Withdrawal of a pre-action admission
Sowerby v Charlton [2005] EWCA Civ 1610
The claimant suffered catastrophic personal injury, rendering her paraplegic. The important dates were:
The Court of Appeal permitted the defendant to withdraw the admission because:
Lord Justice Brooke extracted, and agreed with, the approach of Mr Justice Sumner in Braybrook v Basildon & Thurrock University NHS Trust, 7 October 2004 (unreported), in drawing these principles in relation to determining whether to permit the withdrawal of an admission: '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 reasons and justification for the application which must be made in good faith; the balance of prejudice to the parties; whether any party has been the author of any prejudice that they may suffer; the prospects of success of any issue arising from the withdrawal of an admission; the public interest in avoiding, where possible, satellite litigation, disproportionate use of court resources and the impact on any strategic manoeuvring. 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.'
Finally, his Lordship noted that discretion will always depend on the facts of a particular case.
So what do we learn from this? The letter of claim pursuant to the pre-action protocol should be full and detailed, and as near to a statement of case as possible. A claimant's response to the admission must be full and detailed, identifying the issues that will no longer be investigated in terms of liability. In all multi-track cases, the response must ask the defendants to acknowledge that although the case is multi-track in value, they have properly investigated it and their admission remains valid and to indicate otherwise within a period of seven days.
Of course, one question is whether in multi-track cases claimants should ever rely on an admission made pre-issue.
This is an important decision of the Court of Appeal, surprisingly given by Lord Justice Brooke, who appears to be a stickler for interpretation of the CPR. It is disappointing that an appeal court which claims to encourage the avoidance of litigation and raises costs issues at every conceivable opportunity should, in this instance, discount the value of pre-proceedings behaviour by the parties.
Tripping and contributory fault
Burgess v Plymouth City Council [2005] EWCA Civ 1659
The claimant, who worked as a cleaner at the defendant's school, entered a classroom and tripped over a bright blue plastic container which was positioned in front of her. She fell, suffering injury. The judge found the box was 'immediately in front of her'. The box was used to store children's lunch boxes, and once emptied should have been put in a safe place in the classroom. At trial, she succeeded on primary liability, with a finding of 50% contributory negligence.
The claimant properly succeeded as there was an obstruction to a traffic route. The defendants could easily have moved the box. In fact, they had a system for doing so, and it was the responsibility of the teacher.
Surprisingly, on appeal the defendant's counsel sought to argue that it was not foreseeable that the box could cause anyone to fall. Quite properly, the Court of Appeal indicated that an item that was 26cm in height was likely to do so. Referring to the system of storing the box, Lord Justice Kay stated: 'The plain fact of the matter is that if the system had been operated correctly, the accident would not have happened.' A fresh ground of appeal was introduced, namely that it was the cleaner's job to move the box off the floor. This was not accepted.
On contributory negligence, the court adopted the historical broad jury-like approach, and agreed with the trial judge in finding the claimant 50% to blame because she entered the room through a door leading precisely to where the box was and it was, the judge found, 'large and conspicuous'.
The relevance of this case is that it was classed by his Lordship as 'an uncomplicated personal injury case'. On the facts, it appears to be. However, it requires both sides to adopt the same perspective.
The raising of foreseeability as an issue in such a case is exasperating. Breach of duty was clear, and the only issue is contributory negligence. In my opinion, it should not have reached trial, let alone the appeal court.
It is noteworthy, however, that the claimant lost her employment and, therefore, the damages were likely to be high. This may have influenced the defendants' perspective. The fact is, of course, that it should not have. Liability should be assessed separately from damages.
By Simon Allen, Russell Jones & Walker, Sheffield
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