Resiling from Admissions Past, Present

1
Resiling from Admissions Past, Present Future

• Edward Bishop
• No. 1 Serjeants Inn

2
Resiling from Admissions

• Introduction
• Pre-CPR
• Post CPR - Pre-Action Protocol and Part 14.
• Whats Been Happening?
• Ways Forward What about Contract law?
• Final Thoughts

3
Introduction

• An increasing practice
• Cock up or conspiracy?
• Impact of pre-action protocol
• Pressure on defendants
• Questions to think about

4
Pre-CPR

• Bird v Birdseye Walls Limited 1987 CA
• Leading judgment of Ralph Gibson LJ
• Mr. Methuen in what, if I may respectfully say
  so, was an admirably brief and cogent
  submission.

5
Pre-CPR

• ..said what is close to being what is right
• when a defendant has made an admission the Court
  should relieve him of it and permit him to
  withdraw it or amend it if .. it is just so to do
  having regard to the interests of both sides and
  to the extent to which either side may be injured
  by the change in front.
• Focus on the explanation (or lack of it) for the
  change of mind

6
Gale v Superdrug 1996 CA

• Decision of Waite LJ.
• Excuse (or lack of it) is part of the overall
  picture, rather than a starting point.
• Wide discretion, looking at prejudice on both
  sides.

7
Decision of Millett LJ in Gale

• Litigation is slow, cumbersome, beset by
  technicalities, and expensive. From time to time
  laudable attempts are made to simplify it, speed
  it up and make it less expensive. Such
  endeavours are once again in fashion. . It is
  easy to dispense injustice quickly and cheaply,
  but it is better to do justice even if it takes a
  little longer and costs a little more.

8
Decision of Millett LJ in Gale

• The tripartite test
• application is made in good faith
• raises a triable issue with the reasonable
  prospect of success and
• will not prejudice the plaintiff in a manner
  which cannot be adequately compensated.

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Decision of Millett LJ in Gale

• Of course, the unexpected nature of the defence
  must have been a disappointment to the plaintiff
  but I cannot think that this should count for
  anythingWhat the Court must strive to avoid is
  injustice, not disappointment.

10
Dissenting judgment of Thorpe LJ.

• Emphasis on the explanation
• Seems to agree with the proposition that the
  explanation is the starting (and possibly end)
  point
• Would not disturb judges exercise of discretion

11
Post CPR

• Chapter 10 Access to Justice 1996
• Pre-action protocols
• A system intended to build on and increase the
  benefits of early but well-informed settlements
  which genuinely satisfy both parties to a
  dispute.
• Input from APIL, FOIL, ABI,. District Judges and
  the Lord Chancellors Department.
• Final version published January 1999.

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The protocol

• Paragraphs 1.4 (1), (2) and (3).
• Applies to all claims?
• 3 months to respond to the claim stating whether
  liability is denied, and if so, giving reasons
  for their denial of liability (para 3.7)
• Where liability is admitted, the presumption is
  that the defendant will be bound by this
  admission for all claims with a total value of up
  to 15,000 (paragraph 3.9)
• Concession in the drafting stage.
• What does it mean? What about claims above
  15,000?

13
CPR Part 14

• 14.1(1). A party may admit the truth of the
  whole or any part of another partys case.
• 14.1(2) He may do this by giving notice in
  writing (such as in a Statement of Case or by
  letter).
• 14.1(5) The Court may allow a party to amend or
  withdraw an admission.
• Does it apply to pre-action admissions?

14
Whats been happening?

• Sollitt v Broady 2000 CA, Bingham LCJ
• I would observe that the dissenting judgment of
  Thorpe LJ has very considerable persuasive
  force...
• However, I accept that it is generally necessary
  to look at the prejudice which the parties will
  .suffer if permission to withdraw an admission
  is given or not given
• Support for the excuse first line - but goes on
  to endorse the general prejudice test.

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More cases

• Browning v Oates 2002
• C charged by a cow through dodgy fence
• Admission 3 interim payments
• Too late to withdraw (cow dead, fence worse,
  problems finding eye witnesses)
• A Gale test

16
Salter v McCarthy 2002

• Part 14 does not apply to pre-action admissions
• Pre-action protocol 3.9 is binding (presumably
  this was a claim under 15,000)
• Probably wrong

17
Flaviis v Pauley 2002

• C injured on a hired motorcycle
• Post-proceedings, liability admitted, payment
  into court (over 700k) accepted
• Late discovery that C a fraud (illegal immigrant,
  false passport, stolen driving licence)
• Agreed test tri-partite test per Gale
• D allowed to re-open liability on the fraud
  issue, but not generally

18
Mallia v Islington LBC 2003

• Liability admitted in pre-action correspondence
• Excuse first test applied.
• Gale no longer good law
• No excuse, no withdrawal

19
Beckett v First Choice 2003

• C injured in a skiing accident abroad. Liability
  admitted pre-action. C increased mortgage on the
  expectation of receiving damages
• D woke up to what looked like a complete defence
  under the Package Travel Regulations
• Judge applied Sollitt (prejudice plus). Too
  late for D.

20
Thorp v John Lewis 2003

• Early admission by insurers, obviously regarded
  as mad by solicitors who withdrew it in the
  defence
• Applied Sollitt but accepted D solicitors
  different view as sufficient reason to allow
  him to exercise discretion in Ds favour (C could
  not show any prejudice)
• C tried to run CFA argument. Will not work now

21
Lenton v Abrahams 2003

• Gale applied. Lack of excuse not the deciding
  factor.
• D fails

22
Ali v Car Nation 2004

• Gale applied

23
Hamilton v Hertfordshire CC 2003

• Gale applied by agreement tri-partite test.
• Good faith treated as genuine mistake not
  sure that is what Millett LJ meant (strategic
  manoeuvring?)
• D succeeded

24
Fanning v Kent Ambulance NHS Trust 2004

• Applied Sollitt

25
Walsh v Liverpool City Council 2004

• Excuse first test. Prejudice not considered.

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Where are we now?

• Some confusion
• What is the test?
• Excuse first, Gale or Sollitt?
• Sollitt rules for the time being

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The Way Forward

• What about the law of contract?
• Burden v Harrods 2005
• Decision of Calvert-Smith J

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Burden v Harrods 2005

• Exchange of letters
• We are prepared to concede primary liability,
  although we will be alleging a degree of
  contributory negligence we would argue for a 25
  deduction
• We confirm that our client is prepared to accept
  your offer to deal with her claim on a 75 basis
  in her favour
• We note your client accepts 25 contribution.
  Please may we have a schedule of special damages.

29
Burden v Harrods 2005

• D resiles in defence
• C argues contract Part 14 does not apply
• Judge Levy QC applies Gale and allows D to
  withdraw
• C successfully appeals to Calvert-Smith J
• C relies in part on Tomlin v Standard Telephones
  Cables Ltd 1969
• Same line taken by Judge Overend in Flinn v Wills
  2001

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Discussion of Burden problems and solutions

• Appeal pending
• Did parties make a contract, or was this just a
  partial admission?
• Strange that defendants should be in a better
  position if they admit liability in full
• Why not class bare admissions as contracts?

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Discussion of Burden problems and solutions

• Offer, acceptance, consideration, intention to
  create legal relations
• Letter before action is an offer to stop
  investigating and running up costs in return for
  an admission
• Admission is acceptance of offer
• But where does that leave Rule 14.1 (5)?

32
Final thoughts

• Does Part 14 apply to pre-action admissions?
• Probably.
• What is the test?
• Sollitt, but difficult to define.
• Does contract law have a role to play?
• Yes, in the case of deals on contributory
  negligence (though appeal in Burden pending).
  For bare admissions, may be arguable.