The Dekagram: 6th May 2025

This week Ben Rodgers relays two tales from the coalface, both relating to applications to resile from admissions. Readers will be interested to know that in both cases the court applied the balance of prejudice test with the result that the defendants’ applications were refused.

Resiling from pre-action admissions

This article is about two recent cases we have appeared in recently, in which courts have considered applications to withdraw pre-action admissions.  The typical way such an application comes about is that the insurer admits liability and then, when the insurer later instructs lawyers to serve a defence, those lawyers disagree with their insurer client’s earlier assessment.  A claimant and their lawyers can get quite worried about an application to resile, because the case on liability will often consist of little more than the admission.  That paucity of evidence can equally make the defendant’s lawyers believe they have a strong point.  These can therefore be quite emotive applications.  Each side comes to court convinced it should all go their way.  What should a judge make of it?

In the first of our two cases, the claimant was found unconscious at work with a serious head injury, in 2022.  He could not remember the accident.  His employer conducted a contemporaneous investigation, which reconstructed the accident and made some lukewarm recommendations for avoiding a repeat.  The insurer admitted liability in 2023.  The claimant served the claim in 2024, whereupon the employer served a defence purporting to resile from the admission, along with the necessary application for permission to resile.  The application was supported by evidence from the defendant’s solicitor stating that he, unlike the insurer, had interviewed all the relevant witnesses.  A week before the hearing, the defendant served witness statements from those witnesses themselves.  The claimant appeared simply to have fallen over, which was not the employer’s fault.  The High Court nevertheless dismissed the application to resile.  The witnesses had all been available at the time of the contemporaneous investigation.  It was almost impossible for the claimant now to investigate liability, two years after the admission had been made.  The prejudice to the claimant of allowing the application outweighed the prejudice to the defendant of denying it.

In the second case, the claimant suffered a serious foot injury in 2022 as a result (she said) of a defect in a walking surface for which the defendant was responsible.  The insurer admitted breach of duty six months later, also in 2022.  Over the following 2.5 years, the insurer made interim payments and discussed medical evidence and settlement.  When the claim was served, the defendant’s solicitor took one look at the photographs of the defect and applied to resile, asserting that the admission must have been made in error.  The value of the case had “ballooned” from low-end multi-track level to about £150,000, and that was a complete change in the character of the case, as per Wood v. Days Healthcare UK Limited [2017] EWCA Civ 2097.  Master Davison, in the King’s Bench Division, refused the application to resile.  Fundamentally, he thought the photographs showed a dangerous defect.  He did not think £25,000 to £150,000 was all that much of a change in the character of the claim.

Three learning points emerge:

1. Applications to resile from admissions tend to fail, because they tend to amount to this: “we’re lawyers, the insurers are bunglers, they should not have admitted liability.”  This will lack conviction where the insurer is, in substance, the person making the application to resile.
2. One of the CPR Part 14.5 considerations is “The prospects of success of the claim.”  It is tempting to regard this ground as a double-edged sword: if the case is bound to fail absent the admission then the prejudice to the claimant must be very great if that admission is withdrawn.  However, this does not cut both ways.  If the claimant has no case absent the admission, this consideration works only in the defendant’s favour.  Judges want to do justice.  If a claim is unarguable, they will not want to hold the defendant to it.
3. It is no good merely asserting that the admission should not have been made.  A defendant needs to show, with evidence, why it was made.  This will mean laying cards on the table.  Yes, a defendant can say “we’ve had a rethink.”  But it is risky to do no more than that.  The court will assume that the admission was made following mature reflection and for a good reason.  If the defendant does not waive litigation privilege and reveal what evidence and advice it had when it admitted liability, the court will give the claimant the benefit of the doubt.  The judge, anxious to do justice, will take this as a reason to suppose the case fundamentally to be a just one.

About the Author

Ben Rodgers was called in 2007 and now specialises in personal injury work with an emphasis on accidents abroad, including maritime accidents (he is himself an excellent sailor). He is listed for personal injury in the Legal 500, where he is said to be ‘go-to counsel for complex liability disputes; calm and composed, but will fight ferociously when required.’