By : Steven Weddle
Steven Weddle provides a short commentary on the changes to CPR 14 and some initial thoughts as to how admissions should now, and may in the future, be approached.
Since the introduction of the CPR the status of admissions has been a fertile battle ground. By the end of 2005 most of us felt that the situation as to withdrawal was legally quite clear. It was thought that CPR 14 applied to admissions made both before and after commencement of proceedings and that the person seeking to withdraw had to demonstrate with good faith that there was a reason why he or she should be allowed to do so. The burden of proving prejudice was on the applicant. The case of Sowerby v Charlton  EWCA Civ 1610, heard in December 2005 and reported in early 2006, ran a coach and horses through this. The Court of Appeal stated that as the rule makers did not specifically refer to pre-action admissions in the CPR they must have been excluding them. So we now have a more uncertain situation than that which existed before the CPR. Plus, it is now unclear on what basis an application to withdraw an admission can be opposed.
With the speed normally associated with a knee jerk reaction the rules have been amended. We can therefore assume that those drafting and approving the rules now do not agree with the obvious intention of those who drafted and approved them in 1998!
What new rules?
As of 6th April 2007 we have a new Part 14.1A dealing with admissions made before the commencement of proceedings. CPR 14.1 is now restricted to admissions made after commencement of proceedings. This provides a simple code that should make reliance on admissions easier in certain cases.
From 6th April 2007 a party may make a written admission before commencement of proceedings in actions where the pre-action protocols for personal injury claims, resolution of clinical disputes or disease and illness claims apply.
When can it be made?
The rules apply to admissions made after receipt of a relevant pre-action protocol letter or, if one has not been served, if the admission is stated to be made under Part 14.
Can they be withdrawn?
Such admissions can be withdrawn pre-action if:
(i) the person to whom the admission was made agrees; or
(ii) after commencement, if all parties agree; or
(iii) with the permission of the court.
After commencement of proceedings a party may apply for judgment on the admission or the party who made it may apply to withdraw it.
On what basis?
The amended Practice Direction provides that the court will have regard to all the circumstances of the case including the grounds for making the application,whether there is any new evidence, the conduct of the parties, prejudice either way, when in the proceedings it is made, the prospects of success if the admission is withdrawn and the interests of the administration of justice.
Under the new rules, it will no longer be possible to rely upon an oral admission made between the parties’ representatives. However, it may be possible to convert a parole admission into a written one by incorporation in correspondence.
After relevant pre-action protocol
This change in the rules only applies to three kinds of case; those to which the PI, Clinical Negligence and Disease and Illness protocols apply. There is some ambiguity still as to whether the change will apply to PI claims over £15,000. The amendment to the PD suggests it will apply by saying that “… paragraph 2.2 of the protocol indicates that it generally applies to all claims which include a claim for personal injury.” At first reading it therefore applies but I am confident someone will try and argue that it does not.
Under Part 14
The reasoning for this change is not clear but it may be that it anticipates early admissions of liability where the insurer/defendant realises that significant time or cost will be saved by such an admission long before a Claimant is able to provide a full protocol letter. An example might be where the insurer wishes to engage in early rehabilitation to minimise the claim.
There is no longer the uncertainty of who makes an application. The person relying on the admission can apply for judgment. The party withdrawing may either make a cross application to that application or, if it wishes, may make its own application in the normal Part 23 manner.
Basis of application
The Practice Direction does not go far in helping the Court decide where the burden lies in satisfying the Court that an admission should, or should not, stand. Whilst mentioning:
- regard to all the circumstances of the case;
- the grounds for making the application to withdraw;
- new evidence;
- the conduct of the parties;
- prejudice either way;
- when in the proceedings it is made;
- the prospects of success if the admission is withdrawn; and
- the interests of the administration of justice,
there is no guidance as to the relative importance or weight of these factors.
I suggest that it is likely that the courts will interpret the provisions as follows:
- The party seeking to withdraw will have to show good reason, therefore the initial burden will be upon that party. This will probably be satisfied by showing that there is an explanation of a genuine mistake, even including ineptitude of an employee, or establishing that something new has come to light that disturbs the basis for making the admission;
- The party seeking to withdraw will have to show that withdrawal will make a difference. If the overall evidence is overwhelming then the court may decide there is no point, but where there is a genuine issue to be tried, it will probably lean towards allowing the application;
- The party wishing to rely on prejudice will have the burden of proving that it will be hurt more than the other party – a balancing exercise;
- The stage of the proceedings and the interests of justice are probably intertwined. The former rarely seems to be compelling if there is a genuine issue to be tried as the Human Rights considerations of access to justice and right to a fair trial so often tend to over-ride court convenience and cost. The latter is such a nebulous concept it will usually be subsumed in other arguments. It will probably be little more than what feels right to the judge hearing the application!
In the meantime
The changes do not apply to any admission made before 6th April 2007 so:
- What do we do with admissions made before that date? and
- What do we do about admissions until then?
Where the Defendant has made a pre- action admission and then seeks to withdraw it after issue of proceedings the Claimant has little chance of opposing the withdrawal unless it can make an application for summary judgment; i.e. it is obvious judgment will be obtained anyway. It follows that any good evidential argument put up to explain why there should be a trial will succeed.
In every case where an admission is currently being relied upon and proceedings have not been commenced the Defendant should be asked:
- Whether it intends to be held to its admission; and
- Whether it is willing to state in writing that it is intended to be a binding admission for the purposes of any future litigation as if the impending amendments to CPR 14 were already in force.
In any case where the Defendant will not confirm good intention in response to a. and b. above:
- The Defendant should be told that investigations into liability are recommencing and that they will only stop in consideration of assurances as per the above;
- In obvious cases proceedings should be commenced with a view to obtaining judgment;
- In any case where there is doubt as to the ability to hold the admission, efforts should be made to ensure that enough evidence is obtained to be able to secure liability.
A letter seeking an admission pursuant to CPR 14 should be sent in all admitted but un-issued cases that are still active by 6th April 2007. It follows that these letters should be sent on about 5th April 2007.