Applications to withdraw pre-action admissions – prospects of success, prejudice and the administration of justice

Practitioners will be aware of the matters a court is to have regard to in deciding whether to give permission for an admission to be withdrawn at paragraph 7.2 of CPR 14PD, namely:

a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which     was not available at the time the admission was made;

b) the conduct of the parties, including any conduct which led the party making the admission to do so;

c) the prejudice that may be caused to any person if the admission is withdrawn;

d) the prejudice that may be caused to any person if the application is refused;

e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;

f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the admission was made; and

g) the interests of the administration of justice.

The case of Newham London Borough Council v Arboleda-Quiceno provides some insight into the application of those matters and in particular the factors of: the prospects of success of the claim; prejudice; and the administration of justice.

The Case

The claim arose out of an accident occurring in 2015 whereby the Claimant injured his knee whilst playing football on an AstroTurf pitch in the Defendant, local authority’s, recreation ground. In pre-action correspondence the Claimant indicated that the value of the claim would be more than £50,000 and the insurer made an admission. In 2018 on filing his particulars and schedule of loss, the value of the claim had increased to £3 million. The Defendant sought to withdraw its admission, denied liability and alleged fundamental dishonesty. Both parties obtained witness statements from people present on the pitch on the date of the accident and issue being which pitch the Claimant fell on.

The application for withdrawal of the admission was considered by a Master on the papers. In refusing the withdrawal the Master relied in particular on the prejudice to the Claimant, the interests of the administration of justice, and that, whilst the defence of fundamental dishonesty had a realistic prospect of success, the evidence supporting it was weak and contained inconsistencies. The Master also considered that the Claimant’s claim had not fundamentally changed since the pre-action letter and was not of a different size or character despite the higher amount claimed.

On appeal, considering Wood v Days Healthcare UK Limited [2017] EWCA Civ 2097, it was noted the Master had not been wrong to conclude the Claimant’s claim was not of a different size or character, despite the increase in value to the claim, as the pre-action letter had not been specific, had only been drafted some four months post-injury and had indicated that investigations were pending. It was held that it would have been clear to the Defendant that there was no confident prognosis at that time.

However, in considering the merits of the Defence, the Master erred in conducting a mini-trial on the papers alone. She had found that the Defence had a realistic prospect of success, but had then gone too far in considering inconsistencies in that evidence and in concluding that it was weak. Such a conclusion could rarely be justified on the papers alone and in the absence of cross examination (an example of where such a conclusion on the papers alone could be justified was where it was based on a review of evidence, such as a document or video, in which there was no prospect of cross examination).

Whilst the merits of the claim were only one of three factors relied on in the Master’s decision, the Court on appeal noted the Master had relied on them all equally so it could not be said that she would have reached the same conclusion without the error.

In considering the matter afresh, the Court noted there was no specific evidence from the Claimant as to the prejudice he would suffer as a result of the withdrawal, in particular the Claimant had obtained a witness statement and had indicated there were several other potential witnesses to the incident and there was no indication that those individuals were unable to give evidence on the question of which pitch was in use. Further, in consideration of the good administration of justice, the Court noted it would be an affront if the Claimant were compensated where there was a doubt over the reliability of his account.

Points to note:

• Where investigations into injuries are ongoing or pending, explicit reference to the same should be included in the pre-action correspondence so as to avoid later criticism of the valuation of the claim and undermine a Wood v Days Healthcare UK Limited argument;
• The importance of demonstrating prejudice in permitting the Defendant to resile at the relevant stage of proceedings;
• A doubt about the reliability of the Claimant’s account can amount to a factor in the good administration of justice.

Article written by Kieran Coleman