LONDON SOLICITORS LITIGATION ASSOCIATION

Response to HMCS consultation on Pre-Action Admissions

The London Solicitors Litigation Association (LSLA) is over 50 years old and represents the interests of a wide range of litigators in London handling a broad range of civil and commercial litigation. Through about 800 solicitor members and strong links with a wide number of professional bodies, it represents nearly all civil litigation practices in London. The LSLA operates through a Committee of 24 members which include members of the Civil Justice Council, Civil Procedure Rules Committee, Law Society Civil Litigation Committee, the Commercial Court Users Committee, the Supreme Court Lists Group and local Law Societies. The Association has a long track record of responding to consultation papers and has drawn on a wide range of views in responding to the current consultation paper.

Question 1: Should pre-action admissions be given some weight by the civil procedure rules?

Before answering the specific questions posed, it is necessary to make clear that, in our view:

· The decision of the Court of Appeal in Sowerby v Charlton was correct.

· This decision highlighted what is a lacuna in the CPR since the CPR regime ought to be at least as accommodating to the concept of pre-action admissions as were the pre-CPR rules. A party should be able to apply for judgment on the basis of a pre action admission

· This consultation, and our comments, is not concerned with the procedure for obtaining judgment as of right following the filing of an admission in the prescribed form pursuant to CPR 14.4, 14.5, 14.6 and 14.7 – which regime does not need alteration.

a) Should a defendant require the permission of the court to withdraw an admission made before the action proper was commenced (ie the claim form was issued)?

We think it is unhelpful to consider this issue in terms of “permission”. It would not be possible for the defendant to obtain such permission pre-action and so the implication here is that, after an action has been commenced, the defendant would have to file an application for permission to withdraw his admission, presumably at the same time as filing a defence that was inconsistent with that admission. We think such an application is unnecessary. The defence should speak for itself. The procedural "opportunity" and need to withdraw a pre-action admission will be in opposition to an application made for judgment where the claimant will have pleaded the defendant’s admission in support of his claim. It is for the court to determine whether or not the defendant should be bound to that admission in accordance with a balancing test (see below). Unless and until the claimant has obtained a judgment on the admission, the claimant proceeds in the knowledge that, subject to that balancing test, it will remain open to the defendant to seek to resist liability.

b) Should a claimant be able to apply for a judgment on the basis of a pre-action admission which was withdrawn before the action was commenced?

Yes, the claimant should be able to apply. Whether or not the defendant is to be held to such an admission should be determined in accordance with the balancing test (see below). The Claimant can also apply to strike out the Defence or part of it under CPR r.3.4 if he can show that the withdrawal of an admission was an abuse of the processs of the court, the Defendant having acted in bad faith.

c) It could be generally assumed that continued investigation of an admitted point by the claimant following admission on that point will carry adverse cost consequences, to be ordered under the court’s general powers at 44.3. Should a specific costs exclusion also be created?

No. CPR 44.3 is more than sufficient to cater for the variety of situations that could prevail, particularly bearing in mind CPR 44.3(5) which, amongst other things, directs the court to take into account the conduct of the parties before proceedings and whether or not it was reasonable for a party to pursue a particular issue. The circumstances that could prevail will vary so much that any attempt to codify the cost consequences will either be so rigid as to risk causing injustice or so vague as to be meaningless.

Question 2: What constitutes an admission?

a) How strictly should a revised rule circumscribe the form of an admission? For example, it could specify that a Part 14 admission be made in writing, or possibly via a practice form.

There is no need to provide for a practice form in any case where the judgment is not available as of right. Therefore, other than the situations catered for by CPR rules 14.4 - 14.7 (where a prescribed form is required), there need be no particular formalities other than that the admission must somehow be evidenced in writing. The admission can be made either by the defendant himself or his representatives and at any time. Having said that, the form of the admission may carry great weight in determining whether or not the defendant should be held to it. We do not consider that the rule should apply to verbal admissions, unless subsequently confirmed in writing. Applications for judgement on a verbal admission will be incapable of being determined without witness evidence.

b) Should a written admission only be applicable if made after receipt of a pre-action letter?

No, there should be no requirement for a pre-action letter to be received beforehand. There seems to be no good reason why, in principle, a defendant could not be held to an admission made prior to receipt of a pre-action letter. However, whether or not a pre-action letter had been received will form part of the context in which the court applies the balancing test (see below). A requirement for a pre-action letter to have been received first would not safeguard against satellite litigation. On the contrary, it would be likely to create satellite litigation concerning whether or not a particular letter constituted a pre-action letter and/or whether or not any such letter had been (deemed to be) received, etc.

Question 3: Should a test for withdrawal be introduced?

a) Should the current rule at 14.1(5) be strengthened by inclusion of a test for withdrawal?

Yes.

b) Would a simple, factual test be appropriate, for example that new evidence has come to light which alters the defendant’s prospects of success?

No, this would not be sufficient to do justice in the variety of circumstances that could prevail.

c) Would a more detailed, balancing test be appropriate, such as that set out by Sumner J in Braybrook v Basildon & Thurrock University NHS Trust?

Yes. We consider that the criteria identified by Sumner J provide appropriate guidance for the court to apply in excercising its discretion. It might also be appropriate to expressly empower the court to impose conditions on any defendant (including as to costs, security, inability to run limitation defences) who has successfully resisted the claimant’s application for judgment).

d) Should different tests be applicable to withdrawal of pre– and post-action admissions?

No, the proper application of the criteria identified by Sumner J will allow appropriate consideration to be given to the circumstances.

e) Should the court have the power to refuse withdrawal in the interests of the administration of justice, even if all parties agree that an admission should be withdrawn?

No. We would go so far as to say that it would be contrary to the interests of the administration of justice for the court to impose an admission on the parties in circumstances where all the parties were agreed that the admission should be withdrawn.

Question 4: Specific Defence Situations

a) What should be the consequences of a defence of limitation after an admission being made?

The position should be unaffected. The claimant should remain responsible for protecting his position if necessary by issuing a claim form where the defendant has made a pre action admission but settlement has not been concluded.

However the passing of a limitation period in circumstances where a pre action admission has been made and relied upon should be a factor which is taken into account when the balancing test is applied.

b) What should be the consequence if a new defence is exposed?

This could constitute one of the reasons for permitting a defendant to resile from an earlier admission and will be one of the factors that fall for consideration when applying the balancing test.

c) What should be the consequence of a defence which only becomes apparent after an admission has been made (eg new evidence)?

Once again this could constitute one of the reasons for permitting a defendant to resile from an earlier admission, for consideration in accordance with the balancing test.

5 October 2006

Question 4: Specific Defence Situations

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