The is article first appeared in PI Focus Magazine – May 2021
The issue of ‘admissions’ has given rise to its fair share of litigation. Here, I consider what is a valid, binding admission, and when a defendant can withdraw their admission. Admissions can be made by a party before or after the commencement of proceedings and, once proceedings have been started, a party may enter judgment upon a pre-action admission made by another party.
A valid admission?
The first question to consider is whether the defendant has actually made a valid, binding admission. The wording of the admission is very important.
The Personal Injury Pre-Action Protocol provides useful guidance about how an admission should be worded. It states that (no later than three months after acknowledging the letter of claim), the defendant should state if liability is admitted by confirming that the accident occurred, that it was caused by their breach of duty, that the claimant suffered loss and that there is no defence under the Limitation Act 1980.
If the defendant states that liability is admitted or primary liability is admitted, that is a binding admission of liability. If they say they ‘will deal with your claim’, it is not. If they say breach of duty is admitted, this is not a full admission of liability (although it is still quite useful). If they say causation is not admitted, this is arguably not a full admission of liability (although see Cavell v Transport for London [2015] EWHC 2283 (QB), below). While one would not reasonably expect a defendant to concede that all of the losses claimed were due to their breach of duty, they are required at least to concede that it caused some loss (the extent of which remains to be proved). If any admission is made in a without prejudice letter, it is of little use as it cannot be shown to the court.
Greater Manchester Fire & Rescue Service v Veevers [2020] EWHC 2550 is a useful example of the above points. This was a fatal accident case relating to the death of a firefighter. On the eve of the inquest, solicitors for the fire service wrote to Mrs Veevers’ solicitors, saying:
‘Our clients are not in a position to consider an admission of liability and we have not undertaken a detailed forensic analysis of the potential for liability in any civil claim on their behalf. The purpose and objective in making the comments which we make directly below is to attempt to remove any additional stress from the family during and immediately after the inquest…We write in open correspondence in order to advise that our clients are willing to compensate the estate and dependents of Stephen Hunt pursuant to the Fatal Accidents Act 1976… for any loss which they may prove to be attributable to the incident on 13 July 2013 together with payment of their reasonable costs’.
At detailed assessment at the end of the case, the fire service argued that the costs of the claimant’s lawyers attending the inquest were not recoverable, in view of the above assurance that the fire service had provided. But the court held that the costs were recoverable, as the defendant had not given a formal admission of liability. The court stated obiter that, had liability not been in issue, the costs of attending the inquest would not have been recoverable.
Resiling from an admission
Of course, even if a defendant gives a valid, full admission of liability, they may still be entitled to resile from that admission at a later stage. CPR 14.1A provides that where a defendant makes an admission before the commencement of proceedings, they may withdraw that admission (before proceedings have been issued) if the party to whom they made the admission agrees. After the issue of proceedings, they can only withdraw that admission with the consent of all the other parties, or the court’s permission.
CPR 14 .1 provides that, where a defendant makes an admission after the commencement of proceedings, the permission of the court is required to withdraw or amend a decision. The court’s power to allow a party to retract an admission is discretionary, but Practice Direction to Part 14 (paragraph 7.2) states:
‘In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including: (a) 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; (b) the conduct of the parties, including any conduct which led the party making the admission to do so; (c) the prejudice that may be caused to any person if the admission is withdrawn; (d) the prejudice that may be caused to any person if the application is refused; (e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial; (f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the admission was made; and (g) the interests of the administration of justice.’
None of these factors has more importance than the other (although, depending on the facts of the case, some may be more relevant than others; Woodland v Stopford 2011 EWCA Civ 266).
As a general rule, the later in the proceedings an application to resile is made, the lower its prospects of success. The court will want to know why the applicant has left it so late. As for the ‘conduct of the parties’, this would be relevant where, for example, the claimant held back important evidence until after the admission was made. Below are some cases that show the court’s approach when considering applications to withdraw admissions.
In Foster v United Lincolnshire Trust [2016], the defendant applied to withdraw only three weeks before trial, and more than three months after the new evidence relied on had come to light. The court denied its application.
Sometimes, a genuine error by the defendant can be sufficient grounds for allowing an application to resile (provided that the defendant makes its application promptly). In Moore v Worcestershire Acute Hospitals NHS Trust [2015] EWHC 1209 (QB), the defendant made an admission following ‘a careless and cursory’ reading of a medical report. The court said the fact that this was a ‘pure mistake’ was significant, because it distinguished it from being a ‘tactical change’. The defendant had a reasonable prospect of defending the claim if allowed to withdraw from its admission. The application was made very early in the proceedings, and the court granted the defendant’s application.
By contrast, see Cavell. The claimant injured his back when he fell off his bike due to a pothole in a bicycle lane. The defendant’s claims handlers admitted liability and proceedings were issued. Shortly after filing its defence, the defendant applied to withdraw the admission, arguing that it had been made in error, and that it had a strong case on liability. The wording of the defendant’s admission had been ‘Please note liability will not be an issue, subject to causation’ and the court concluded that ‘The only sensible meaning of those words is that primary liability for the accident is admitted but no admission is made as to whether the injury suffered (or some part of it) was caused by the accident. It clearly was an admission of liability’.
The court noted that the defendant had offered no explanation as to how an error had been made when admitting liability. Its claims handlers were hugely experienced and all the available evidence showed they had carried out a careful consideration of the liability issue. No new evidence had come to light supporting the defendant’s case. It was not in the interests of justice to allow withdrawal of an admission after mature reflection by highly competent professional advisers.
In the Chancery Division case of SL Claimants v Tesco [2019] EWHC 3312 (Ch), the defendant had made a ‘carefully considered’ admission of liability in their pleadings. No new evidence had come to light – the defendant had simply reappraised the evidence and decided that in fact it did not support the admission previously made. This reappraisal had occurred almost three years after the pleadings were originally filed. The court denied the defendant’s application.
Wood v Days Healthcare UK Limited [2017] EWCA Civ 2097 shows that ‘new evidence’ is not limited to liability issues. The claimant’s solicitors initially indicated that they considered the claim to be a fast track case. The first defendant’s claim handlers admitted liability in full. The claimant’s solicitors later advised the first defendant that it was becoming clear that the value of the claim was much higher than initially anticipated and, when court proceedings were issued, the statement of value in the particulars referred to the claim being ‘in excess of £300,000’. Shortly after the commencement of proceedings, the first defendant applied to resile from its admission of liability.
At first instance, the first defendant was denied permission to withdraw the admission. At the same hearing, judgment was entered against a second defendant. The first defendant appealed the decision to deny its application to withdraw. The Court of Appeal said that the increase in value of the claim more than ten-fold amounted to highly material ‘new evidence’ (CPR 14PD 7.2(a)). An increase in value of a few thousand might not amount to ‘new evidence’, but such a significant increase did. This in itself would have been enough to allow the defendant’s application; but the fact that judgment had been entered against a second defendant also meant that there was little prejudice to the claimant in allowing the first defendant to retract its admission.
By contrast, see Royal Automobile Club Ltd v Catherine Wright [2019] EWHC913 (QB), in which the claimant fell down stairs while at work. On receiving the letter of claim, the defendant alleged that it should have been brought through the Claims Portal, but the claimant’s solicitors replied that the claim was certainly in excess of £25,000. The defendant admitted liability. The claimant later served a schedule valuing the case at over £1m. Shortly after the commencement of proceedings, the defendant applied to withdraw its admission. The defendant’s application was refused. The court said it was clear from the outset that this was a complex case, and there was no reasonable basis for the defendant to decide that it was a low value claim.
These cases show that the circumstances in which a party may be permitted to withdraw an admission are not limited to those where new liability evidence has come to light. At the same time, a defendant has a relatively high evidential bar to overcome in order to persuade a court to grant its application; and if there has been delay on its part or the matter is close to trial, this can be fatal to its application.
Matthew Tuff is senior associate at Moore Barlow and Co-Ordinator for the APIL Procedure SIG (special interest group)
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For more advice on defendant admissions and major trauma cases, please contact Matthew Tuff.
