Withdrawing admissions of liability – a question of prejudice?
Aston Knight Solicitors, a local solicitor in bury, recently succeeded in defeating a Defendant’s application to withdraw their pre-action admission of liability.
Solicitor James Winterbottom takes a look at the facts and the law.
The Claimant suffered a tripping injury in January 2014. Initially the injury did not appear overly severe and as the likely claim value at that time appeared no more than £25,000 the case was submitted into the MOJ Portal on 10th June 2014, in accordance with the Low Value Protocol for Employers and Public Liability Claims.
The Defendant, a local council, was represented by an experienced (and rather notorious) claims management company who admitted liability on 4th July 2014.
Thereafter the client entered a lengthy process of NHS investigations and surgical procedures, the duration of which meant court proceedings had to be issued on a protective basis, in January 2017, and then served in May 2017. However, in the light of the ongoing investigations and symptoms, it was appreciated the value of the case was now likely to exceed the upper portal limit of £25,000 and the matter should now be pleaded up to £50,000. The Defendant’s insurance claims handlers were notified and the matter was removed from the MOJ Portal.
The Defendant’s solicitors filed and served a defence on 15th June 2017 within which it was indicated, for the first time, they sought to withdraw the admission of liability. Oddly (and perhaps this influenced the Court’s decision) the reasoning provided was scant: it was alleged there had been an inspection in October 2013 during which the defect was not present and that the area in question was inspected every 6 months. No such inspection records were ever disclosed however, and the reasoning as to how and why the supposed October 2013 inspection came to be appreciated was never properly explained.
Absurdly, the Defendant’s solicitors pressed for consent to the withdrawal before finally making an application on 6th October 2017.
Although a supporting statement accompanied the application, again the reasoning as to how and why the alleged October 2013 inspection came to be known was scant, and there remained no sign of any inspection records. The Defendant’s central point appeared to be that the admission of liability was made only in the context of the matter appearing low value and that when it was appreciated the case was likely to be higher value (now pleaded up to £50,000) a detailed review and denial was now warranted.
The key issue in our minds, as the Claimant’s solicitors, was that of prejudice. Typically in highway tripping cases the only way to challenge alleged inspection records is to seek statements from local residents as to the duration of the defect, dates of repair and so forth. As liability was admitted early no such investigations were undertaken, the costs of which would not have been recoverable. If liability was suddenly put into issue, close to four years post-accident, how could such enquiries take place? What is the likelihood a local resident would recall the duration of the defect so long after?
Whilst the Defendant’s solicitors were surely aware of the importance of this point, they had little answer, instead, quite ludicrously, stating there would be no prejudice to the Claimant, only disappointment.
The Court dismissed the application, focussing heavily upon the prejudice point. The Judge agreed with our central point: i.e. that the Claimant’s opportunity to investigate and challenge liability would be severely diminished given the date of the accident. The Court further ordered the Defendant to meet the Claimant’s costs of defending the application.
So what can be taken from this?
Applications to withdraw admissions of liability will always likely turn upon their own merits.
Recent cases, both in the High Court, include:
Wood v Days Health UK Ltd & Others  WHC 1079 (QB). This case involved an allegedly defective wheelchair. Similarly to this matter, the case had originally appeared lower value and one of the potential defendants had provided an early admission of liability. Later, when it was appreciated the case was higher value, an argument was raised by that defendant that another defendant should be liable instead, and that the admission should be withdrawn. In identifying that the real reason the admission was being withdrawn was due to the increase in value of the claim, the Court dismissed the application on the basis the fact a claim might increase in value is a risk all defendants should be aware of when making admissions and it is not a valid reason to withdraw. The Court also noted that the Claimant had now lost the opportunity to inspect the allegedly defective wheelchair, which had since been destroyed.
Conversely, in Blake v Croasdale  EWHC 1336 (QB) the Court did grant permission to withdraw a pre-action admission when the value of the case increased dramatically from under £25,000 to millions of pounds. Similar to our matter, the case began life in the MOJ Portal in which the pre-action admission was made. Although no new evidence came to light, the Defendant’s position was that it was known from the outset that the Claimant was likely to have been involved in criminal activity at the time of the accident, which meant they appeared to have an “ex turpi” defence. It appears they elected not to run such a defence on the basis it would not be proportionate in a low value car accident matter. When the case value increased dramatically, they argued, there was now good reason to defend the case after all. In allowing the application the Judge noted that as the Claimant suffered brain damage, there was no prejudice as the evidence he could give now was the same as it always would have been. Again therefore the question of prejudice was perhaps key.
Where does this leave us? Whilst each case will be determined on its own merits, and the criteria are set out in the Practice Direction to CPR 14, which means there is no need for senior court guidance, the balance of case law suggests defendants perhaps face a difficult burden to discharge. Blake was a case in which illegal activity was alleged and a case worth millions of pounds was presented instead as a low value MOJ Portal matter. Wood on the other hand, like the matter in question, concerned the situation in which the evidential position years on from the admission, was quite different, to the detriment of the Claimant.
The common thread might perhaps be “prejudice” i.e. is it fair to the Claimant to pull the rug from under them when key items of evidence might be no longer available? This will be the case in the majority of matters, Blake is perhaps an exception in that a brain damaged client’s evidence would not realistically change over time, and when facing a claim worth millions of pounds, and alleged illegality, there are very high stakes for the defendant, combined with public policy considerations.
However, on the face of it the two High Court decisions are difficult to distinguish and as such the law in this area is likely to remain uncertain though with perhaps a favourable balance to the Claimant as the burden, which appears a tough one, remains for the Defendant to overcome.
If you have experienced a similar situation in your case and would like to discuss it further with an experienced solicitor, feel free to get in touch on 0161 447 9191 or email@example.com.
By James Winterbottom, Solicitor