Did you miss? Marshall & Edwards v Marshall & Marshall [2025]

Marshall & Edwards v Marshall & Marshall [2025] EWHC 3376 (Ch) Deputy Master Linwood, High Court (ChD), 5 December 2025

Overview

A recent decision of Deputy Master Linwood concerns two linked applications in respect of an alleged pre‑action admission under CPR 14.

It provides a helpful summary of the principles the court will take into account when deciding (i) whether an admission has been made within the meaning of CPR 14.1 and (ii) if so, whether the Court ought to exercise its discretion to allow the admission to be withdrawn.

Background Facts

The Marshall family ran a successful retail business including a farm shop and garden centre in Hampshire. A partnership agreement was executed in 1997 between Peter Marshall and his children, Sharon (the Second Claimant) and Dean and Gary (the Defendants) (the “Agreement”). Peter died in January 2017. The First Claimant was Peter’s wife and the primary beneficiary under his will.

Upon Peter’s death, a legal question arose: did the partnership automatically under section 33(1) of the Partnership Act 1890 and/ or pursuant to the terms of the Agreement?

The parties’ solicitors initially debated this question in correspondence without agreement. In March 2018 however, the defendants’ former solicitors shared a written opinion from counsel which stated that the partnership had dissolved upon Peter’s death. The parties then proceeded on that basis and sought to negotiate the winding down of the business.

However, by 2019 matters had reached an impasse. The claimants accused the defendants of continuing to trade instead of winding up the business.

In August 2019, the Claimants asserted in a formal letter before action (“LBA”) that “the partnership came to an end on the death of any of the partners.” The LBA also stated that the claimants’ case was that accounts should be taken and the business sold.

The defendants’ solicitors responded on 30 September 2019 stating, crucially, that there was “no dispute” that the partnership must be wound up and the business sold and that the only outstanding issue for resolution was whether certain land formed part of the partnership property. The claimants’ solicitors responded and said, amongst other things, that they were “pleased to see” that the defendants accepted the partnership must be wound up and the business sold.

Years later, in 2021, the defendants asserted in without prejudice correspondence (in respect of which a limited waiver of privilege was agreed by the parties) that the partnership had not dissolved on Peter’s death. They made this assertion only twice, stating that they had received “further advice,” but gave no explanation.

Only in April 2025 (six years after the LBA), in their defence, did they openly deny dissolution and assert continuation of the partnership.

Issues

There were two issues for the court to determine: (1) Was there a pre‑action admission within the meaning of CPR 14.1? (2) If so, should the defendants be granted permission to withdraw it under CPR 14.5?

Issue 1 — Was there an admission?

CPR 14.1(1) allows a person, before proceedings are issued, to “admit the whole or any part of another party’s case by notice in writing”. An admission can only be withdrawn before proceedings are issued with the other party’s consent. Once proceedings are issued, permission is required from the court.

In order to be capable of being an admission, a statement must be responsive in nature. An averment (the advancement of a positive case) cannot be an admission. In determining whether or not a statement is an admission or an averment, the court must determine which party first deployed or “put in play” the relevant statement.

The claimants’ position was that the LBA had formally set out their case on dissolution and that the defendants had admitted that the partnership had dissolved in their response. The defendants submitted that as they had first asserted the dissolution of the partnership in 2018, their later repetition of that position was an averment, not an admission.

The Deputy Master rejected what it described as the defendants’ “first‑mover” argument, finding that who raised the topic first in earlier correspondence was irrelevant. The LBA crystallised the claimants’ position, as required by the pre‑action protocol.

Furthermore, the defendants’ response was a considered reply, made by solicitors after taking leading counsel’s advice. Saying there was “no dispute that the Partnership must be wound up” was unequivocally an acknowledgement of the claimants’ contention that Peter’s death had dissolved it.

Issue 2 — Should withdrawal be permitted?

The grounds upon which the court may permit an admission to be withdrawn are set out at CPR 14.5(a)-(g). The court must consider all the circumstances and treat the relevant factors in a non-hierarchical fashion.

The claimants’ primary contention was that the admission was made “in error” based on previous advice. No detail was given of how or why any advice was wrong, or why the position changed years later despite the receipt and circulation of further written advice from different counsel re-stating that the partnership had dissolved.

The Judge found the claimants’ explanation to be inadequate, unsatisfactory, and deficient — failing the requirement of a full and frank account of the circumstances and reasons for withdrawal. Merely changing counsel or receiving a new legal opinion does not justify   wholesale reversal. Considering all the circumstances and applying the relevant factors together, Deputy Master Linwood refused permission to withdraw.

Conclusion

The consequence of the admission and the refusal to permit withdrawal was that significant parts of the Defence were struck out and the defendants were ordered to pay the claimants costs “of and occasioned by” the admission.

The court’s decision reinforces the importance of precision, transparency, and accountability in pre‑action correspondence and reflects the principle enshrined within CPR 14.1(2) that parties will not be permitted to “backtrack without good reason.”

Faisel Sadiq, Emily Betts and Victoria Dacie-Lombardo acted for the successful claimants. The defendants have sought permission to appeal.

Article by Victoria Dacie-Lombardo