Olivia Mayhew, Trainee Solicitor in Employer’s Liability, reports on her achievement for her client in this recent case.
The Defendant made an Application to withdraw their admission of liability in February 2023, some 2 months after their Defence had been filed and 34 months after their admission of liability in the Portal. The Defendant sought to withdraw their admission based on their belief that they had a realistic prospect of defending the matter based on reconsideration of evidence.
The Defendant was invited to confirm their full liability response in writing on 3 occasions prior to issuing proceedings. We had also attempted to conduct stage 2 proceedings (via email as we were unable to access the Portal). The Defendant responded and formally withdrew their admission as to causation but maintained that breach of duty was admitted in September 2022. We disclosed all medical evidence and invited the Defendant to make an offer. The Defendant responded and provided their details for service.
The Claim was issued on the Damages Claims Portal in October 2022.
The Defendant maintained breach of duty in their Defence and made no admission as to causation. The Defendant made the Application to withdraw their admission on 31st January 2023.
Prior to the Hearing, the Defendant solicitors invited us to consent to their Application. In requesting this, the Defendant argued that they had successfully withdrawn their admission of liability at an early stage (in September 2022) when they withdrew their admission of causation. It was our case that this was entirely incorrect as they had maintained that breach of duty was accepted throughout. At no point was it ever communicated to us that the Defendant intended to fully withdraw their admission of liability. Further, their breach of duty was reiterated in their Defence.
In opposing the Application, we argued the following:
- There was no reasonable explanation as to why this “reconsideration of evidence” came 2 years and 8 months following an admission of liability. It would seem odd that this accident took entry was not available and considered until after an admission of liability was made.
- There was ample time between August 2022 and February 2023 (when a new file handler took conduct) to formally withdraw their admission, and certainly if this was the Defendant’s intention, we would have expected that to be commented upon in the Defence.
- The Claimant would have been at a significant disadvantage in trying to obtain any evidence having relied entirely on an admission of liability for the duration of the claim.
The Court dismissed the Application entirely and gave the following 8 reasons for doing so:
- There is no fresh evidence which the Defendant relies upon which changes the facts or circumstances of their admission. They rely upon a document dated 20th April 2020 so was available before either admissions.
- There was a repetition of the admission with no clear or valid reasons why this was done.
- They have been represented in respect of these proceedings. So not acting as litigants in person.
- Prejudice will be caused to the Claimant since proceedings are now over 2.5 years on as Claimant did not, therefore, pursue making its investigations and gathering of evidence regarding establishing liability. There is a risk of making it much harder for the Claimant to gather this evidence after this time.
- Work has already been carried out with regard to these proceedings which will need to restart and be paid for again.
- The circumstances is entirely of the Defendant’s own making and without any or any proper reasons why evidence and the Defendant’s position was not considered properly and thoroughly in the first place before making admissions twice.
- Trust and confidence would be lost in the civil system if there cannot be reliance by the public on admissions made by parties.
- There is no proposed amended Defence available.
Costs were awarded in the case.
Olivia Mayhew provided her personal insight into the case as follows:
“I am thrilled by this outcome. In writing my statement of opposition to the Court, I considered previous outcomes in similar situations where the Judge had allowed the Defendant Application to resile from their admission. My understanding of this reasoning (in granting the Defendant’s Application to resile), is that it would prejudice the Defendant if an admission stood when the Defendant had satisfactory evidence to defend the case.
Whilst I can understand this reasoning, I felt that should the Defendant be allowed to resile from their admission after not only maintaining it in correspondence prior to issuing but also maintaining the admission in their Defence, the Claimant would be significantly prejudiced.
The Claimant had been wholly reliant on an admission of liability for the best part of 3 years and would be significantly prejudiced in trying to obtain contemporaneous evidence at the stage. The Defendant sought to rely on a piece of evidence that would, and should, have been available to them 2 months prior to their admission of liability. The Defendant referred to this as “new evidence that had come to light” but had failed to disclose it or withdraw their admission in the 34 months the document was in existence, prior to making the Application.
The factors considered in the Hearing are those of CPR 14.1A(3)b), PD 7.2 which I had addressed in my statement and Kieran Alker considered in his skeleton argument.
Fortunately, the Judge considered each of these points with equal weight and listed 8 factors in reaching her decision.
It was clear that the timing of making this Application was a large factor as it was apparent that there were numerous opportunities for the Defendant to both consider the evidence and formally withdraw their admission at an earlier stage. Finally, the Judge noted the prejudice that would be caused to the Claimant and there is a risk of making it much harder to gather the evidence at this time”.
The Application was dismissed entirely.
Overall, a wonderful outcome and hopefully one that can be referred to when claims brought for clients by Express Solicitors receive future Applications from Defendants to resile from admissions in similar situations.