The Dekagram: 26th May 2026

This week John Schmitt covers a decision regarding a Defendant seeking to withdraw from a pre-action admission of liability: Industrial Maintenance Engineers (IME Contracts) Ltd v Webster Miller Ltd [2026] EWHC 393 (Comm). In this most fiendishly difficult of procedural areas, he is a most welcome and erudite guide. Meanwhile, Linda Nelson examines another case involving a service point revolving around service by email, usually but by no means always a dangerous enterprise.

In other news, we were intrigued to note recently that the Court of Appeal has provided a further elucidation of the decision of the Supreme Court in Griffiths v TUI [2025] UKSC 48, familiar to all our readers. In a very different context, in MR (Pakistan) v Secretary of State for the Home Department [2026] EWCA Civ 473 the Court commented [78]:

“It is necessary to identify, first, the nature of the ‘rule’ which was at issue in TUI. The rule is not a rule that (subject to exceptions) a party to litigation may not make submissions impugning the credibility or reliability of the evidence of a witness unless the witness has been cross-examined about those points. The rule as explained in the cases summarised by Lord Hodge is narrower than that. It is based on fairness, and on the principle, referred to by Bean LJ in his dissent, that litigation should not be conducted by ambush. The rule does not apply if the witness already knows, because the questions have been articulated earlier in the litigation, that his evidence is disputed, and, he is not, therefore, taken by surprise. The rule, rather, is that if he does not know in advance about the disputed matters, and has not been cross-examined about them, submissions cannot be made impugning his credibility (unless an exception to the rule applies).”

It is now clear, if it were not before, that the rule articulated in Griffiths does not operate – as some commentators have believed – as a quasi reversal of the burden of proof, but rather as a procedural safeguard intended to ensure fairness in the most general sense. As such it is really an expression of the overriding objective, perhaps nothing more.

Withdrawing Admissions: Industrial Maintenance Engineers (IME Contracts) Ltd v Webster Miller Ltd [2026] EWHC 393 (Comm)

The Facts

On 2 December 2021, in the course of unloading within the Claimant’s warehouse, the Defendant’s driver caused structural damage. The Defendant was responsible for the acts of its driver and had the benefit of insurance issued by its insurer (“GLI”) which appeared that it would (in the event that liability is established) cover the relevant loss.

On 3 December 2021, the Defendant’s broker (“Wrightsure”) notified the claim to GLI making it plain that the incident had occurred in the warehouse (and so not on a road or highway or in a public space, which is relevant to the terms of the policy). The claim was acknowledged on 6 December 2021 and on the same day, GLI instructed loss adjusters (“Artemis”) to investigate and assess the loss.

Artemis’ representative then emailed the Claimant representatives “to confirm the insurer has advised that liability is accepted…”

On 17 March 2022 GLI made an interim payment of £173,500 to the Claimant without any reservation of rights.

However, then, on 5 April 2022, GLI declined cover on the ground that the Defendant’s equipment was not being used on a road or highway or in a public space at the time the loss was sustained.

The Issues

The headline issues to be decided were:

• Did the relevant admission of liability bind both the Defendant’s insurer and the Defendant?
• If so, should the Defendant be permitted to withdraw the admission?

Discussion

The court considered that it was plain that the admission was not made on a without prejudice basis.

The Claimant submitted that condition 1(iii) of the relevant policy of insurance gave GLI a contractual right to deal with the Defendant’s defence of the matters giving rise to the claim in the name of the Defendant and as the Defendant’s agent. The right was exercised on 6 December 2021 when GLI took over the claim and passed management of it to Artemis.

The term (the conduct of defence term or “CoD”) provides:

“No admission, offer, promise, payment or indemnity shall be made or given by or on “your” behalf without “our” previous consent in writing. “We” shall be entitled if “we” so desire to take over and conduct in “your” name defence or settlement of any claim or to prosecute in “your” name for “our” own benefit any claim for indemnity or damage or otherwise and shall have full control and discretion in the conduct of any proceedings or in the settlement of any claim…”

Counsel for the Defendant submitted that the first sentence of the CoD meant that any admission made by Artemis was not binding. This was perhaps literally established on the wording. Nonetheless, the court held this would provide the absurd result that GLI could only make an admission within the claim, if it had first given itself previous consent in writing!

There was an interesting subplot as regards which version of CPR Part 14 was in force at the time of the admission, noting that the admission was made in an email of 5 January 2022 and the CPR was amended relevantly on 1 October 2023. The court held the relevant right in the present case (to withdraw an admission) neither creates not destroys a right to sue: the right, properly understood, is therefore not substantive and instead it is merely procedural. In that situation, it was common ground then that the relevant provision is to be construed as having retrospective effect (unless there is a clear indication that was not the intention of the legislature).

There was a further related subplot as to the principle to be derived from Walley v Stoke-on-Trent City Council [2006] EWCA Civ 1137 under the previous version of CPR Part 14. The Defendant argued that this imposed a requirement that a party seeking to resist the withdrawal of an admission must show that withdrawal “will affect the fairness of the trial”. The court did not accept that Walley is authority for this proposition. Instead, it was held authority for the proposition that under the then prevailing CPR, the impact of the withdrawal of a pre-action admission could only be challenged by an application to strike out.

Decision

• On the binding nature of the admission: in the court’s judgment the admission plainly bound both GLI and the Defendant. That was the effect of the CoD. GLI took over conduct of the claim and made the admission. The making of the admission would be empty if the Defendant insured was simply able to countermand it.
• In terms of the Defendant’s application to withdraw the admission:
  • It was accepted that the Defendant had a real (as opposed to a fanciful) prospect of success in defending the claim.
  • Potential unfairness to the insured was not relevant. It was noted that the Defendant and GLI had compromised all issues between them concerning GLI’s refusal of cover (including the effective reneging on the admission) and (as they ware entitled to do) are keeping the terms of the compromise confidential.
  • However, withdrawal of the admission would plainly result in unfairness to the Claimant. The Defendant would, on withdrawal, have had the benefits of the admission without taking any of the burdens. From the Claimant’s point of view, the withdrawal of the admission would deprive it of judgment on liability and so compel it to deal with the cost and inconvenience of a litigated claim on liability – on a basis that it had not considered would ever come about.
  • There was no basis to suggest the admission was made in error (the fact that the Defendant would have refused to agree to the admission was not evidence of an error, because the Defendant had no right to object) and every reason to treat it as an admission made by an experienced professional person (the Artemis representative) after appropriate discussion.

Hence, in the round it was plain that permission to withdraw the admission must be refused.

Comment

The judgment confirms that an insured remains bound by a pre-action admission of liability made on its behalf by its insurer, even when the insurer subsequently withdraws the indemnity.

The judgment is a reminder that the discretionary test for permission to withdraw an admission can lead to unpredictable results; the Defendant probably considered they had a strong argument for withdrawing the admission where their insurer had subsequently declined cover on the facts of the accident location. On another day, the court may have been sympathetic to this position.

However, the court did not consider there was material prejudice to the Defendant from the admission. That seems at first sight unsympathetic to its position. Here, the court relied on the Defendant having separately and confidentially settled its additional claim against GLI on confidential terms and “without prejudice to” the Defendant’s defence of the claim. Reading between the lines, it would appear the Defendant may have in fact a significant remedy for its (apparently uninsured) position. The court held that settlement “wiped out” any “unfairness” of GLI refusing to indemnity.

As a side note, the judgment is useful to (most likely Claimant) practitioners seeking to establish the new provisions of CPR in relation to pre-action admissions would apply to an admission that occurred prior to the provisions coming into force.

About the Author

John Schmitt was called in 2013 and now specialises in complex personal injury work. He is also experienced in representing families at inquests in a clinical negligence context and has done so through the AvMA pro-bono inquest service. Most recently he has represented a family at a four day jury inquest at the conclusion of which the deceased’s employer was ordered to produce a Prevention of Future Deaths report. He is described by the Legal 500 as having a ‘lovely manner about him’ but being ‘as sharp as a tack’.

Service out of the jurisdiction: lessons learned from Zhuraleva v Kamalova [2026] EWHC 1041 (Ch)

As the temperature in England begins to rival that of the Mediterranean, thoughts turn to the efforts of the claimant in the recent case of Zhuravleva v Kamalova[1] to serve proceedings on the defendant in Spain.

In Zhuravleva, C and D engaged in proceedings in the First-tier Tribunal (Property Chamber), which concluded with a determination that C is the sole beneficial owner of two London properties. Thereafter, in October 2025 C issued a claim for a direction from the Chief Land Registrar that the registration of those two properties be changed from Ds name to Cs name, and for other relief, including an account of rent. As D is resident in Spain, C sought permission under CPR 6.37 to serve the claim in Spain and on 17.10.25 Master McQuail gave permission for the claim form and PoC to be served on D at her address in Spain. C took steps to effect that service in November; D did not acknowledge service or file a defence, and on 17 December C issued an application for a disposal hearing to be listed. The disposal hearing was listed for 17 April 2026.

Three days before that hearing, D issued an application for a declaration that the court has no jurisdiction and an order setting aside the claim form pursuant to CPR part 11 and dismissing Cs application for a disposal hearing. Ds statement in support of her application said that she had only become aware of proceedings on 10 April when she found Cs solicitor’s email in her spam folder. The following day C issued an application seeking an extension of time for service of the claim form, permission to serve by procurador (a Spanish attorney) and waiver of the requirement to provide translations. Both applications were listed to be heard at the disposal hearing on 17 April.

At that hearing, D’s application failed. The key factors addressed by Master Mc Quail’s judgment were:

• Validity of the method of service. The day before the hearing, C produced a ‘legal opinion’, signed with a statement of truth, from the Spanish lawyer who C had instructed to arrange for service. The opinion addressed the Spanish law on service of proceedings. Given that the report did not comply with CPR Part 35 and given its lateness, the Court did not give C permission to rely on it as expert opinion. The Court did however admit it insofar as it contained factual evidence about the steps taken by the Spanish lawyer to have the proceedings served. The Spanish lawyer had signed a certificate of service confirming that attempts at service were made by Spain’s national postal service at Ds address on four dates between 4 – 12 November. On none of those dates was the door opened at the property, but notices were left informing D that she could collect the documents from the nearest post office. The Spanish lawyer confirmed that this service was valid in Spanish law and under the 1965 Hague Service Convention. CPR 6.40(3)(c) provides that service out of the jurisdiction may be effected inter alia by any method permitted by the law of the country in which it is to be served. Also, Spain has ratified the Hague Service Convention, art 10(a) of which preserves the freedom to send judicial documents by postal channels. D submitted that service of foreign proceedings by post was not in accordance with Spanish law and that valid service requires proof of receipt by the addressee (but produced no evidence in support of that contention). The court rejected this argument, accepted the statement of the Spanish lawyer and found that the proceedings were validly served on D on 4 November. This highlights the importance of having both evidence as to the law of the relevant country as to service, and factual evidence of the steps taken to effect service, when such disputes arise.
• Significance of the absence of translated documents:  D argued that she was entitled to be served with Spanish translations of the English service documents, pursuant to CPR 6.45. C disputed this: the CPR 6.45 requirement for translations applies when service is effected under 6.43 or 6.44 (service through foreign governments, judicial authorities etc or a State), but in this case service was effected by post. The Court agreed with C, noting that D had not identified any authority that serving without a translation would be contrary to Spanish law.
• Discrepancies between the address in the service order and the address at which attempts were made to serve D: (‘C Badia 54-41’ v ‘C Baldia 41’ and ‘L’Alfaaspelpi’ v ‘L’Alfas  del Pi’.) C asked that the court waive those immaterial defects. The Court held that the differences were not a material deviation from the terms of the order and did not make any difference when identifying the door at which to make delivery. Insofar as there was any irregularity, the court waived it.
• A retrospective order that the steps taken by C were good service pursuant to CPR 6.15. C argued that even if service had not been validly effected by the methods described by Cs lawyer, the court should make an order pursuant to CPR 6.15. That rule requires the court to be satisfied that there is good reason to authorise service by an alternative method. The court referred to the test set out in R v Sec of State for Health and Social Care[2] (namely that ‘good reason’ is a matter of factual evaluation and all the circumstances must be taken into account; the most important purpose of service is to ensure that the contents of the documents are brought to the attention of the person to be served, but the mere fact that the person knew of the contents is not, in itself, ‘good reason’; there must be a ‘bright line’, to determine the point from which time runs for procedural purposes and to ensure a finite limit on extension of the limitation period; the court must consider whether D would suffer any prejudice by the retrospective validation of non-compliant service). Here, the Court took into account the fact that there was no applicable limitation period under the Limitation Act 1980 and that C had taken additional steps to bring the contents of the served documents to the attention of D (on 20 & 21 November Cs solicitor emailed D at her two email addresses, enclosing the service documents and stating that service had been effected on 4 November. D did not respond to those emails, but did engage in correspondence from those email addresses between 25 November and 10 December about the FTT proceedings. In any event, D acknowledged that she had seen the emails by 10 April (when she found them in her spam folder) and that date was still within the period of validity of the claim form). Given the history, the Court inferred that D was ‘making it as difficult as possible for the claimant to effect certain service’. Given also that there was no prejudice to D by authorising service by means of the email  (D would not be deprived of the opportunity to defend the claim), the Court held that if it were required, there was ‘good reason’ to order that the steps taken by C constituted valid service.

As service had been validly effected, it was not necessary to consider Cs last-minute application for an extension of time, permission to serve by procurador and waiver of any translation requirement. C agreed that D should have time to file and serve a defence and there was therefore no question that the disposal hearing should proceed on that day. The parties were left to agree consequential directions. 

About the Author

Linda Nelson was called in 2000 and is ranked in both the Legal 500 and Chambers and Partners for her travel law work. Linda regularly advises in international personal injury cases with cross-border issues, particularly those falling within the jurisdiction of the Admiralty Court. She is well-versed in claims involving the international carriage conventions, the package holiday regulations, Merchant Shipping regulations, ship collisions and issues of jurisdiction, applicable law and limitation. She is a contributing author to Munkman on Employers’ Liability (writing the ‘Shipping and Workers on Ships’ chapter) and co-authored ‘Work Accidents at Sea’ (now in its second edition).

[1] [2026] EWHC 1041 (Ch)

[2] [2022] EWCA Civ 355