A important Personal Injury session which is a guide to running claims against the Highway Authority.
Hello. Welcome to this webinar on admissions of liability. My name is Nikki carter. Um I want to talk a bit about admissions of liability both in the context of the sort of usual Part seven World and when it comes to the portal. And I think before we begin we need to outline really what we mean by admission. And I think that's probably less straightforward than it seems. So the first thing to think about is really when an admission is an admission. So you know, we need to be clear what it is we've got and the circumstances in which the court will take the view that it's an admission. And to be honest, when we'll take the view that it's an admission because we need to be clear what we've got in certain circumstances, it might be that an offer has been made, it might be an agreement has been made. But perhaps what we haven't obtained is an admission. I think we also need to address the issue of without prejudice. And the really the meaning of that term when it comes to um admissions. Does the presence of the words without prejudice make any difference to what you've received from your opponent. Does it make it less an admission doesn't make any difference to the circumstances in which the defendant can um resigned from it. For example, I also wanted to talk a bit about partial admissions. So, you know, the circumstances perhaps in which an admission will be made, but perhaps that your opponent will argue that causation is still an issue. And so there isn't any admission in respect to causation and what that really means in terms of again, hanging onto your admission and what you actually got and whether you need to still carry out liability inquiries. We need to talk a bit about pre action admissions and I think we also need to contrast the position with sort of post proceeding admissions or admission is contained within a pleading defense being the obvious example. We'll talk a bit about the role of admissions in the portal and again, what that means and when and in what circumstances a portal admission is, let's say binding until an attempt is made to resolve from it. And then I want to look a bit about when does your opponent, when does the defendant have the opportunity the option if you like to withdraw their admission. When can they do that? How can they do that? And where can they do that? So that's setting out really the parameters of what we're going to talk about today. Let's let's go first of all to a sort of introduction, I guess to what we mean when we talk about admissions and you know, emissions can can narrow the issues in dispute, can't they? They can save costs, they can aid settlement and the civil procedurals. And the courts encourage admissions for these reasons, you know, um check out the White Book, volume one. Um The commentary actually at 14.11, the White Book and the civil procedural and the court actively encourage admissions. So with those principles in mind, parties need to be cautious about making admissions because it may well be in fact it almost certainly will be that they'll need the court's permission to withdraw from that admission because the litigation perhaps has taken an unpredictable turn. So in addition to narrowing the issues in dispute, the consequences of an admission include proof. Let's say, you know when a fact is admitted formally, neither party is going to have to reduce evidence as to it at the trial. And informal admissions however, are treated as just as pieces of evidence and they might be disproved or they might be explained away by some evidence of trial. So we need to sort out what kind of an emission we've received judgment. Clearly admissions can be used in certain circumstances as a basis for a party obtaining judgment. Um notices to admit. You know, if an admission is made in the reply to a notice to admit a cost penalty can well be avoided. So, notice to add mix, admit facts on a prescribed form which gives notice to another party in the proceedings that it's being required to either admit identified facts in the claim perhaps agree how the admitted facts will be treated. That party responding to the notice needs to state which facts are admitted and which are not. Thus the facts which need to be proved at trial can be reduced, cutting time, cutting costs. So we know that for notices to admit they need to be served no later than 21 days before trial, that's rule 30-18 sub two. Um There's no time limit for responding. And more of course than one notice to admit can be served. So responding really to a notice to admit failure to respond, remember, or an unreasonable failure to admit a fact can lead to cost consequences. Admissions can be made by completing that bottom section of that standard form the notice to admit form or by service of respondents Own form Facts are admitted for the purpose of the claim only on the basis that the admitted fact slash admission will not be used on any other occasion or by any other person. Remember that the court can allow a party to amend or withdraw an admission on such terms as it thinks just and check out part 32 of the rules for that. Let's move on now and talk about our main subject for today, which is admissions and you Know, in Zuckerman on Civil Procedure. The 4th edition. Um You what you'll see is that Zuckerman takes the view that the jurisdiction if you like to permit um withdrawal must not undermine the security that claimants can obtain from admissions otherwise admissions were being capable of inspiring sufficient confidence to deliver the advantage that the admission rule is intended to produce. So the issue really is that it's important that admissions are treated as they should be. It's important to be clear at the outset about the purpose of the admission. The rules designed to enable the party and receive an admission to proceed safe, in the belief that the litigation is effectively over in respect of the subject matter of that admission. And they relieved then of the need to invest further effort and expense in prep for contest on the admitted case. So reasonable confidence that an admission has brought an end to the contest over the admitted case is essential. If CPR Part 14, an admission under that part of the rule didn't provide security. The receipt of admission would be unable, you know, the person receiving, it wouldn't be able to rely on it confidently, they'd have to continue their preparations to prove their case in respect of it and no savings would be achieved. And there's an argument to say the whole purpose of the admissions process would be wasted, really. Um So clearly, um the rationale is it requires not that the admission be irrevocable for all time, but that the admission must be capable of being amended or revoked in certain circumstances. And certainly We'll talk about it in due course. Part 14 does give the court jurisdiction to permit withdrawal of an admission in certain circumstances. But clearly the default setting is that an admission is a serious matter and something that party making that admission needs to be clear about because if they change their minds later, they may find themselves falling on the courts, you know, discretion in an attempt to resign from it. It's not as easy to reside. I'll from the admission as as we might think and we'll talk about the detail of that in a moment. Um Clearly, um you know, the rule itself, Part 14 Post Action admissions, Part 14 1 A. Pre Action admissions and part 14 B portal admissions. Um All of those types of admissions are dealt with in the rules and the rules provide that a person may by giving notice in writing admit the truth of the whole or any part of another party's case before the commencement of proceedings under part 14, Part 14 1 A puts pre action admissions on a similar basis to formal admissions made after the commencement of proceedings, but it only applies to cases in which the Pre Action Protocol for Personal injury cames, the Pre Action Protocol for the resolution of clean disputes and the Pre Action Protocol for disease and illness claims apply 14 point once up to accordingly cases falling outside that provision which part 14 applies, it's going to be prudent for claimants not to rely on pre action emissions until they're repeated in any defense for our purposes. Today we are talking largely about personal injury. So we can we can sort of remove that anxiety if you like. Remember that. Part 14 1 A sub three provides that pre action emissions can be withdrawn before the commencement of proceedings if the other party agrees. So in effect, and we have a situation where it may be that you be you're approached by your opponent for some sort of agreement to the withdrawal of a pre action admission that's been made. And indeed, uh the new portal, the pre action protocol for low value personal injury claims in our to us or the Pre Action Protocol for Low value personal injury E LPL claims applies and a pre action of mission may be withdrawn only if the other party consents or the court gives permission. And we'll talk about a lot more detail about the way in which it works within the portal in just a short while. I think one thing, you know, it's common for many legal documents to be labeled with the term without prejudice or for conversations perhaps to be had on a without prejudice basis, but it begs the question, what does that really mean? Generally speaking without prejudice rule is designed to prevent statements made in a genuine attempt to settle a dispute for being presented to the court or the tribunal as evidence in any subsequent case. So that can be regardless of whether the statements made in writing or they're made orally and it's intended to act a bit like a veil really. I suppose that protects information said under it from being disclosed to any third party making it confidential. And in other words, off the record, if you like. This means that shouldn't attempt to settle the dispute, fail. Any offer made under the rule may not be capable of being used to prejudice another party's position. Hence the phrase without prejudice when it comes to admissions. However, the only issue of importance with an admission of liability is whether the admission is made pursuant to part 14. So it's a bit of a red herring to ask the question whether the admission is being made with or without prejudice. Clearly, an admission of liability is something that will be covered by, if you like. The without prejudice rule, since it's an attempt to settle part the claim or the whole claim. But what we need to know for our admission is whether it's being made pursuant to part 14. And let's let's be clear what we mean by that. Um If we Look at Part 14 1 a of the rules, we'll see the section that deals with admissions made before the commencement of proceedings. And I've put on the slide the exact wording of the rule, because it's really, really important. I think that we're we address this. So we know that you can give by giving notice in writing and that's the first important part admit the truth of the whole or any part of another party's case before the commencement of proceedings. Important that it's in writing, Secondly, paragraphs 3-5 of the rule apply to a pre action admission if one of the following conditions is met. A it's made after the party making, it has received a letter before claim in accordance with the practice direction on pre action conduct or in the case of P. I. Of course the P. I. Pre Action Protocol. So again, it needs to be writing and it needs to be made after that. First contact is made pursuant to the Pre Action Protocol for personal injury claims or if it's made before that letter has been sent under the protocol, then it's stated to be made under Part 14. So, we know a couple of things it needs to be in writing. It needs to be made after these if you like Pre action letter sent under the Pre Action Protocol or if it's made before That date, it should be clear that it's made pursuant to part 14 of the rules. Again, forgive me for addressing the rules, but the wording just so important, so that we get this right. Um There's, you know, after commencement of proceedings, any party can apply for judgment on the pre action admission and the party who made the pre action admission may apply to withdraw it. So, there's a potentially significant procedural difference if you like, between a pre Action of mission and one made in the pleadings. The rule envisages an application to the court for the entry of judgment and perhaps a simultaneous application to withdraw the admission. The position in relation to admissions made in the pleadings is different. Part 14.6 provides for an admission of liability with. The only only claim is for an unspecified amount of money. I liquidated damages and part 14 one. Sub 3. Cross refers to that rule 14.1 then provides where the defendant makes an admission as mentioned in paragraph three, the Claimant has a right to enter judgment except where the child, the defendant is a child or protective party or the claimant is a child or protective party, and the admission is made under .145 or 147. Accordingly, then we can see where a claimant has the ability to apply to the court for judgment on a pre action admission, he has a right to enter judgment on an admission of liability made in a defense entry of judgment then is purely an administrative act requiring no judicial impact input. So, it's a right to enter judgment if the admission of liability is made in the defense. Whereas it's just the ability to apply if it's made before that defense. So whilst we take the view that all admissions in a sense are equal in that they all require the if you like the withdrawal of the admission before it goes away an application to withdraw it. We can see a difference in the way the claimant can behave on receipt of that admission of liability, forgive me again for rules and dealing with rules, but here again, it's imperative that we Know what we're dealing with. And the next one to look at is the guidance, if you like, for the exercise of the court's discretion When um looking at an application for an admission to be withdrawn and we find it in practice direction 14, paragraph seven two. Um Clearly as we saw earlier, part 14.1 A provides a pre action of mission can only be withdrawn by consent or permission of the court as well as expressly providing that such an admission can be found, found or be the basis of an application for judgment. This rule reflects the need for admissions to help further the overriding objective by narrowing the issues and helping to keep those costs proportionate. It's unfortunately not uncommon for a party has made an admission to try to resign from that admission. And when that happens, the court might need to consider whether there was an admission and if so, whether it's appropriate for that admission to be withdrawn. So, the grounds and the circumstances that were taken into account when the court considers exercising its discretion. Uh The beginning of many are set out in your slides. So, first issue that the court will take into account all the circumstances of the case and we know that that's generally the situation when there is a question of um the exercise of discretion, but particular factors are relevant a the grounds on which the applicant seeks to withdraw the admission, including whether or not new evidence has come to night light, which was not available at the time. The admission was made. I'll say a bit more about these in a moment. I think one important thing to remember is that they're not as they say on all the best quiz shows in no particular order. Um They are not in an order of importance, you'll see that because of the last one in the list is the interests of the administration of justice and clearly that's not the least important. So these are not a question of most important. First secondly, conduct of the parties including any conduct which led the party making the admission to do so. Next one prejudice that may be caused to any person if the admission is withdrawn. The prejudice that may be caused to any person if the application is refused. So what we can see is we can see a balance if you like, of the prejudice to both parties so far. Quite similar actually on that line To the section 30 three um discretion criteria which involves a similar weighing up of the prejudice to each party, the e the stage in the proceedings at which the application to withdraw his made in relation to the date or period fixed for trial. Clearly the closer to trial, the less likely the party is to be successful in their application to withdraw. And of course the corollary argument would be the greater, if you like. The prejudice too. The party who has received the admission, if 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 um that all strikes as a double edged sword to some extent, because on the one hand, the claimants arguing that the admission is in place unnecessary for the claimant to go on and succeed. But on the other hand, the claimants seeking to argue, well, even if the admission is withdrawn, my prospects of success in this claim are still good G the interests of the administration of justice. So clearly at down at G and we don't have a situation where, you know, the court takes the view that the interests of the administration of justice are the least important things. Clearly they are not. Let's take a look at the fact and remind ourselves of the fact that despite that list, a it's not an exhaustive list and be we are talking about the exercise of the discretion. I mean, the recent case of J and a South Wales local authority in the Court of Appeal just a couple of months ago, the court had this to say there's no doubt that the Checklist, paragraph 7.2 is a useful tool for any judge faced with an application to withdraw admissions. I consider it worked well in this case. Both judges used it fully and nobody suggested the checklist admitted anything important. But and this is the key issue working through the list. Does not replace the need for the judge to stand Back and consider the application in the round as paragraph 7.2 expressly requires having regard to all the circumstances of the case. So I think we do well to remember this is not a simple, I was working through that list when we see the refrain for a judge taking into account all the circumstances we know that this is the exercise of discretion and that all the circumstances of what's going on in the case will be taken into account. There's no guarantee even if if you're the party applying for the permission to withdraw that if you feel you've ticked the boxes In Practice Direction seven, You're still going to find yourself perhaps three, paragraph seven. Practice direction 14, you're still going to find yourself at the mercy of the court's discretion. And I think it's well for all parties to remember that um it's you know, I hate to use this phrase because it's so annoying when you're trying to come up with principles that might apply, but we need to remember that each case will be decided on its facts and that's something that I think runs through all the cases that we'll look at all the principles we're going to try um and list here. Um a slightly unusual case in in portal admissions came along not long actually, after the new portal first came into being in the case of Ebola and john um both parties issued a claim in the portal against one another for the same accident in the claim brought by Mr muller liability was disputed and so the matter fill out the Portal and part seven proceedings were issued. However, in the claim brought by Mr john, the defendant, Mr Mueller admitted liability. Um Mr john solicitors in the past seven proceedings then sought to rely on the portal admission of liability in the past seven arena. The argument Mr other argued certainly that the Portal of Mission was only an admission of liability for the claimant's claim. The claim proceeding through the portal not for the accident as a whole. They argued the settled portal claim was a contractual compromise and couldn't bind the court in the past seven proceedings. And they also argued that the insurers who admitted liability were not actually able to make that admission for Mr Euler as it prejudiced Mr Mueller's position. Both parties in that claim effectively argued that the portal admission or one party argued the portal admission bound the subsequent Part Seven proceedings in exactly the same scenario based on the same fact in a reserve judgment, the court held Mr john couldn't could rely on the portal admission and gave summary Judgment to mr John in the Past seven Proceedings. I should just add the second point made. I think in Mr Bullard's position that you know, effectively his insurers couldn't bind him with the admission was entirely unsuccessful. I'm sure most of you have had that situation in the past where the argument runs that the insurer has actually prejudiced if you like the claimants position by making an admission of liability, we know that part of the insurance contract is that the claimant or the purchaser of the insurance has given the insurer the right if you like to make those kind of admissions on his behalf. So that argument was never going to succeed. Um There have been a number of other developments um from the portal cases that have left the portal and the question being asked, what's the role of the portal admission in part seven proceedings. Um Probably the sort of latest version of that story is a case called Chamberlain kibwana. They're all county court matters, but the Chamberlain kibwana case at Brighton County Court in October 2016 seems to have been the last chapter in this running argument. Clearly, portal admissions are binding in part seven proceedings, defendants who admitted liability within the Portal for the Arte protocol, albeit through the agency of their insurers said this case could not then bring a claim against the portal claimant inconsistent with that admission. However, an admission could not have any binding effect in regards to a subsequent claim between, let's say a portal defendant and a third party. So only between the original two parties involved. But portal admissions are not just for portals, they are binding and they are still relevant when the claim has left the portal And moved on to part seven proceedings. And I think when we look in a bit more detail portal admissions in a short while we'll see that defendants ought to be mindful of that fact. We're making their admissions simply because you know it's going to involve an application for them to try and raise ill from the admission later. Um Clearly the portal admission will bind the case regardless of whether it's left the portal or not. In the case of I just want to examine the issue in relation to um costs in terms of withdrawing admission and the cases. Marks and Spencer um and Castle. The defendant company appealed against a cost order which had been made in favor of the claimant during the course of his personal injury claim. Um martin Spencer admitted liability but applied For permission to resolve from it under all 14.1. Um The claimant had issued an application for an interim payment and a 20 minute hearing have been listed For April 2000 and 11. And there was an issue About whether the two applications should be dealt with together since one of the main grounds for seeking the interim payment was the admission of liability. The defendant had made the claimant wouldn't agree to the hearing being vacated, so the judge ordered his application to remain in the list and the defendant's application to be listed separately, but did indicate the claimant might want to think about That and change his mind. The hearing went ahead on the 4th of april. The application was adjourned of course, to be heard at the same time as the defendant's application, which was in fact ultimately successful. The defendant, marks and Spencer was ordered to pay the costs of the claim and up to and including the date of the order granting permission to resolve from the admission and that included the costs of the hearing. On four April the argument from the defendant was, the judge had gone too far in awarding claiming all the costs to date. And I think that the decision in this case, you know, although a personal injury claim, it had been entitled to receive the cost of an occasion by the defense application to withdraw its submission of liability, the defendant's conduct hadn't been so serious as to merit the awarding of to the claimant of all the costs incurred to date. The starting point really, the court said, it seemed clear that significant element of the costs on both sides would have been incurred even if the admission haven't been made. I think that that must be true. Um The effect of the judge's order was then to be punitive, in a sense, it rendered the defendant liable for substantial costs which would have been incurred in any event and which if the defendant were to succeed at trial, it would ordinarily expect to recover from the claimant or at least not to have to bear. The defendant's conduct had not been so serious as to merit imposing what was described as a significant financial sanction and Further the defendant should have been granted the cost of the aborted hearing on four April 2011. So I think starting point for an award of costs should be that the claimant was entitled to be put in the position he would have been in had the admission not been made and we know that in costs, orders for successful withdrawal of admissions, that's the starting point. Clearly some of the costs would not have been incurred had the admission not been made, but it didn't necessarily follow that those were costs which had actually been wasted. And I think, you know, it's difficult to argue with that decision whilst costs are clearly incurred by claimants as a result of admissions having been withdrawn, it seems unreasonable for the entire costs the claimants actually incurred prior to the hearing for resigning for the emission to be awarded. That that that seems excessive. Um I think in terms of the sort of criteria And the way in which the courts might approach the criteria for withdrawal from an admission in a certainly set out in practice direction, 14, we can do no better than look at the case of travel. uh travel and transport for London was the case heard in 2000 and 15 and it's worth just reminding ourselves briefly. I will just briefly do it with the facts in the case, but also then just having a look at the reasons the defendant gave for resigning from their admission attempting to the claimant was riding his bicycle on a cycle path at a point where the cycle path joined a bus lane, he came off his bicycle and suffered a back injury. He said there was a defect in the roadway and he contacted the defendant. Transport for London, the body responsible for maintenance of the highway exchange various emails with a firm of claims handlers um that were instructed by Mr Cavell um and the ultimate result of the email exchange and the claim handlers who acting for transport for London, apologies, not for mr devil. Um That firm admitted Liability in March 2014 subject to causation, that's how it was put. The defendant applied to withdraw that admission of liability made on its behalf by the claims handlers. And provision was made for a withdrawal of pre action admission application. The claimant didn't accept the defendant's attempt to withdraw liability basically the grounds argued were argued before the court were twofold. Firstly, the defendant argued, they had a strong case of liability on liability and it would be unjust to deprive it of its defense because of an error by the claims handlers. If the highway was defective, the responsibility for the defect had to lie with the contractor responsible for inspection and repair and then if the admission could not be withdrawn, the defendant would not be able to claim any contribution or indemnity from that contractor. So the issue really was whether either of the defendants grounds had any merit and consideration was obviously given to the civil liability contribution act. Let's take a look at what happened. The application was dismissed. The court took the view that on the facts neither ground had any merit in relation to the defendants potential case on liability. The precise nature of the defect shown might be open to question. However, it was clearly visible on a digital image taken from a number of yards away and the same defect was seen by the defendant in november and assessed after the accident and assessed as a pothole. The 2nd ground ignored the effect of the act. The defendant would not be able to use its submission to prove there was a defect in the roadway and thereby to obtain an indemnity. Rather, the defendant would have to prove the defect it followed. The defendant was not prevented from obtaining a contribution or imp immunity and empty under the act. The instant case was one where the admission was made, uh in error, no explanation was offered as to how that error came about. All of the external evidence suggested there had been a careful consideration of the available material and a reasoned decision based on that material. There was no evidence whatsoever to undermine that proposition. So in those circumstances said the core the total lack of any explanation coupled with the lack of any new evidence or at least no new evidence that might support the pleaded defense was of considerable significance. So consideration of the relevant factors, new evidence, conduct, interests of justice. All of those are acted in this case to result in the defendant being unsuccessful in withdrawing their admission. I think you know, one of the things that was considered was the relationship between the admission and the stated suggestion that it was inverted commas subject to causation. And I think you know certainly if we look at the data and the LPL portal admission definition, we can see that it doesn't really allow um for a defendant to keep the causation issue out of what's effectively a liability of mission. Remember in the portal the defendant's admitting duty breach and damage caused and indeed the implied damage caused part of the portal is that that Damage causes more than £1,000 worth of pain suffering and loss of amenity. Um It seems curious that the defendant conceded and the judge agreed that there was an admission of liability when that was stated to be subject to causation because of course, without Causation, there's no liability even if a breach of duty can be established. And Baroness Hale as she was at the time in Greg and Scott back in 2005, had this to say, you know, it's now horn Book law that damages the gist of the action in negligence, um that's reflected in the pre action protocol, which makes it clear the need in any particular place for the claimant to tell the defendant how an ambiguous admission is to be interpreted. The claimant made the understanding of the admission clear by pleading that it was treated as an admission of liability in any event. We cannot think, say the decision might be explained by the approach the judge took to the evidence, he concluded if there was a breach causation was plainly established when he said, there's no doubt Mr. Carvel sustained some kind of injury when it came off his bicycle at the relevant point on the cycle path, all of its highlights, the real difficulties about exactly what an admission is and seems to ignore the contemporaneous case law, suggesting it will be required to found a judgment all that will be fire, found to uh find a judgment is an unequivocal admission. So, a number of things come from this defendant's need to be unambiguous. We're making pre action admissions and if they're not claimants who receive what they consider to be equivocal admissions are going to need clarification and ask for it or simply state what the admission is understood to mean. I think blurring the lines in the way that the travel case suggested was acceptable is clearly unacceptable. Um defendant has a heavy burden in showing how the decision to admit was made. Remember on summary assessment of the evidence. Justice Davies didn't rate the defendant's putative case on liability. However, the forensic points put forward by the defendant regarding the claimant's account of his accident or perhaps varied account of his accident amounted possibly to an arguable defense. I think the judgment sends a clear signal to defendants. They're going to have to explain how their decision came to be made with capable legal advisers acting for them. They're likely to be expected to explain with reference to the surrounding documentation, how the process was flawed. How was the decision making process flawed and the courts unlikely to consider the balance of justice in favor of withdrawal just because the defendant has decided effectively to change their minds. Um you know, maybe on sober reflection and maybe with more bullish legal advisers, they want to run a defense that they previously rejected. So I think it's clear that all those um reasons the things the defendant's gonna need to think about and take into account when deciding it might be an idea to try to resolve from an admission. I'm clearly the final sort of word on cavil is that it wasn't in the interests of the administration of justice to allow a pre Action admission of liability to be withdrawn under rule 14.1 A sub four sub b in relation to a road traffic claim, there was no evidence to undermine the proposition that the admission had been given after careful consideration of the available material by competent professional advisors. And I think for claimants in attempt to be clear what kind of admission has been made to them. One of the things to think about is to make sure the defendant makes clear how the decision was made and the reasons for the decision being made and indeed clarify whether the admission Is set to be made under part 14 of the rules. Remember as we talked about, it depends how and when your admission was made, remember that admission needs to be in writing if it's pre action and it needs to be made after the letter before action is sent to the defendant or expressed To be made under part 14. I think one of the things we're both parties that's unacceptable is to have admissions, you know, the status of which is unclear to both parties. Um the claimants, we can't prevent ourselves or stop making our investigations into Liability If we haven't received a clear and unequivocal um admission in accordance with part 14 of the rules, I think the case of Wood and Days Healthcare, which went to the court of appeal in 2017 is a really interesting case. Um in terms of the application of the factors contained in practice direction 14 and the way in which those factors are applied. And let's just remind ourselves of the facts of Wood and days health care. uh the respondent claimed to have a shoulder injury uh in October 2009 into a defect in her wheelchair. She actually brought proceedings I think against five different companies or bodies and the first defendant who was the manufacturer of the wheelchair, the other defendants included um Primary Healthcare Trust, I think an NHS trust and it was said that the wheelchair had been supplied to the respondent by one or both of those bodies. In June 2010, loss of justice acting for the appellant made a formal admission of liability and The claim had been presented in 2000 10 as currently was the phrase on a fast track claim involving less than £25,000 Subsequently 2012. So that's two years after the admission was made, it became clear that it was a claim for more than £300,000 proceedings were issued and at that point the appellant applied for permission to withdraw the admission. The claimant argued. There was no new evidence about the circumstances of the accident and that the only change was actually that the value of the claim had increased significantly since the date when the admission was made. The court refused initially to allow the defendant to resolve from its pre action of mission and the application Made by the defendant defendant. one was an application to consider all the circumstances of the case, including the factors set out in the practice direction. It seems that the real grounds of the defendant's application was that the claimant's claim had in fact increased significantly in value since 2010 when the admission was made. And at the pre action stage, the claimant's listers advised the claim was considered to fall into the fast track. But Now it was worth some 10 times that some um what's clear about this case is that from the claimants point of view, a significant increase in value. Wasn't they considered a good reason for resigning from an admission. And the court first considered in Accordance with practice direction 14, Paragraph 7.2. And the first paragraph remember a which is whether any new evidence that come to light that there was no new evidence about the ax accident circumstances and that the admission was made after the defendant had actually inspected the wheelchair. I think there were concerns raised that the defendant had not been sent a report by um the medicines and healthcare products regulation agency when making its submission. But it was decided that even if that were the case, a reasonably diligent investigator would have realized that and sought the document while investigating the claim. So I think we need to be careful about new evidence and the definition of what new evidence is. You know, is it truly new evidence and the evidence that the party making the admission could have obtained with proper diligence before the admission was made. So clearly the increase in value was the real reason. Um However, as mrs Justice laying commented, that was a risk inherent in any personal injury claim. A commercial decision was taken through its loss of justice, weighing up that risk against the cost of litigation and liability was admitted. The fact that the claim had now increased in value, it was said on our first instance decision was not a good reason to allow a defendant to re Zeile from its admission, the court then went on to consider on the pd 14, paragraph seven point to be the conduct of the parties. The issue of delay was raised by both the claimant and the defendant. The court wasn't particularly swayed by the submissions. There was a delay between admitting liability and intimating its desire to re Zeile from that admission. Um And the hearing, the court at the view that the defendant had acted promptly once proceedings were issued and the delaying in the hearing being listed was not because of their conduct. Um Despite the claimant arguing that a year have been lost due to the defendant's successful application for disclosure from the claimant. Um The defendant argued that claimants delay in waiting until the end of the limitation period before issuing her claim meant it couldn't apply to withdraw its submission until proceedings were issued. Once the claimant had issued precision proceedings, it made the application promptly. You can see where the delay arguments can vary hugely, particularly where claimants have delayed in issuing proceedings from the original date of the accident and that period coming into consideration. So the first instance decision was no the admission could not be resolved from. Is the appeal that becomes interesting. Now the decision to refuse permission to withdraw the admission said the court was not right, it was indisputable, highly material. New evidence had come to light and that was in the form, further evidence as to the extent of the claimants injuries allegedly caused and in consequence Quantum so interesting way of putting it that the increase in value wasn't the reason of itself, but that new evidence has come to light, which meant there was an increase in value um Would have been presented as a fast track claim at the time of the admission was now worth more than £300,000 and the loss of justice had no reason to contemplate the amount of claims being increased so dramatically. Um the judges approach that a risk of increasing quantum was inherent in any claim would tend to discourage pd admissions of liability in small claims admissions were made by having regard to cost proportionality and the loss of justice. Although they were at fault hadn't seen a report of the accident, which would have assisted their case, the judge found they wouldn't have admitted liability had they seen the report, I think, significantly, and at the same time as she refused the appellant's application, the judge granted summary judgment against the Primary Care trust and the NHS Trust. So at the time, the respondent, if you like, had the certainty of a final judgment against defendants who were good for the money. And it was a matter that the judge should have taken into account. The appeal would be allowed and the appellant will be given permission to withdraw the admission. Remember when it comes to a balance of prejudice, the claimants situation, the claimants position becomes really important. She'd had um admissions if you like. And it's got summary judgment against two other defendants. Clearly, no great prejudice would be uh suffered by the claimant if this admission were withdrawn. So I think we've got to be careful in style in that case. As the case that says yes, an increase in value is a good reason to withdraw and admission. I don't think that that's what that case says at all. I do think it's important to look at the way in which the increase in value, if that's the case comes about and whether it can be styled as new information. And again, I think we need to be careful to think about whether it truly is new information or whether indeed those facts were available to a sort of diligent defendant at the time of making of the admission. I still think a significant factor in that case was the lack of prejudice to the claimant on the basis should already obtained summary judgment against two of the defendants. Um You know, in terms of prejudice and and if we look at cases like blake and Croasdale from 2000 and 17, um where the court granted permission to withdraw a pre action admission when the value of the case increased from around £25,000 to millions of pounds. Um Typically in highway tripping cases, the only way to challenge inspection records is to seek statements from local residents, how long the defects been, their dates and so forth. If liabilities admitted early, those investigations just aren't undertaken. The cost of which clearly wouldn't be recoverable. If liability is suddenly put an issue months or years later. What's the likelihood that, for example, a local residents going to recall the duration of the defects so long after And the common thread might be that prejudice? I is it fair to the claimant to pull if you like, the rug from under them? When key items of evidence might no longer be available will be the case in the majority of matters, blake is perhaps an exception in that a brain damaged clients. Evidence wouldn't really realistically change over time in any event. and when facing a claim worth millions of pounds and alleged illegality, there are high stakes for the defendant combined with public policy considerations. So although this case began life in the portal, um an admission was made, no new evidence came to light. The defendant's position was, had it known been known that the claimant was going to be involved in criminal activity at the time of the accident, which meant they appeared to have a X Turpin claim based on illegality, if you like defense. It appeared they elected not to run that defense on the basis it wasn't proportionate in a low value matter. And when the case value increased dramatically, they argued actually, we've now got a good reason to defend the case after all. And in allowing the application, the judge noted the claimant suffered brain damage, there was no prejudice as to evidence he could give. Now it was the same as he always could have given. And the question of a prejudice in that case was probably key. Let's take the case of the Royal Automobile Club, the RSC and right in 2000 and 19, this was an application by a defendant in a p I claim to withdraw an earlier admission Of liability in respect to the claimants injuries under again, practice section 14, paragraph 7.2 that had been rejected. Um the court said that was an appropriate case management decision in the light of the defendant's grounds were withdrawing the admission, um the party's conduct and prejudice to the parties the stage the proceedings had reached and the interests of justice And the claimants prospects of success and the move from being worth about 25,000 pounds to over a million. Clear the respondents claim involving expert evidence from a number of medical specialists was anything but straightforward and it was unreasonable for the appellant to expect that a modest amount of damages would be claimed. The respondent had never suggested that she'd suffer prejudice if the admission was withdrawn. The accident happened over four years earlier and the admission was made one year later, should not engage in any recollection or investigation into the circumstances of the accident and the prejudice to the appellant of upholding the admission was self evident. It would face a significant claim, but that was bound up with the nature of the claim. Clearly, while the appellant's application to withdraw its submission had been made shortly after the claim had been issued. That was a long time after the admission been made and months after the schedule of loss was served seeking to withdraw an admission of liability a late stage after interim payments have been made. And when an investigation into the accident would be more difficult demonstrated, and this is the phrase, a cavalier attitude to the administration of justice and it was doubtful whether the master had needed to concede to include the respondent was bound to succeed, but he had to consider the party's prospects of success. And those were not such as to inevitably lead to a conclusion that leave to withdraw the admission should have been given. The master had been right to conclude it was not appropriate to permit the admissions withdrawal. And I think applications are always going to turn on their merits and we need to remember that the balance of the case law suggests. I think that defendants do face a difficult burden to discharge. And you know, admissions should not be made lightly. Perhaps would be the take out from that. One thing to address is just in relation to the portal. And you know, the idea that offers within the portal might equate perhaps to admissions in case of Mulholland and Hughes did look at this. This issue in three of the appeals in the Mulholland cases, the court awarded the claimant to some that was lower than the sun which had been offered by the defendant, pursuant to the protocol before the claims proceeded to apart eight hearing. The defendants have made the non settlement payments to the claimants, including the final office of damages and the claimants were ordered to repay to the defendants. The difference between the sums awarded by the court and the final offers already paid them. Something we explained to claimants all the time in the portal. Two of the cases involve claims for higher charges where although an offer been made by the defendants in relation to hire charges, the court actually disallowed the claims in their entirety because there was no evidence from claimants of a need to hire an alternative Vehicle. The issue of need wasn't raised by the defendants at stage two and it was raised for the first time At the park eight hearing and offer made by the defendants at the end of stage two had been made. So the court awarded a claimant are some lower than the sum offered by the defendant before the claims proceeded to part eight hearings, the defendants had made non settlement offers to the claimants including their final offers of damages. Clearly one of the things to be thought about and we need to address the issue of portal admissions. And just before we go on to do that, I want to just say one word about dishonesty because I think it's a pervasive theme and the case I wanted to just briefly touch on was the case of new um and um are Barreda and that case was heard in 2000 and 19. The initial claim was advanced for no more than £50,000 and an admission of liability was obtained by the time proceedings were issued, it was worth over three million and the defendants applied to withdraw it on the basis the claimant had been fundamentally dishonest as to regards the circumstances of the accident and the value of the claim was inflated significantly about beyond the sun. The defendants expected when it was first made, the Master dismissed the application as she felt there was weak evidence of fundamental dishonesty and held at the size and character of the claim had an altered fundamentally. It's on the appeal in this case that the judge agreed with the latter finding by the Master as to the prognosis, it was guarded in the letter of claim. The insurer could have contemplated the claim could be substantial. But the conclusion that the defendant was entitled to withdraw its submission because uh there was a reasonable prospect of success in the fundamental dishonesty argument and it's been inappropriate for the Master to have undertaken a nuanced assessment of those prospects on paper. And what was said was that the claimant wasn't prejudiced by the withdrawal of the admission and the administration of justice required the issue of dishonesty to be considered by the court in full before the claimant could be compensated. So clearly, if the change the withdrawal of the admission is in relation to dishonesty, that is different. And that fits in with the portal scenario where we know that if the defendant wants to withdraw the admission on the grounds of alleging dishonesty, um that's something or fraud. In fact, is the word used, isn't it? In the protocol, that's something the defendants able to do without formal admission. Going back to the Mulholland case. Two issues come from that. That's really important. I think in terms of looking at the link between the portal And the admissions made there and the opportunity if you like for the defendant to make offers and make their comments about the claimants claimants. Stage 2 2 things are with the issue from Mulholland. Then firstly where the offers made by the defendant. Stage two were admissions and binding on the defendant in the court. Secondly whether a defendant who didn't raise a particular issue at stage two could raise it At a part eight hearing. Thirdly, if the award made by the judge was less than the final offer already paid to the claimant. Could the judge ordered repayment of the difference on the basis the non settlement payment if you like took effect as an interim payment. Do office made by the defendant stage to take effect as admissions. The court took the view they did not impossible to construe the words offer and counter offer in the protocol as amounting to admissions. And at stage two of the protocol at no time. Was the defendant bound by any offer or counteroffer made unless accompanied by such words as agreed. Bear that in mind, it's really important in all correspondence. Never mind just the portal. We need to be conscious when we're being made an offer um when we're being taped were taking part in an admission for a certain part of the claim. What about raising issues at stage three for the first time It's the intention of the protocol. That if a defendant wish to raise an issue, such as need for higher, he should do so at stage two. Clearly, by not raising the issue of need in respect of higher um to make an offer in respect of higher charges wasn't so much to admit the need for higher But not to challenge need at stage two, that's equivalent to saying claimant, you don't need to formally prove it. Consequently the defendant was bound by that. And what about repayment of um The late settlement payment? Well, if the claimant chose to go to stage three hearing, they have to accept the risk that the court might award less than the non settlement payment and they would have to refund the difference. And we can see that I think from the protocol, um it's quite clear that that's the situation. Um Ireland administrate defense raises an interesting and side issue that I just want to briefly touch on um an unqualified pre action admission of liability in a claim under the pre action protocol for personal injury claims didn't dis entitle a defendant from subsequently raising issues of contributory negligence. And I think we take a look at the appeal in that case. Um The guidance on the status of pre action letters of claim and responses in the white book makes it clear they're not the same as pleadings. Nor are they many pleadings and to categorize them or treat them in that way is just wrong. If they're treated as many pleadings, they'd ceased to operate as elements of an open handed conduct, said the court between prospective parties to litigation and would become documents drafted by lawyers with content designed to keep open claims and defenses for as long as possible. In that case, the judge made a mistake in holding that an unqualified admission in a pre action protocol correspondence um prevented the M. O. D. From later relying on contributory negligence. The parties didn't need the court's permission to add or subtract from matters set out in the letter of claim and the defendant should be able to add allegations that impacted on the quantum of damages. If the defendant failed to file an acknowledgement of service for a defense, the claimant could enter judgment in default under part 12. If the claim was for an unspecified sum, then judgment would be for an amount to be decided. That was a practical purpose. So consequently defendants are entitled to raise at a later stage allegations that affect the amount of damages including contributory negligence. So again be clear if you're receiving an admission, is it for part of the claim, is it for the whole claim? Consequently, if not, there may be a risk that you know, arguments for con ed will be made later. Um case of maize finance and phillips which was a pre cpR case, it was stated there is no reason of law why contributory negligence could not be raised on assessment of damages hearings. So the point is not, not, not a new one. Um can't finish this topic without mentioning the Woodland Stopford case in relation to resigning from admissions. A very sad and horrendous case, the accident involved. But in that particular case, the court took the view that a judge to carefully balance the relevant factors and Been entitled to conclude he should give permission under Rule 14.1 a sub three for a pre action of metal admission of liability to be withdrawn in a personal injury case. Um you know, the reappraisal of the liability issues by one of the defendants um did give an explanation for reappraisal, namely there had been insufficient investigation of the facts, blame on the claims handlers for failing to obtain witness statements and the judge had in mind those factors but had in mind that prejudice, which he analyzed the stage in the proceedings which he did not consider to be too late. The prospects of success which he concluded were there and the overall interests of the administration of justice, all of which required a balance to be struck at the end of his assessment of the weight to be given to those matters. He weighed the factors for and against and was entitled to conclude the balance came down in favor of allowing the swimming Association to withdraw from their admission of liability. This is also the case. Just the last couple of words to say where the court took the view that the factors listed in the practice direction had to. We're not necessarily in any hierarchical order, nor was it implied in the practice direction than any one factor had greater weight than any other factor. And sometimes the lack of new evidence and the lack of explanation might be important considerations in other cases, prejudice to one side or the other would provide a clear answer. So whilst there was no new evidence to justify the change of mind, the judge was correct to direct himself that the court could permit a party to withdraw and admission where no new evidence had come to light. So if nothing else, I think that last case makes it clear that we need to be mindful that the factors in the practice direction are nothing more than factors to assist in the exercise of the discretion and the absence. For example, as there was in the case of Woodland of no new evidence isn't fatal to the defendant's application to resolve from their admission, which in that case they were granted. Thank you so much for listening. I hope it's been helpful and thank you very much
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