Christopher Tromans considers the pre and post-CPR authorities on relying on previous admissions
From the implementation of the Civil Procedure Rules (CPR) in April 1999, views have differed on the extent to which reliance could be placed on previous authorities when interpreting the CPR.
A robust stance was taken two months after implementation in Biguzzi v Rank Leisure Ltd [1999] EWCA Civ 1972, [1999] 4 All ER 934. This was an appeal in a striking-out case initially decided under the previous rules. Notwithstanding this, Lord Woolf, the then Master of the Rolls, held that the CPR were a self-contained code and that earlier authorities were no longer generally of any relevance.
However, by December 1999, there were indications that this line was not necessarily going to be held. In UCB Corporate Services Ltd v Halifax (SW) Ltd (1999) The Times, 23 December, another striking-out case, Lord Justice Ward observed that Biguzzi did not mean that the thought processes underlying decisions under the previous rules should be completely thrown overboard. Subsequently pre-CPR authorities have been relied on where the CPR deal with matters also covered in the previous rules, albeit in different language, as opposed to situations where the CPR comprise wholly new material.
One such field has been the making and withdrawal of admissions. Order 27 of rule 3 of the Rules of the Supreme Court (RSC) provided that a party could apply for judgment where the other party 'made admissions of fact or of part of a case... by his pleading or otherwise' and authorities showed that the terms of the rule were sufficiently wide to include an admission in a letter written prior to commencement of proceedings.
Nevertheless, a party who had made an admission could be permitted to withdraw it, the procedural opportunity being opposition to an application for judgment.
In Bird v Birds Eye Walls Ltd (1987) The Times, 24 July, Lord Justice Ralph Gibson held: 'When a defendant has made an admission, the court should relieve him of it and permit him to withdraw it or amend it if in all the circumstances it is just to do so having regard to the interests of both sides and to the extent to which either side may be injured by the change in front.'
That not very exacting test was refined further by a majority of the Court of Appeal in Gale v Superdrug Stores PLC [1996] 1 WLR 1089. Gale has been followed in determining withdrawal of admission cases and has been seen as broadly consistent with the overriding objective.
The relevant provisions of the CPR in relation to admissions are in part 14. CPR 14.1(1) states that 'a party may admit the truth of the whole or any part of another party's case', and CPR 14.1(5) provides that the court 'may allow a party to amend or withdraw an admission'. At first sight, these provisions do not appear to differ significantly from order 27. The courts have continued to apply Gale except where a claim does not exceed £15,000. Paragraph 3.9 of the personal injury protocol establishes a presumption that a party is bound by an admission. While allowing an admission to be withdrawn, Mr Justice Keith in Hamilton v Hertfordshire County Council [2003] EWHC 3018 (QB), [2003] All ER (D) 260 (Dec) pointed out that the use of conditional fee agreements requires risk assessments by solicitors representing claimants at an early stage and admissions which are later withdrawn jeopardise the availability of funding.
More recently, however, there have been changes of approach in relation both to pre-CPR authorities and to admissions made prior to the commencement of proceedings. In Sowerby v Charlton [2005] EWCA Civ 1610, [2006] 1 WLR 568, the claimant had suffered severe injuries in a fall while visiting the defendant's property. The defendant's solicitors admitted liability in an open letter. Proceedings were commenced and the defence denied liability. That part of the defence was subsequently struck out and the case went to the Court of Appeal principally on the issue of whether CPR 14.1 applies to admissions made prior to the commencement of proceedings. In giving the judgment of the court, Lord Justice Brooke took as a starting point the dicta of Lord Woolf in Biguzzi. It was necessary to go straight to the provisions of the new rule. If the answer is clear from the wording of the rule, a consideration of pre-CPR authorities will not be helpful.
The wording of CPR 14.1 differs from the wording of order 27. CPR 14.1(1) states that a party may 'admit the truth of another party's case'. There is no reference to 'admissions by pleading or otherwise'. A 'party' cannot be so described until proceedings have begun, and a 'case' will not be formulated until a statement of case is prepared. Accordingly, in a multi-track case, the court is not concerned to control the withdrawal of an admission made prior to the commencement of proceedings.
While it follows that a party can withdraw a pre-action admission without permission, the making of the admission can still be of evidential value in an application for summary judgment and in Sowerby on the facts the striking-out was upheld.
The Court of Appeal in Sowerby also gave updated guidance on when it would be appropriate to permit the withdrawal of an admission of the truth of an opponent's case when the admission had been made after issue. It endorsed the criteria identified by Mr Justice Sumner in Braybrook v Basildon & Thurrock University NHS Trust [2004] EWHC 3352 (QB), [2005] All ER (D) 320 (Apr): in exercising its discretion, the court will consider all the circumstances of the case and seek to give effect to the overriding objective.
Among the matters to be considered will be:
The nearer any application is to a final hearing, the less chance of success it will have even if the party making the application can establish clear prejudice. This may be decisive if the application is shortly before the hearing.
District Judge Tromans sits at Plymouth Combined Court Centre
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