It is now well established that part 14 of the Civil Procedure Rules, which deals with admissions, does not apply to pre-action admissions (see Sowerby v Charlton [2005] EWCA Civ 1610, which was later confirmed in Stoke on Trent CC v Whalley [2006] EWCA Civ 1137).

However, what is the scope of this rule and how will the court apply it when faced with an application which seeks to withdraw a pre-action admission?

The recent case of Annie Rachel Woodland v Beryl Stopford and others [2011] EWCA Civ 266 provides an excellent example of how the court will interpret and apply the relevant rules.

The rules

First, a brief review of the relevant rules is required. Part 14.1A(1) provides that a person may, by giving notice in writing, admit the truth of the whole or any part of another party’s case before proceedings are issued.

If a party who has made a pre-action admission later wishes to withdraw that admission, part 14.1A(3) states that this may be done if, before proceedings are issued, the other party agrees or, if proceedings are issued, the other party agrees or the court provides its permission.

If the other party does not agree to the admission being withdrawn, then that party may apply to the court for judgment on the admission and the party making the admission may apply to have it withdrawn (rule 14.1A(4)).

Where the court is faced with an application to withdraw a pre-action admission, the court must have regard to all the ­circumstances of the case, including the factors listed in paragraph 7 of the practice direction to part 14.

Those factors include:

  • 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;
  • The conduct of the parties;
  • The prejudice that may be caused to any person if the admission is ­withdrawn;
  • The stage in the proceedings at which the application to withdraw is made;
  • The prospect of success (if the admission is withdrawn) of the claim; and
  • The interest of the administration of justice.

As with all applications, the court must have regard to the overriding objective which is enshrined in rule 1.

Annie Rachel Woodland v Beryl Stopford and others

This case concerned the claimant, A, who was a minor at the time of the accident and who had sustained ­serious injuries while on a school swimming trip.

The school had arranged with Direct Swimming Services, which was managed by Mrs S, to provide swimming lessons at the Gloucester Park Swimming Pool, which was managed by Basildon District Council.

Mrs S engaged Mrs B and Mrs M to conduct the lessons.

A’s lawyers wrote a letter of claim pursuant to the Personal Injury Pre-Action Protocol to Mrs S. Crawfords, who were acting on behalf of Mrs S and her professional body, the Swimming Teachers Association, responded by denying liability.

Crawfords attached a health and safety report in respect of the incident which appeared to suggest that, in light of the medical evidence at the time, A had been rescued promptly.

Upon A’s parent’s request, a further report was drafted which was forwarded to Crawfords five years later in which the author was critical of Mrs S.

Crawfords responded by admitting liability and stated that there were no allegations of contributory negligence.

However, Crawfords later attempted to withdraw its admission, which A’s solicitors refused to accept.

Proceedings were promptly issued and A pleaded Crawford’s admission.

This was followed by an application by A for judgment to be entered on the admission while the defendants made an application for permission to withdraw the admission.

First instance

At first instance the judge dismissed A’s application and granted permission for the admission to be withdrawn.

Applying the factors listed above, the judge found that the prejudice to the defendants was the deprivation of their opportunity to defend the claim on the merits and that satellite litigation against Crawfords was not to be encouraged.

He also noted that this was not a late application considering the early stage of proceedings.

The second heath and safety report was contaminated with contradictions and required clarification, and therefore the matter should proceed.

He also observed that the interest of justice required that evidence should not be forced on to a party where this may result in an injustice to that party.

Finally, the value of the claim was significant and, given the fact that it was in excess of £2m, this required careful scrutiny of the evidence.

A appealed.

Court of Appeal

On appeal, A argued that the judge had failed to give proper weight to the fact that no new evidence had prompted the withdrawal of the admission and that there had been a failure by the defendants to provide an explanation for the withdrawal.

A relied upon the case of American Reliable Insurance Company v Willis Ltd [2008] EWHC 2677, in which the court ­considered the absence of new ­evidence as being a significant factor in the weighing exercise.

Dismissing the appeal, Ward LJ distinguished ,American Reliable on its unusual facts – one could not, in Ward LJ’s opinion, take the observations of the judge in that case and elevate them into a threshold test for all ­applications to withdraw admissions.

This would have the undesired effect of restricting the discretion of the courts when applying the necessary rules.

Ward LJ stated: ‘It is quite clear to me that CPR 14.1(3) confers a wide discretion on the court to allow the withdrawal of a pre-action admission, and paragraph 7.2 of part 14 of the practice direction lists the specific ­factors the court must take into account, in addition to the need to have regard to all the circumstances of the case.’

Ward LJ also set out the approach the courts should take when applying the factors under paragraph 7: ‘A judge dealing with a case like this must have regard to each and every one of them, give each and everyone of them due weight, take account of all the circumstances of the case and, balancing the weight given to those matters, strike a balance with a view to achieving the overriding objective.’

Ward LJ noted that cases will vary and the weight to be given to the ­relevant factors will inevitably vary from case to case.

Sometimes the lack of new evidence and the lack of explanation may be the important ­considerations; in others prejudice to one side.

Ward LJ went on to argue that the judge at first instance had directed himself correctly when he held that it does not follow that the court cannot permit a party to ­withdraw an admission where no new evidence has come to light.

Solicitors, whether they are required to advise upon making an application to withdraw a pre-action admission or whether they represent the party resisting such an application, should place themselves in the shoes of the court and carry out their own ­balancing exercise.

This will assist the parties in allowing them to consider the factors under paragraph 7 in the context of the facts of their ­particular case.

Finally, it will not follow that because of the fact that no new evidence has come to light a court is likely to dismiss an application to withdraw an admission – each case will rest upon its own particular facts.

Masood Ahmed is senior law lecturer at Birmingham City University