about trying to clarify that. Because, of course, if they haven't, then you need to carry on with your investigations into liability. Regardless, practice Direction 14 provides some guidance for the judge, really, in terms off the issues that are relevant when a party seeks to the court's permission to reside, I'll from an admission on deciding that the court it's supposed to have regard to all the circumstances and that goes on to be a list off what those circumstances include. The grounds on which the applicant seeks to withdraw the admission, including whether or not new evidence has come to light, which was not available when they made the admission. The conduct of the parties, including any conduct which led to that party making the admission to make the admission, the prejudice that might be caused to any person. If the admission is withdrawn that includes the maker and the person in receipt of the admission and the prejudice that may be caused, or any person if the application is refused. So if the admission stands, what prejudice will be cause, well, the argument would generally be to the defendant. What prejudice will they suffer? A. The stage in the proceedings at which the application to withdraw his made. How close is it to the trial date or the fixed period for trial? F the prospects off success if the admission is withdrawn off the claim or part of the claim to which the offer was made? So how likely is it that party still might be successful in going on to succeed in their claim on then last and absolutely not least, the interests of the administration off justice? Now there are, in no particular order those features on. It's certainly not the case off course that the last one in the list is the least important. How could it be the interests of the administration of justice? But those are the factors the court be looking at when deciding whether or not, for example, a defendant can resolve from an admission on if you're fighting one of those applications, it's important to going through that list. To be clear. You've addressed each of the issues in that list. Now one of the issues that remains really is the role. The status, let's say off admissions made within one of the portals. What happens to that portal admission? Once a claim leaves on, we see as a case called John some years ago, now in the portal where the courts asked to look at just this issue, both parties issued a claim in the it was in the RT, a portal actually against one another for the same accident at the same time. Mr. Others claim the liability was disputed, so the matter fell out of the portal on Part seven. Proceedings were issued, however, and Mr Johns claim Mr Fuller's insurers admitted liability and the claim proceeded through the portal. Mr. Other argued the portal admission wasn't a proper mission. It all on it was only an admission of liability for the claimant's claim in the portal. Obviously, Mr John was trying to have judgment entered in his part, seven proceedings on the strength of the admission made in the portal, the court did not agree with Mr Ola, Aun said. No, that's not right. Mr John could rely on the port of admission. Summary judgment was given to Mr John in the part seven. Proceedings on what the court set out was that generally portal admissions will be binding in Part seven proceedings on that they're going to be binding, even though the claim is left the process. A number of county court judgments have happened since that case. Probably the most recent is one called Sharm El and She Wanna, which made it absolutely clear that the admission had a binding effect on the relevant claim, even if it was made in the portal. Even of the claim subsequently exited the portal. So from a defendant point of view, quite short time to make admission in the portal. But what they should be aware office if they do that portal admission is if you like there for life subject to an application to Riz, I'll on. That's what they'll have to do if they want to resolve their mission. Even if the claim has left the portal one of the issues, of course, that arises where there's an application to resolve from an admission is well, what's the position on costs? In this particular case, the Marks and Spencer and Castle case person injury claimant received an application to resolve from an admission on obtained from the court order for them to receive the costs often occasioned by the defendant's application to withdraw its admission of liability and indeed, costs. All that costs incurred to date aren't marks and Spencer solicitors appealed against that order the cost order and argued that, well, hang on a minute. We admitted liability we applied to result from it, however, are surely the only appropriate order on cost is that the claimant should have costs often occasioned by the application on no all the costs off the proceeding, the court argued, Mark suspense is listed. Gold too far in awarding alone costs off the matter from the start, if you like. The court agreed and said the starting point for an award of costs should have been that claim it was in talks to be put in the position he would have been in had the admission not been made now, it was pretty clear that some off the costs would not have been incurred had the admission not being made, but not necessarily the case that those costs what wasted clearly, some of those sums would have been expended in any event. So costs of the whole proceedings up to that date absolutely going too far and not the appropriate order in relation to costs. Pre action admissions on withdrawal off was something the court was charged with looking at in a case called Travel on Transport for London. And in that particular case, are the issue really wills what grounds that the defendant have for resigning from its admission, the claimant had an accident on a bicycle, riding on a cycle path on, he came off his bicycle, a point where the psychopath joined the bus lane. He contacted Transport for London on after various exchanges with some claim handles acting for them. They admitted liability are subject to causation was the way it was put. Later, the defendant applied to withdraw. That admission on provision was made for withdrawal off a pre action admission application on the claimant. Didn't accept that and argued effectively are before the court. I'm first. The defendant had a strong case of liability, argued the defendant and it would be unjust to deprive it of its defense because of an error by some claims handlers. If the highway was defective, the responsibility for that defect had to live with the contractor responsible for inspection and repair On If the admission could not be withdrawn, the defendant would not be able to claim any contribution or indemnity from the contractor. Those were the arguments that were made. The issue really waas whether either of the defendants ground had any merit whatsoever. You'll note that the court decided the application should be dismissed on the facts. Neither of those grounds had any merit, said the court. In relation to the defendant's case on liability, the nature of the defect might be open to question, but it was clearly visible on a digital equipment Photographs that have been taken. The second ground ignored the effect of the act. The defendant couldn't be able to use its IT mission to prove there was a defect in the roadway and maintain an indemnity. The defendant would have to prove the defect, so certainly was no issue off the highway authority being deprived of a contribution or an indemnity. It wasn't a case where this admission was made in error on the court, asked the question. Was there new evidence what conduct was and what about the interests off justice? The court took the view. There was no explanation for the reason that an error had been made on making an admission. All of the evidence suggested a careful consideration of the available material on a reasoned decision was taken. Consequently, no explanation. No new evidence, no new evidence. Sport. Defense meant that the court was not minded to allow the loss adjusters to Riz I'll from their admission. Let's take a look at the definition, if you like off an admission of liability on one of the things I think the different it sought to do in the civil case was to argue that that mission was subject to causation. Now, one of the things we need to clear up, if you like, is the fact that there is a very clear rt, a eel peel portal of mission definition. Are defendants clearly should be unambiguous when making pre action admissions? And if there is a sense on the claimants part that the admission is ambiguous again, it's an easy one to clear up. Just be clear. Just ask your opponent. Is the admission made pursuant to part 14 or not? Claimants who receive equivocal admission should always seek clarification on Be clear exactly what it is that the admission is supposed to mean. What is it the defendant's trying to do? All of this highlights difficulties really about exactly what on admission is on. I think it's important if you're not sure what you're in receipt of to make it clear with your opponent what's actually being done. I think in terms off the case of adultery we're looking at, the defendant clearly has a heavy burden in these cases in showing how their decision to admit was made. How was the decision making process? If you like that led to that mission floored because the argument was it was a mistake on to be willing or able to come up with some evidence about how those things happened, unlikely to consider the balance of justice in favor of withdrawal if the defendant just simply change their mind, there isn't any more than that to it. In that particular case, the court came down quite clearly and said No, Actually, it's not in the interests of the administration of Dr Justice Toe allow pre action admission of liability to be withdrawn under the rule. Emulation to NRT a claim. There's no evidence to undermine the proposition that the admission been given after careful consideration off available material by competent professional advisers on I think, if that's the situation, is very difficult for a defendant to then go behind that mission on argue that some kind of mistake had been made. One of the cases that's caused both claims and defendants, perhaps more claimants. Actually, a bit of disquiet is the case of wood on Days Healthcare from 2017. In the court appeal on this is the defendant's application to Riz I'll from a pre action admission in this particular president if you remember it. The claimant had had an injury when a defect in wheelchair she was using caused her to suffer an injury. She brought proceedings. I think, against five defendants in total. On the first defendant made her on a mission off liability. The loss adjusters acting for them did. Now the time that claim was put forward. It waas a fast track kind of claim worth under £25,000 on As you will see, one of the problems wills that once the kind progressed, it became clear. Far from being worth less than £25,000 that claim was worth somewhat in excess of £300,000. On the argument from the claimant was when the defendant sought to resolve from the admission that the real reason for the application to resolve was a significant increase in value of the claim since the date when the admission had been made and that that really was what was going on here. That does raise an interesting question. I think on the question is, is a significant increase in value. Ah, good reason for resigning from an admission off itself. So the court looked at our practice direction, 14.7, and they looked at the if you like the 1st 1 in the list. The question off whether any new evidence had come to light the argument from the courts first instance was well known. Near evidence have come to light. The admission was made after the defendants have inspected the wheel trip, so they knew that there were some concerns about a document relating Teoh Wheelchair Construction that the defendants hadn't seen at the time they made the application. But the argument really was all of that nonsense on that. The real reason Waas the defendant had realized the claim was actually worth MAWR may thought in the beginning. So first instance, decision was no. That's not a good reason to resolve from an admission on. Then we need to look at the appeal on the appeal. The court took the view that will actually highly material new evidence had come to my on that highly material new evidence had come to light in relation to the value off the claim. The further evidence was in relation to the injuries sustained on the losses suffered as a result. Consequently, that's further evidence, said the court, as to the extent of the injuries allegedly caused and in consequence, quantum, for those reasons are the court took the view that the admission could be was ill from it was acceptable for it to be resolved from on. The court took the view that the respondent clearly would have had then the certainty off a final judgment against the defendants who were good for the money on that. That was a relevant matter that the judge would take into account. Remember, there were five defendants here the same time as the judge refused the applicants or appellants application. The judge granted summary judgment against two of the other defendants. Now that's in the list of relevant factors. So we could argue that on the appeal. The real reason if you like that the defendants were successful in resigning from their admission was that actually the claim, it wasn't going to be particularly prejudiced by losing the admission. Why? Because she had a number of other defendants to choose from. But I think if you see the case reported, the story that you hear is well on. Increasing value is a good reason for a defendant seek to resolve from the mission they made earlier. I would argue that's no necessarily the full story here on the presence of four other defendants, the court taking the view that summary judgment in the indeed granting summary judgment it's one of them for the climate wars. A relevant consideration in this particular case you could go further on suggests that in fact, prejudice is really the key here on if you take a look at the case or Blake on Croasdale in 2017 where the court granted permission to withdraw a pre action admission when the value of the case increased from under £25,000 at the time of the admission to millions off pounds by the time the application to resolve came along. Now it's interesting in this particular case that the court did grant permission for the defendants to withdraw their pre action admission. This was a case that began life in the M. O. J portal on one of the arguments from the defendant on the application to resolve from the admission was that they had originally intended to run an ex terp. I defense a defense along the lines that the claimant Waas, acting illegally, was relying on an illegality to bring the claim, but decided that on an economic basis they couldn't justify running that defense in the portal on letting claim exit the portal in light of the value of the claim at the time. So in this particular case, the court of U that the key issue was prejudice. I prejudice to the defendant in that particular case had the application. If you like, been allowed to remain, the defendant would have been prevented reminding a defense they would have made have been known the full value earlier. So you could argue that in fact, prejudices K, let's update it completely this situation because we just had a new decision just at the end of March 2019 on the cases the RSC and right on. In this particular case, a couple of clear point has come to us. Applications to withdraw admissions of liability are always going to turn on their own merits. They're going to turn on the merits of the individual case. The balance of the case law suggests that defendants perhaps face a difficult burden in discharging in all, giving otherwise that they're entitled to resolve from their admissions. In this particular case, the application by the defendant, Insp. EI claim to resolve from an earlier mission had been rejected. The view was that that was a perfectly proper case management decision in the light of the grounds for the defendant trying to resolve from the admission on also the fact that the stage of the proceedings, the proceedings that reach by the time the application came along was late in the day. The court took the view was clear from the respondents claim involving expert evidence medical specialists. But this was not straightforward on it wasn't reasonable for the defendants to think of modest damages might be claimed. It was clear to anybody that modest damages were not relevant here. The climate, the idea was would suffer prejudice if it was withdrawn. The application. The accident happened over four years earlier. The admission was made a year later on should not engage in any recollection or investigation into the circumstances of the accident. It was pretty clear that was gonna be some prejudice to her if that admission went away. The application to withdrawal was made after the claim have been issued a long time after the admission of inmate on months after the general loss of loss had been received from her seeking to withdraw an admission of liability at a late stage on. By the way, interim payments have been made in this case, too, when an investigation into the accident will be more difficult, Demonstrated said. The core our cavalier attitude to the administration of justice, doubtful whether the master needed to conclude the respondent was bound to succeed, but he had to consider the prospects of success. The master was right to conclude it was not appropriate to permit the admissions withdrawal. So it really isn't simple unanswered to say Well, if the value of the claim increases, that's a good reason to Riz I'll from an admission. It's much more complex in there. If you look at the cases that, but we just looked at in some detail, you'll see it will always be determined on the individual facts. One of the remaining kind of issues is we talked a bit about the role off portal admissions Wins cases Leave the portal. The three appeals in the case is off. Mulholland and Hughes review years ago in Newcastle Canticle look that whether or not on a figure offered by a defendant, Stage two off the portal was akin to an admission that the climate was in target to receive at least that amount. So the court ordered the climate some lower than the sum, which was offered by the defendant pursuant to protocol. Before the claims proceeded to apart a hearing, the defendant had made non settlement payments to the climate, including the fine loss of Office of Damages. What did that mean? Did that mean offers made by defendants at Stage two took effect as admissions are binding on the defendant on the court? Whether or not a defendant who didn't raise a particular issued stage two could raise it apart. Eight was too late that they made a mission in respect of it on then. Thirdly, if the award made by the judge states, three hearing was less than the final offer paid to the climate. Whether the judge could order repayment of the difference on the basis that the non settlement payment took effect as an interim payment. Let's take those in turns do offers made by defendants stage to take effect as admissions. No surgical impossible to construe the words offer and counteroffer in the protocol as amounting to an admission at Stage two of the protocol. No time is a defendant bound by any awful counter offer made unless accompanied by words such as agreed, the answer was no. What about raising issues? Say Street for the first time, It was the intention off the protocol cyclical. If the defendant wants to raise an issue. For example, in this case, such as the need for car hire, the time to do that was staged to if the issue wasn't raised on. An offer was made in respect to part charges. That wasn't to admit the need for hire, but not to challenge that need at Stage two was equivalent to saying the claimant didn't need to formally approve it on important wake up call, I think for defendants that one about what happens at Stage two and then, lastly, if the climate chose to go to a Stage three hearing, the claimant had to accept the risk that the court might award less than the non settle up payment, and he'd have to reform the difference. No question about that. The case of Ireland looks at the Ministry of Defense looks at the issue off unqualified pre action of missions in a claim under the portal. Does that unqualified? Is that admission mean that the defendant comp and raise allegations off contributory negligence at a later stage? Does that mean that's not possible on the appeal in this case? The court said guidance on status of pre action letters, acclaim and responses in the White book made it clear they were not the same as many pleading. Consequently, if the defendant then later wanted to rely on contributory negligence, the court, not neither party needed the court's permission toe. Add or subtract to the argument. The defendant should be ableto add allegations. Impact on quantum developed filed filing older service for the defense. The claim Claimant could enter judgment in default on the part 12 but it would be for an amount to be decided by the court. Consequently, matters that might change how much should be awarded were permitted matters that the defendant could argue about later. So even if you've had an admission of liability, be clear asked. Is it a full admission? Full liability? Because if not, it doesn't stop the defendant later. Raising issues off contradictory negligence in May's finance. They'll Phillips a case from 1997. The question, admittedly pre CPR was there was no reason of law. Why our contribution negligence plea couldn't be raised on an assessment of damages hearing. So this is a long held principle on. I think it's important that we acknowledge that that does, unless you're clear that it's a full admission off 100% liability. It leaves open the possibility that later allegations might be made about contradictory negligence and then, lastly, important decision of Woodland and Stopford in this particular case. Ah, last minute. If you like, attempt to resign, I'll from the mission of liability in the case worth many millions of pounds. Actually, in this particular case, the judge said, ah, carefully balanced consideration of the relevant factors meant that he was entitled to conclude that permission should be given on the 40.1 A's up three for a pre action admission of liability to be withdrawn in a person injury claim on the court said correctly, that lower judge had permitted party to withdraw the admission, even though new has no new evidence that come to light. There was recent given by the defendants were a reappraisal off the liability issues and reason for the mind change on in particular blaming you like claims handlers on their side for failing to obtain detailed witness statements earlier. I'm clearly the question here. Waas the question off prejudice stage in the proceedings, which the court decided was not too late on the prospects of success of ultimate victory, which the court decided were strong and all. For all those reasons, the court decided to allow the defendants to resolve from an admission it does mean from a defendant point of view. But even if there's no new evidence that's come to light, it doesn't mean the other factors in part 14 1 a three will not be relevant and that the defendant may still succeed in their application to resign from an admission that brings us to the end of our weapon. All on, I hope it's been helpful. Thank you for watching.
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