Admit in haste: repent at leisure

Published 17 February 2022

While there are significant benefits in making early admissions of liability, the limiting of costs being the most obvious, there are dangers of doing so prematurely and 2021 has proved to be a bad year for those seeking to withdraw (or resile from) admissions with the courts showing a marked reluctance to permit it. 

In personal injury cases, the reality is that in the vast majority of cases it will be necessary to obtain the permission of the court to withdraw the admission. The Civil Procedure Rules (CPR) provide (PD14 para 7.2) that when deciding whether to grant permission the court is to have regard to all of the circumstances of the case, including:

• 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, including any conduct which led the party making the admission to do so;
• the prejudice that may be caused to any person if the admission is withdrawn;
• the prejudice that may be caused to any person if the application is refused;
• 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;
• the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the admission was made; and
• the interests of the administration of justice.

The way in which these have been applied in a number of recent  decisions shows how hard it is to clear the bar.

In J v A South Wales Local Authority [2021] EWCA Civ 1102 the claim concerned alleged negligence on the part of the defendant in relation to its care of the claimant when a child. Various admissions had been made by the defendant including ones admitting breach of duty and on several occasions the defendant had sought and obtained a number of stays, a significant reason being what the authority considered was best for the claimant who was in its care. However, following a Supreme Court decision which, in the eyes of the defendant affected its liability, it sought permission to resile from a number of admissions that had been made some seven years before. At first instance permission was granted but this was overturned in the High Court. The Court of Appeal rejected the defendant’s appeal. One point that the Court of Appeal made was that while the judge at first instance had considered each of the factors set out above, “she did not stand back and consider "all the circumstances of the case"”. It appears that one of the most significant factors for the court was that had it not been for the stays sought, ostensibly in the claimant’s best interests, judgment would have been entered long ago.

Dulson v Popovych [2021] EWHC 1515 (QB) is a clinical negligence claim which related to an alleged failure to refer a cancer case within the correct time. An expert report was obtained by the defendant and breach of duty was admitted. However, the expert was unaware of local guidance in force which provided a longer referral time which had been complied with. The defendant sought to amend its defence and withdraw the admissions. The judge considered that “there has been inadequate investigation and considerable delay in bringing the application from July to December 2020” and refused permission to resile from the admission. In any event, the judge considered that “the point raised lacks any real prospect of success.”

The case of Shah v London Borough of Barnet [2021] EWHC 2631 (QB) demonstrates circumstances that are more commonly encountered. The claimant brought proceedings against the defendant alleging that they had tripped and fallen over on an uneven pavement. It was alleged that the pavement had become uneven due to raised tree roots which had grown through the surface pushing up the slabs. 

The defendant initially denied liability after it inspected the location of the accident, the inspection taking place in January 2019. Matters progressed and in February 2020 the defendant’s insurers  reviewed the claim noting amongst other things the wrong defect had been inspected. The claims handler at the insurer therefore wrote to the claimant saying "Under the Highways Act (1980) the council must carry out regular inspections and repair any  defects as a result. In this case the council accepts that there was a defect and that it was not repaired within a reasonable time frame". In August, in response to a request for clarification from the claimant’s solicitors, the admission was repeated, an e-mail from the claims handler saying “I can confirm that liability will no longer be in issue".

In December 2020 the defendant’s insurers instructed solicitors. Proceedings were issued in January 2021 and the following month the defendant’s solicitors indicated an intention to resile from the admission of liability, almost a year after the admission had originally been made. The judge refused to grant the defendant permission to resile saying:

“On the particular facts of this case, I believe it would reflect poorly on the justice system to allow the defendant another last “bite at the cherry” in respect of liability arguments when so many experienced claims handlers have reviewed the matter already, and over a considerable period of time. An important component of the overriding objective is compliance with rules and practice directions and therefore with protocols. The purpose of the pre-action protocols is to narrow issues and resolve disputes, or parts of them, wherever possible without having to engage expensive court resource. If issues are to be re-opened at a later stage there need to be very good reasons as the overriding objective makes clear. There are likely to always be some cases where there is a reappraisal of liability risk assessments and it is appropriate, for a combination of reasons, to allow an admission to be resiled from, but this should not be commonplace.”

While it is clear that the judge accepted that there are situations in which permission to resile was appropriate, it is equally clear that their view was that the circumstances in which permission would be granted would be few and far between.

Such an approach from the courts, whether one agrees with it or not, sends out a warning that all those involved in the handling of claims need to heed: before making any admission, be very sure that it is the right thing to do. Such a decision will be dependent on all the facts of the case but the following will help to inform that decision:

• Be certain that the claimant’s case is fully understood and sufficiently particularised that it can be properly assessed and investigated.
• Consider whether sufficient evidence has been obtained to enable a properly informed decision to be taken or whether there are matters that still need to be investigated.
• Is enough known about the quantum of the case? This is a matter of prime importance given that claims can easily progress from relatively low value to high value, particularly where a head injury may be involved.  What might seem to be an economically justifiable admission at one level of quantum can quickly turn to an expensive binding admission, particularly if the level of quantum has influenced the level of investigation.
• If in doubt, seek advice: a second opinion is often well advised, even if all it does is to confirm the case handler’s view. This may necessitate the instruction of solicitors to advise but given the difficulties that can be encountered if a wrong decision is taken it may, depending on the facts, be a step worth taking.
• Where there is doubt, it is best not to make an admission rather than make one which leads to regrets.

Despite the caution that needs to be taken, admissions are important and should, where it is appropriate, be made in order to comply with the aims of the Overriding Objective and the Pre-Action Protocols as well as to save costs, both one’s own and your opponents. What does need to be avoided is a decision to make an admission which might prove costly down the line, hence the need for caution.

Should you require further information or guidance to support your decision making do not hesitate to contact one of our Casualty Injury experts below.