This brief article considers the law on admissions made before the commencement of proceedings in the context of the recent revision of Part 14 of the CPR.
The law concerning the status of pre-action admissions has, one suspects, been a matter of little concern to most litigators for many years. The reason for this can be traced back to two decisions of the Court of Appeal and a subsequent change to the CPR.
- In Sowerby v Charlton [2005] EWCA Civ 1610 it was held that the words of CPR 14.1(1) (as it then was) “A party may admit the truth of the whole or any part of another party’s case” did not apply to a pre-action admission.
- Walley v Stoke-on-Trent City Council [2006] EWCA Civ 1137 was a case in which determined that if one party wished to hold another party to a pre-action admission, the appropriate route would be a strike out application under CPR 3.4(1)(b). Unsurprisingly, this was recognised as a high threshold. The Court explained that to show the withdrawal of an admission (i) amounts to an abuse of process, it would usually be necessary to show that the defendant had acted in bad faith, or (ii) is likely to obstruct the just disposal of the case, it would usually be necessary for the claimant to show that he would suffer some prejudice affecting the fairness of the trial. Bad faith was not alleged and so the claimant failed under the first limb. As to the second limb the only prejudice was disappointment, and, notwithstanding that “the loss of an admission of full liability must create a sense of uncertainty, turmoil, even despair”,the Court doubted that such feelings could ever be said to obstruct the just disposal of the case.
- In response, it would appear, to Sowerby, Part 14 was amended with the introduction of what was (until very recently) CPR 14.1A, making specific provision for pre-action admissions, but, importantly, applicable only to certain types of proceedings listed in the Practice Direction (proceedings to which pre-action protocols for personal injury claims/resolution of clinical disputes/disease and illness claims apply).
Subsequent authorities such as White v Greensand Homes Ltd [2007] EWCA Civ 643 and Gunn (t/a Chipperfield Garden Machinery) v Taygroup Ltd [2010] EWHC 1665 (TCC) illustrate the difficulty facing claimants, applying Walley, in seeking to hold defendants to admissions made pre-action.
The Civil Procedure (Amendment No. 3) Rules 2023 (SI 2023/788) introduced a replacement and simplified version of Part 14 with effect from 1 October 2023. For present purposes it is notable that the rule on pre-action admissions (now CPR 14.1)) contains no provision limiting it to certain categories of proceedings. Rather, the new rule applies to admissions made in civil proceedings of any description.
There are several striking consequences of the above, which would now apply in, for example, a property or commercial contract dispute:
- Where one party wishes to withdraw an admission made pre-action that party may only withdraw it (pre-action) with the agreement of the person to whom the admission was made (CPR 14.1(b));
- Post-issue, the maker of the pre-action admission may apply to the court for permission to withdraw it (CPR 14.1(2)(b));
- In deciding whether to give permission for an admission to be withdrawn, the court shall consider all the circumstances of the case including seven specific matters (for example, the conduct of the parties) (CPR 14.5);
- Post-issue, any party may apply to the court for judgment on the pre-action admission (CPR 14.1(2)(a)).
The recently revised CPR Part 14 very significantly extends the scope of the formal procedural rule which applies to pre-action admissions. Furthermore, it is implicit that the old law (set out in Walley) does not apply with withdrawals of such admissions, rather, the court will have to apply the broad test set out in CPR 14.5. It is not difficult to see that Denton may also have a role to play, particularly in light of the Court of Appeal’s recent decision in FXF v English Karate Federation Ltd [2023] EWCA Civ 891. It is likely that we can expect pre-action admissions to become increasingly important in civil litigation and the subject of scrutiny by the courts.
Christopher Buckingham
Disclaimer: This article has been prepared for informational purposes only, is general in its nature and should not construed and/or relied upon as giving legal advice.
